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$335,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 24, 1999
Among
UNITED INDUSTRIES CORPORATION,
as Borrower,
and
THE INITIAL LENDERS, THE SWING LINE BANK AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Initial Lender Parties,
and
NATIONSBANC MONTGOMERY SECURITIES LLC
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Arrangers,
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication Agent,
and
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Lead Arranger and Book Manager,
and
NATIONSBANK, N.A.,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................................................-3-
SECTION 1.02. Computation of Time Periods; Other Constructional Provisions...........................-42-
SECTION 1.03. Accounting Terms.......................................................................-43-
SECTION 1.04. Currency Equivalents Generally.........................................................-43-
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit...............................-43-
SECTION 2.02. Making the Advances....................................................................-46-
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.....................-49-
SECTION 2.04. Repayment of Advances..................................................................-51-
SECTION 2.05. Termination or Reduction of the Commitments............................................-54-
SECTION 2.06. Prepayments............................................................................-55-
SECTION 2.07. Interest...............................................................................-59-
SECTION 2.08. Fees...................................................................................-60-
SECTION 2.09. Conversion of Advances.................................................................-60-
SECTION 2.10. Increased Costs, Etc...................................................................-62-
SECTION 2.11. Payments and Computations..............................................................-64-
SECTION 2.12. Taxes..................................................................................-67-
SECTION 2.13. Sharing of Payments, Etc...............................................................-70-
SECTION 2.14. Defaulting Lenders.....................................................................-70-
SECTION 2.15. Use of Proceeds........................................................................-73-
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCE OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit....................................-73-
SECTION 3.02. Conditions Precedent to Effectiveness of this Agreement................................-81-
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and Renewal...........................-83-
SECTION 3.04. Determinations Under Section 3.02......................................................-84-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties.........................................................-84-
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants..................................................................-93-
SECTION 5.02. Negative Covenants.....................................................................-99-
SECTION 5.03. Reporting Requirements................................................................-120-
SECTION 5.04. Financial Covenants...................................................................-126-
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.....................................................................-130-
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default..............................-133-
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action..............................................................-133-
SECTION 7.02. Administrative Agent's Reliance, Etc..................................................-134-
SECTION 7.03. NationsBank, NMS, MSSF, CIBC and Affiliates...........................................-135-
SECTION 7.04. Lender Credit Decision................................................................-135-
SECTION 7.05. Indemnification.......................................................................-135-
SECTION 7.06. Successor Administrative Agent........................................................-137-
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.......................................................................-138-
SECTION 8.02. Notices, Etc..........................................................................-139-
SECTION 8.03. No Waiver; Remedies...................................................................-140-
SECTION 8.04. Costs and Expenses; Indemnification...................................................-140-
SECTION 8.05. Right of Setoff.......................................................................-142-
SECTION 8.06. Binding Effect........................................................................-142-
SECTION 8.07. Assignments and Participations........................................................-142-
SECTION 8.08. No Liability of the Issuing Bank......................................................-147-
SECTION 8.09. Confidentiality.......................................................................-147-
SECTION 8.10. Execution in Counterparts.............................................................-148-
SECTION 8.11. Governing Law; Jurisdiction, Etc......................................................-148-
SECTION 8.12. Waiver of Jury Trial..................................................................-148-
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SCHEDULES
Schedule I - Existing Letters of Credit; Commitments and Applicable Lending Offices
Schedule 3.01(f) - Surviving Indebtedness
Schedule 3.02(b) - Disclosed Litigation
Schedule 4.01(b) - Subsidiaries; Equity Interests in the Borrower
Schedule 4.01(d) - Required Authorizations, Approvals, Etc.
Schedule 4.01(y) - Open Years
Schedule 4.01(cc) - Existing Liens
Schedule 4.01(dd) - Owned and Leased Real Property
Schedule 4.01(ee) - Existing Investments
Schedule 5.02(j) - Existing Dividend and Other Payment Restrictions
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Swing Line Borrowing
Exhibit B-3 - Form of Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Holdings LLC Agreement
Exhibit F-1 - Form of Solvency Opinion
Exhibit F-2 - Form of Solvency Certificate
Exhibit G-1 - Form of Opinion of Special Counsel to the Loan Parties
Exhibit G-2 - Form of Opinion of Special Missouri Counsel for the Lender Parties
Exhibit H - Terms of Subordination
Exhibit I - Form of Subsidiaries Guarantee
Exhibit 10.15
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 24, 1999 among
UNITED INDUSTRIES CORPORATION, a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders listed on the
signature pages hereof under the caption "Initial Lenders" (the "Initial
Lenders"), NATIONSBANK, N.A. ("NationsBank"), as provider of the Swing Line
Facility (as hereinafter defined) (in such capacity, the "Swing Line Bank") and
initial issuer of Letters of Credit (as hereinafter defined) (in such capacity,
the "Initial Issuing Bank"), NATIONSBANC MONTGOMERY SECURITIES LLC ("NMS") and
MORGAN STANLEY SENIOR FUNDING, INC. ("MSSF"), as co-arrangers (the
"Co-Arrangers") for the Facilities (as hereinafter defined), CANADIAN IMPERIAL
BANK OF COMMERCE ("CIBC"), as documentation agent (the "Documentation Agent")
for the Facilities, MSSF, as syndication agent (the "Syndication Agent") for the
Facilities, NMS, as lead arranger and book manager (the "Lead Arranger and Book
Manager") for the Facilities, and NationsBank, as administrative and collateral
agent (together with any successor thereto appointed pursuant to Article VII,
the "Administrative Agent") for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) The Thomas H. Lee Company, a sole proprietorship ("THL"), organized UIC
Holdings, L.L.C., a Delaware limited liability company ("Holdings LLC"), which
upon consummation of the Recapitalization (as hereinafter defined) acquired
control of the Borrower.
(2) Pursuant to the terms of the Recapitalization Agreement (as hereinafter
defined) and the Agreement dated as of January 1, 1999 (the "Reorganization
Agreement") between the Borrower and its wholly owned subsidiary, DW-Wej-it,
Inc., a Delaware corporation ("DW"), on or prior to the Closing Date (as
hereinafter defined), the Borrower (a) contributed all of its assets primarily
used in or related to the manufacturing and marketing of construction anchoring
fasteners and providing contract manufacturing services in metals fabrication
(collectively, the "Metals Business") to DW, and DW assumed all of the
liabilities and Obligations (as hereinafter defined) of the Borrower related to
the Metals Business and (b) distributed to certain of the Sellers (as
hereinafter defined) all of the outstanding shares of capital stock of DW owned
by the Borrower (such contribution and distribution being, collectively, the
"Pre-Closing Reorganization").
(3) Furthermore, pursuant to the terms of the Agreement and Plan of
Recapitalization, Purchase and Redemption dated as of December 24, 1998 (as
amended by Amendment No. 1 dated as of January 20, 1999 and Amendment No. 2
dated January 25, 1999 and as further amended, supplemented or otherwise
modified from time to time hereafter in accordance with its terms, to the extent
permitted under the terms of the Loan Documents (as hereinafter defined), the
"Recapitalization Agreement") among Holdings LLC, the Borrower and the sellers
of the Borrower listed on Exhibit A thereto (the "Sellers"), as of the Closing
Date, (a) THL contributed to Holdings LLC $254,680,000 in exchange for all of
the outstanding Equity Interests (as hereinafter defined) in Holdings LLC, and
the Borrower lent to Holdings LLC $5,700,000 in exchange for (i) a promissory
note in an original principal amount equal to $4,700,000 (the "Managers Note")
and (ii) a promissory note in an original principal amount equal to $1,000,000,
which promissory note was co-signed by certain of the THL Entities (as
hereinafter defined) (the "Employees Note"), (b) Holdings LLC purchased from the
Sellers in the aggregate 312.2872 shares of outstanding Class A voting common
stock of the Borrower, par value $1.00 per share (the "UIC Class A Common
Stock"),
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and 312.2872 shares of outstanding Class B nonvoting common stock of the
Borrower, par value $1.00 per share (the "UIC Class B Common Stock" and,
together with the UIC Class A Common Stock, the "UIC Common Stock"), for an
aggregate purchase price of $260,380,000 and (c) the Borrower redeemed 407.7796
shares of outstanding UIC Class A Common Stock and 407.7796 shares of
outstanding UIC Class B Common Stock for an aggregate redemption price of
$340,000,000, as adjusted pursuant to Section 2.1 of the Recapitalization
Agreement. In connection with the transactions described in the immediately
preceding sentence, (A) the Borrower immediately thereafter effected a stock
split of approximately 83,378 to one, in the case of each of the UIC Class A
Common Stock and the UIC Class B Common Stock, (B) certain executive officers of
the Borrower purchased in the aggregate 470,000 shares of UIC Class A Common
Stock and 470,000 shares of UIC Class B Common Stock for an aggregate purchase
price of $4,700,000, whereupon an equal number of shares of UIC Class A Common
Stock and UIC Class B Common Stock were contributed by Holdings LLC to the
Borrower in full satisfaction of the Managers Note, and (C) the Borrower agreed
to sell to certain employees of the Borrower (at their option) on or prior to
April 20, 1999 100,000 shares of UIC Class A Common Stock and 100,000 shares of
UIC Class B Common Stock, whereupon an equal number of shares of UIC Class A
Common Stock and UIC Class B Common Stock will be contributed by Holdings LLC to
the Borrower in full satisfaction of the Employees Note (and, if on April 20,
1999 all such shares have not been so purchased by such employees of the
Borrower, then Holdings LLC will contribute to the Borrower an amount equal to
the product of (1) the number of such shares not so purchased multiplied by (2)
$5.00 (which obligation of Holdings LLC to make such contribution has been
guaranteed by certain of the THL Entities)). The contribution and loan described
above in clause (a) of this Preliminary Statement (3), the purchase described
above in clause (b) of this Preliminary Statement (3), the redemption described
above in clause (c) of this Preliminary Statement (3), the stock splits
described above in clause (A) of the immediately preceding sentence and the
purchases, contributions and sales described above in clauses (B) and (C) of the
immediately preceding sentence are, collectively, the "Recapitalization". Upon
consummation of the Recapitalization (and assuming that all shares offered in
connection with the transaction described above in clause (C) have been
purchased by employees of the Borrower, but without giving effect to the
dilution, if any, caused by an option pool exercisable into 2,000,000 shares of
UIC Class A Common Stock and 2,000,000 shares of UIC Class B Common Stock),
Holdings LLC owned 91.94% of the outstanding UIC Class A Common Stock and 91.94%
of the outstanding UIC Class B Common Stock, and the Sellers retained 6% of the
outstanding UIC Class A Common Stock and 6% of the outstanding UIC Class B
Common Stock.
(4) In connection with the consummation of the Recapitalization, the
Borrower entered into a Credit Agreement dated as of January 20, 1999 (the
"Existing Credit Agreement") with the banks, financial institutions and other
institutional lenders party thereto (the "Existing Lenders"), NationsBank, as
provider of the swing line facility and initial issuer of letters of credit
thereunder, NMS and MSSF, as co- arrangers therefor, CIBC, as documentation
agent therefor, MSSF, as syndication agent thereunder, NMS, as lead arranger
therefor, and NationsBank, as administrative and collateral agent for the
Existing Lenders and the other existing lender parties. Pursuant to the terms of
the Existing Credit Agreement, the Existing Lenders made advances available to
the Borrower and the Initial Issuing Bank issued letters of credit for the
account of the Borrower from time to time prior to the date of this Agreement in
an aggregate outstanding principal amount of $242,887,000 ($2,887,000 of which
are outstanding Swing Line Advances made by the Swing Line Bank) in order to
finance the redemption of 55.11% of each class of outstanding UIC Common Stock
from the Sellers as part of the Recapitalization, to pay fees and expenses
incurred in connection with the consummation of the Transaction (as hereinafter
defined) and to provide working capital to, and for other general corporate
purposes of, the Borrower and its Subsidiaries (as hereinafter defined).
-3-
(5) The Borrower has requested that the Lender Parties amend and restate
the terms of the Existing Credit Agreement in its entirety and agree to lend to
the Borrower from time to time up to $335,000,000 at any time outstanding in
order to refinance all of the outstanding advances (the "Existing Advances")
made to the Borrower by the Existing Lenders under the Existing Credit
Agreement, to pay certain fees and expenses incurred in connection with the
consummation of the Transaction and to provide working capital to, and for other
general corporate purposes of, the Borrower and its Subsidiaries not otherwise
prohibited under the terms of the Loan Documents. The Lender Parties have
indicated their willingness to amend and restate the Existing Credit Agreement
in its entirety and to lend such amounts and to issue Letters of Credit on the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
NationsBank at its office at 101 North Tryon Street, 15th Floor,
NC1-001-15-04, Charlotte, North Carolina 28255, ABA No. 053-000-196,
Account No. 13662122506, Reference: United Industries Corporation,
Attention: Corporate Credit Services, or such other account maintained by
the Administrative Agent and designated by the Administrative Agent as such
in a written notice to the Borrower and each of the Lender Parties.
"Advance" means a Term A Advance, a Term B Advance, a Revolving Credit
Advance, a Swing Line Advance or a Letter of Credit Advance, as the context
may require.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person or,
with respect to an individual, has a relationship with such individual by
blood, adoption or marriage not more remote than first cousin. For purposes
of this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests in such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Lead
Arranger and Book Manager, the Syndication Agent, the Documentation Agent,
the Co-Arrangers and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 7.01(b).
-4-
"Agreement Value" means, with respect to each Hedge Agreement on any
date of determination, an amount equal to the greater of:
(a) (i) in the case of any Hedge Agreement documented pursuant to
the ISDA Master Agreement, the amount, if any, that would be payable
by any of the Loan Parties or any of their Subsidiaries to its
counterparty to such Hedge Agreement, as if (A) such Hedge Agreement
was being terminated early on such date of determination, (B) such
Loan Party or such Subsidiary, as the case may be, was the sole
Affected Party (as defined in the applicable Master Agreement) and (C)
the Administrative Agent was the sole party determining such payment
amount (with the Administrative Agent making such determination
pursuant to the provisions of the form of Master Agreement); or (ii)
in the case of a Hedge Agreement traded on an exchange, the
mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or the
Subsidiary of a Loan Party party to such Hedge Agreement (determined
by the Administrative Agent based on the settlement price of such
Hedge Agreement on such date); or
(b) in all cases, the mark-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement
to the Loan Party or the Subsidiary of a Loan Party party to such
Hedge Agreement (determined by the Administrative Agent based on the
amount, if any, by which (i) the present value of the future cash
flows to be paid by such Loan Party or such Subsidiary of a Loan
Party, as the case may be, exceeds (ii) the present value of the
future cash flows to be received by such Loan Party or such Subsidiary
of a Loan Party pursuant to such Hedge Agreement).
"Applicable Lending Office" means (a) with respect to each of the
Lenders, the Base Rate Lending Office of such Lender in the case of a Base
Rate Advance and the Eurodollar Lending Office of such Lender in the case
of a Eurodollar Rate Advance and (b) with respect to the Swing Line Bank or
the Issuing Bank, the Base Rate Lending Office of the Swing Line Bank or
the Issuing Bank, respectively, for all purposes of this Agreement.
"Applicable Margin" means (a) with respect to the Term B Facility, a
rate equal to 2.25% per annum for Base Rate Advances and 3.25% per annum
for Eurodollar Rate Advances and (b) with respect to the Term A Facility
and the Revolving Credit Facility, (i) at any time during the period from
the date of this Agreement through the earlier of (A) the date on which the
Required Financial Information for the Fiscal Quarter ending September 30,
1999 is delivered to the Administrative Agent and the Lender Parties
pursuant to Section 5.03(c) and (B) November 15, 1999, a rate equal to
1.75% per annum for Base Rate Advances and 2.75% per annum for Eurodollar
Rate Advances and (ii) at any time and from time to time thereafter, a rate
per annum equal to the percentage set forth below opposite the applicable
Performance Level at such time:
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Performance Term A/Revolving Credit Term A/Revolving Credit
Level Eurodollar Rate Advances Base Rate Advances
---------------------------------------------------------------------------
1 2.00% 1.00%
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II 2.25% 1.25%
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III 2.50% 1.50%
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Performance Term A/Revolving Credit Term A/Revolving Credit
Level Eurodollar Rate Advances Base Rate Advances
---------------------------------------------------------------------------
IV 2.75% 1.75%
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For purposes of subclause (b)(ii) of the immediately preceding sentence,
the Applicable Margin for each Base Rate Advance shall be determined by
reference to the Performance Level in effect from time to time and the
Applicable Margin for each Eurodollar Rate Advance shall be determined by
reference to the Performance Level in effect on the first day of each
Interest Period.
"Applicable Percentage" means, with respect to the Commitment Fee, (a)
at any time during the period from the date of this Agreement through the
earlier of (i) the date on which the Required Financial Information for the
Fiscal Quarter ending September 30, 1999 is delivered to the Administrative
Agent and the Lender Parties pursuant to Section 5.03(c) and (ii) November
15, 1999, 0.500% per annum and (b) at any time and from time to time
thereafter, a percentage per annum equal to the applicable percentage set
forth below for the Performance Level set forth below:
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Performance Level Commitment Fee
---------------------------------------------------------------------------
I 0.375%
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II 0.500%
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III 0.500%
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IV 0.500%
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For purposes of clause (b) of the immediately preceding sentence, the
Applicable Percentage for the Commitment Fee shall be determined by
reference to the Performance Level in effect from time to time.
"Application Date" has the meaning specified in Section 2.06(b)(vii).
"Appropriate Lender" means, at any time, (a) with respect to either of
the Term Facilities or the Revolving Credit Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) with respect to
the Swing Line Facility, (i) the Swing Line Bank and (ii) if the Revolving
Credit Lenders have made Swing Line Advances pursuant to Section
2.02(b)(ii) that are outstanding at such time, each such Revolving Credit
Lender and (c) with respect to the Letter of Credit Facility, (i) the
Issuing Bank and (ii) if the Revolving Credit Lenders have made Letter of
Credit Advances pursuant to Section 2.03(c)(i) that are outstanding at such
time, each such Revolving Credit Lender.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in syndicated bank loans, any other fund that also invests in
syndicated bank loans and is advised or managed by the same investment
advisor as such Lender or an Affiliate of such investment advisor.
"Assigned Agreements" has the meaning specified in Section 1(d) of the
Security Agreement.
-6-
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Borrower, in accordance with
Section 8.07 and in substantially the form of Exhibit C hereto.
"Available Amount" means, with respect to any Letter of Credit at any
time, the maximum amount available to be drawn under such Letter of Credit
at such time (assuming compliance at such time with all conditions to
drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest established by NationsBank from time to time
as its prime rate (which rate of interest may not be the lowest rate of
interest charged by NationsBank to its customers); and
(b) the Federal Funds Rate plus 0.50%.
Any change in the Base Rate resulting from a change in the prime rate
established by NationsBank shall become effective on the Business Day on
which such change in the prime rate is announced by NationsBank.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to each of the Lender
Parties, the office of such Lender Party specified as its "Base Rate
Lending Office" opposite its name on Part B of Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party, as
the case may be, or such other office of such Lender Party as such Lender
Party may from time to time specify to the Borrower and the Administrative
Agent for such purpose.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with NationsBank at its offices at 800 Market Street, St.
Louis, Missouri 63101, Account No. 010100131794, Reference: United
Industries Corporation, or such other account of the Borrower as is agreed
in writing from time to time between the Borrower and the Administrative
Agent.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a Revolving
Credit Borrowing or a Swing Line Borrowing, as the context may require.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Charlotte, North
Carolina and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in U.S. dollar deposits in the
London interbank market.
"Capital Assets" means, with respect to any Person, all equipment,
fixed assets and real property or improvements of such Person, or
replacements or substitutions therefor or additions
-7-
thereto, that, in accordance with GAAP, have been or should be reflected as
additions to property, plant or equipment on the balance sheet of such
Person.
"Capital Expenditures" means, with respect to any Person for any
period, (a) all expenditures made directly or indirectly by such Person
during such period for Capital Assets (whether paid in cash or other
consideration or accrued as a liability, and including, without limitation,
all expenditures for maintenance and repairs which, in accordance with
GAAP, have been or should be capitalized on the balance sheet of such
Person) and (b) solely to the extent not otherwise included in clause (a)
of this definition, the aggregate principal amount of all Indebtedness
(including, without limitation, Obligations in respect of Capitalized
Leases) assumed or incurred during such period in connection with any such
expenditures for Capital Assets. For purposes of this definition, the
purchase price of equipment that is purchased with the trade-in of existing
equipment or the cash proceeds of the sale or other disposition of existing
equipment pursuant to Section 5.02(d)(iv) or with insurance proceeds shall
be included in Capital Expenditures only to the extent of the gross amount
by which such purchase price exceeds the credit granted by the seller of
such equipment for the equipment being traded in, the amount of the cash
proceeds of any such sale or other disposition or the amount of such
insurance proceeds, as the case may be.
"Capitalized Lease" means any lease with respect to which the lessee
is required to recognize concurrently the acquisition of property or an
asset and the incurrence of a liability in accordance with GAAP.
"Carryover Capital Expenditure Amount" has the meaning specified in
Section 5.02(g).
"Cash Collateral Account" has the meaning specified in Preliminary
Statement (3) to the Security Agreement.
"Cash Distributions" means, with respect to any Person for any period,
all dividends and other distributions on any of the outstanding Equity
Interests in such Person, all purchases, redemptions, retirements,
defeasances or other acquisitions of any of the outstanding Equity
Interests in such Person and all returns of capital to the stockholders,
partners or members (or the equivalent persons) of such Person, in each
case to the extent paid in cash by or on behalf of such Person during such
period.
"Cash Equivalents" means any of the following types of Investments, to
the extent owned by the Borrower or any of its Subsidiaries free and clear
of all Liens (other than Liens created under the Collateral Documents):
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than 360 days
from the date of acquisition thereof; provided that the full faith and
credit of the United States of America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender
Party or (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia, or is the
principal banking subsidiary of a bank holding company organized under
the laws of the
-8-
United States of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System, (ii) issues
(or the parent of which issues) commercial paper rated as described
below in clause (c) of this definition and (iii) has combined capital
and surplus of at least $1,000,000,000, in each case with a maturity
of not more than one year from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the
laws of any state of the United States of America and rated at least
"Prime-1" (or the then equivalent grade) by Moody's Investors Service,
Inc. or at least "A-1" (or the then equivalent grade) by Standard &
Poor's Ratings Group, in each case with a maturity of not more than
180 days from the date of acquisition thereof; and
(d) Investments, classified as Current Assets of the Borrower or
any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which
are administered by financial institutions that have the highest
rating obtainable from either Moody's Investors Service, Inc. or
Standard & Poor's Ratings Group, and the portfolios of which are
limited solely to Investments of the character and quality described
in clauses (a), (b) and (c) of this definition, in each case with a
maturity of not more than one year from the date of such Investment.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the United States
Environmental Protection Agency.
"Change of Control" means, at any time:
(a) the THL Entities shall cease to own and control legally and
beneficially, either directly or indirectly, Voting Interests in the
Borrower representing at least 51% of the combined voting power of all
of the Voting Interests in the Borrower (on a fully diluted basis);
(b) the THL Entities shall cease to have the ability, whether by
voting power, contract or otherwise, to elect a majority of the board
of directors of the Borrower;
(c) any Lien shall be created, incurred, assumed or otherwise
suffered to exist on any of the Equity Interests in the Borrower
(other than (i) Liens consisting solely of restrictions on the sale,
transfer or other disposition of the UIC Common Stock set forth in the
Stockholders Agreement and (ii) Liens on the UIC Common Stock owned or
otherwise controlled by one of more of the Equity Investors and
representing less than 20% of the outstanding UIC Common Stock (on a
fully diluted basis)); or
(d) with respect to any pledge or other security agreement
covering all or any portion of the Equity Interests in Holdings LLC
that are owned beneficially and of record by any of the THL Entities
or their nominees, any secured party or pledgee thereunder shall
become the holder of record of any such shares (except in the case of
a registration of the
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pledge of such Equity Interests to such secured party or pledgee
solely in its capacity as a pledgee) or shall exercise voting or other
consensual rights in respect thereof (whether by proxy, voting or
other similar arrangement or otherwise), or shall otherwise commence
to realize upon such shares.
"CIBC" has the meaning specified in the recital of parties to this
Agreement.
"Clean-Down Period" means a period of 30 consecutive days occurring
during the period between August 1 and November 30 in each calendar year.
"Closing Date" means January 20, 1999, the date on which the Initial
Extension of Credit occurred following the satisfaction of all of the
conditions precedent thereto set forth in Sections 3.01 and 3.03.
"Co-Arrangers" has the meaning specified in the recital of parties to
this Agreement.
"Collateral" means all of the "Collateral" referred to in the
Collateral Documents and all of the other property and assets that are or
are intended under the terms of the Collateral Documents to be subject to
Liens in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Collateral Documents" means, collectively, the Security Agreement,
each of the mortgages, collateral assignments, Security Agreement
Supplements, security agreements, pledge agreements or other similar
agreements delivered to the Administrative Agent and the Lender Parties
pursuant to Section 5.01(k) or 5.02(k), and each of the other agreements
that creates or purports to create a Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.
"Commitment" means a Term A Commitment, a Term B Commitment, a
Revolving Credit Commitment, a Swing Line Commitment or a Letter of Credit
Commitment, as the context may require.
"Commitment Date" has the meaning specified in Section 2.06(b)(vii).
"Commitment Fee" has the meaning specified in Section 2.08(a).
"Confidential Information" means any information that is furnished to
any of the Agents or any of the Lender Parties by or on behalf of the
Borrower or any of its Subsidiaries in a writing that either is
conspicuously marked as confidential or that a reasonable person would
believe is confidential or proprietary in nature, but does not include any
such information that (a) is or becomes generally available to the public
(other than as a result of a breach by any such Agent or any such Lender
Party of its confidentiality obligations under this Agreement) or (b) is or
becomes available to any of the Agents or any of the Lender Parties from a
source other than the Borrower or any of its Subsidiaries that is not, to
the knowledge of such Agent or such Lender Party, acting in violation of a
confidentiality agreement with the Borrower or any such Subsidiary.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
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"Consolidated Cash Interest Expense" means, with respect to any Person
for any period, the interest expense paid or payable on all Indebtedness of
such Person and its Subsidiaries (net of all interest income of such Person
and its Subsidiaries) for such period, determined on a Consolidated basis
and in accordance with GAAP, including, without limitation, (a) in the case
of the Borrower, (i) interest expense paid or payable in respect of
Indebtedness resulting from Advances and (ii) all fees paid or payable
pursuant to Section 2.08(a), (b) the interest component of all Obligations
in respect of Capitalized Leases, (c) commissions, discounts and other fees
and charges paid or payable in connection with letters of credit
(including, without limitation, the Letters of Credit) and (d) the net
payment, if any, paid or payable in connection with Hedge Agreements less
the net credit, if any, received in connection with Hedge Agreements, but
excluding (A) any amortization of original issue discount, (B) the interest
portion of any deferred payment obligation and (C) any other interest not
payable in cash.
"Consolidated EBITDA" means, with respect to any Person for any
period, (a) the Consolidated Net Income of such Person and its Subsidiaries
for such period plus (b) the sum of each of the following expenses that
have been deducted from the determination of the Consolidated Net Income of
such Person and its Subsidiaries for such period: (i) all interest expense
of such Person and its Subsidiaries (net of (A) all interest income of such
Person and its Subsidiaries for such period and (B) solely to the extent
otherwise excluded from the determination of the Consolidated interest
expense of such Person and its Subsidiaries for such period in accordance
with GAAP, any unrealized gains or losses on any interest rate Hedge
Agreements of such Person and its Subsidiaries resulting from the
mark-to-market value thereof as of the last day of such period), (ii) all
income tax expense (whether federal, state, local, foreign or otherwise) of
such Person and its Subsidiaries for such period, (iii) all depreciation
expense of such Person and its Subsidiaries for such period, (iv) all
amortization expense of such Person and its Subsidiaries for such period
and (v)(A) all noncash losses and noncash charges otherwise deducted from
the determination of the Consolidated Net Income of such Person and its
Subsidiaries for such period (other than any such noncash losses or noncash
charges that require an accrual or reserve for cash charges or cash
expenses paid or payable (or to be paid or payable) at any time during such
period and any write-downs or write-offs of accounts receivables) less (B)
all noncash gains and noncash credits otherwise added in the determination
of the Consolidated Net Income of such Person and its Subsidiaries for such
period, in each case determined on a Consolidated basis and in accordance
with GAAP for such period; provided, however, that, in the case of the
Borrower and its Subsidiaries, Consolidated EBITDA shall be increased to
include, solely to the extent any such amount is otherwise deducted in the
determination of the Consolidated Net Income of the Borrower and its
Subsidiaries for such period, (A) any nonrecurring cash restructuring
charges taken in accordance with GAAP in connection with the consummation
of the Recapitalization, (B) the aggregate amount of all transaction fees
paid in cash to the THL Entities during such period to the extent otherwise
permitted under Section 5.01(j)(vi) and (C) the nonrecurring cash charges
taken in accordance with GAAP during the Fiscal Year ended December 31,
1998 for severance payments to, and redemptions and repurchases of
outstanding UIC Common Stock (or warrants, rights or options to acquire UIC
Common Stock) from, former senior officers of the Borrower in an aggregate
amount of $2,955,000.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of any Person and its Subsidiaries for such period, determined on
a Consolidated basis and in accordance with GAAP, but excluding for each
such period (without duplication):
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(a) the income (or loss) of any other Person accrued prior to the
date on which it became a Subsidiary of such Person or was merged into
or consolidated with such Person or any of its Subsidiaries or all or
substantially all of the property and assets of such other Person were
acquired by such Person or any of its Subsidiaries;
(b) the income (or loss) of any other Person (other than a
Subsidiary of such Person) in which a Person other than such Person or
any of its Subsidiaries owns or otherwise holds an Equity Interest,
except to the extent such income (or loss) shall have been received in
the form of cash dividends or other distributions actually paid to
such Person or any of its Subsidiaries by such other Person during
such period;
(c) the income of any Subsidiary of such Person to the extent
that the declaration or payment of any dividends or other
distributions of such income by such Subsidiary is not permitted to be
made or paid (whether by contract or otherwise) on the last day of
such period;
(d) any gains or losses (on an after-tax basis) attributable to
the sale, lease, transfer or other disposition of any property or
assets of such Person or any of its Subsidiaries (other than inventory
sold in the ordinary course of business of such Person or its
applicable Subsidiary);
(e) any earnings or charges resulting from the write-up or
write-down of any property or assets of such Person or any of its
Subsidiaries other than in the ordinary course of business; and
(f) any gains attributable to the collection of proceeds of
insurance policies (other than any such proceeds collected from the
business interruption insurance policies of such Person or any of its
Subsidiaries during such period which are applied to the recoupment of
losses otherwise included in the determination of the Consolidated Net
Income of such Person and its Subsidiaries for such period).
"Constitutive Documents" means, with respect to any Person, the
certificate of incorporation, formation or registration (including, if
applicable, certificate of change of name), articles of incorporation or
association, memorandum of association, charter, bylaws, partnership
agreement, trust agreement, limited liability company operating or members
agreement, joint venture agreement or one or more similar agreements,
instruments or documents constituting the organization or formation of such
Person.
"Consulting Agreements" means (a) the Consulting Agreement dated as of
January 20, 1999 between the Borrower and David Pratt and (b) the
Consulting Agreement dated as of January 20, 1999 among the Borrower and
David Jones, in each case as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time in accordance with the terms
thereof, but solely to the extent permitted under the terms of the Loan
Documents.
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person to guarantee or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly
-12-
or indirectly, including, without limitation, (a) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of a primary obligor, (b) the
obligation to make take-or-pay or similar payments, if required, regardless
of nonperformance by any other party or parties to an agreement or (c) any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working capital,
equity capital, net worth or any other balance sheet condition or any
income statement condition of the primary obligor or otherwise to maintain
the solvency of the primary obligor, (iii) to purchase, lease or otherwise
acquire property, assets, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Contingent Obligation is
made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the agreement,
instrument or other document evidencing such Contingent Obligation) or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.
"Conversion", "Convert" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Copyrights" has the meaning specified in Section 1(h) of the Security
Agreement.
"Current Assets" means, with respect to any Person, all assets of such
Person that, in accordance with GAAP, would be classified as current assets
on the balance sheet of a Person conducting a business the same as or
similar to that of such Person, after deducting appropriate and adequate
reserves therefrom in accordance with GAAP.
"Current Liabilities" means, with respect to any Person, (a) all
Indebtedness of such Person that by its terms is payable on demand or
matures within one year after the date of determination (excluding any
Indebtedness renewable or extendible, at the option of such Person, to a
date more than one year from such date or arising under a revolving credit
or similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year from such date), (b) all amounts of
Funded Indebtedness of such Person required to be paid or prepaid within
one year after such date and (c) all other items (including, without
limitation, taxes accrued as estimated and trade payables otherwise
excluded from Indebtedness under clause (b) of the definition thereof set
forth below in this Section 1.01) that, in accordance with GAAP, would be
classified on the balance sheet of such Person as current liabilities of
such Person.
"Declined Prepayment Amount" has the meaning specified in Section
2.06(b)(ix).
"Declining Term B Lender" has the meaning specified in Section
2.06(b)(ix).
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"Default" means any Event of Default or any event or condition that
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any of the Lender Parties
at any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(e) as of such
time. If a portion of a Defaulted Advance shall be deemed made pursuant to
Section 2.14(a), the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance so deemed made in
part.
"Defaulted Amount" means, with respect to any of the Lender Parties at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any of the other Lender Parties under this
Agreement or any of the other Loan Documents at or prior to such time that
has not been so paid as of such time, including, without limitation, any
amount required to be paid by such Lender Party to (a) the Swing Line Bank
pursuant to Section 2.02(b)(ii) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to
Section 2.03(c)(i) to purchase a portion of a Letter of Credit Advance made
by the Issuing Bank, (c) the Administrative Agent pursuant to Section
2.02(e) to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender Party, (d)
any of the other Lender Parties pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to
reimburse the Administrative Agent or the Issuing Bank, as the case may be,
for such Lender Party's ratable share of any amount required to be paid by
the Lender Parties to the Administrative Agent or the Issuing Bank as
provided therein. If a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.14(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid under
this Agreement or any of the other applicable Loan Documents on the same
date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any of the Lender Parties
that, at such time, (a) owes a Defaulted Advance or a Defaulted Amount or
(b) shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section 3.02(b).
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Subsidiary" means, at any time, each of the direct or
indirect Subsidiaries of the Borrower that is incorporated or organized
under the laws of any state of the United States of America or the District
of Columbia.
"DW" has the meaning specified in Preliminary Statement (2) to this
Agreement.
"Effective Date" has the meaning specified in Section 3.02.
-14-
"Eligible Assignee" means (a) with respect to either of the Term
Facilities or the Revolving Credit Facility, (i) a Lender; (ii) an
affiliate or an Approved Fund of a Lender; or (iii) any other Person
approved by the Administrative Agent and, so long as no Default under
Section 6.01(a) or 6.01(f) or Event of Default has occurred and is
continuing at the time the related assignment is effected pursuant to
Section 8.07, the Borrower (in either case such approval not to be
unreasonably withheld or delayed and, in the case of the Borrower, such
approval to be deemed to have been given if no objection thereto is
received by the Administrative Agent and the assigning Lender within two
Business Days after the date on which notice of the proposed assignment is
received by the Borrower); and (b) with respect to the Letter of Credit
Facility, a Person that is an Eligible Assignee under clause (a) of this
definition and is a commercial bank organized under the laws of the United
States of America or any state thereof; provided, however, that neither any
of the Loan Parties nor any of the Affiliates of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Employees Note" has the meaning specified in Preliminary Statement
(3) to this Agreement.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of noncompliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement, abatement order or other order or directive (conditional or
otherwise) relating in any way to any Environmental Law, any Environmental
Permit or any Hazardous Materials or arising from alleged injury or threat
to health, safety, natural resources or the environment, including, without
limitation, (a) by any Governmental Authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
applicable Governmental Authority or other third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any Requirement of Law, any judicial or
agency interpretation, policy or guideline having the force or effect of
law or any other requirement of any Governmental Authority relating to (a)
the generation, use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, (b) the protection
of the environment, occupational health or safety or natural resources or
(c) pollution (including, without limitation , any release to land, surface
water, ground water or any other medium), including CERCLA, the Hazardous
Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act
(42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
ss. 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. ss. 136 et seq.), the Occupational Safety and Health Act (29
U.S.C. ss. 651 et seq.), the Oil Pollution Act (33 U.S.C. ss. 2701 et seq.)
and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. ss.
11001 et seq.), in each case as amended from time to time, and including
the regulations promulgated and the rulings issued from time to time
thereunder.
"Environmental Permit" means any permit, approval, license,
identification number or other authorization required under any
Environmental Law.
"Equity Interests" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
other acquisition from such Person of shares of capital stock of (or other
ownership or
-15-
profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
"Equity Investors" means, at any time, Holdings LLC and each other
Person that owns or otherwise holds any of the UIC Common Stock or the
Permitted Preferred Stock at such time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued from time to time thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any of the Loan Parties, or
under common control with any of the Loan Parties, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within the meaning
of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the
PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with
respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA could reasonably be
expected to occur with respect to such Plan within the following 30
days;
(b) the application for a minimum funding waiver with respect to
a Plan;
(c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any of the Loan
Parties or any of the ERISA Affiliates in the circumstances described
in Section 4062(e) of ERISA;
(e) the withdrawal by any of the Loan Parties or any of the ERISA
Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA;
(f) the conditions for imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA;
or
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(h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to each of the
Lenders, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Part B of Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender, as the case
may be (or, if no such office is specified, its Base Rate Lending Office),
or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent for such purpose.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum (rounded upwards, if necessary, to the
nearest 1/00 of 1%) obtained by dividing (a) the rate per annum at which
deposits in U.S. dollars appear on page 3750 (or any successor page
thereto) of the Dow Jones Markets Telerate Screen two Business Days before
the first day of such Interest Period and for a term comparable to such
Interest Period or, if such rate does not so appear on the Dow Jones
Markets Telerate Screen on any date of determination, on the Reuters Screen
LIBO Page two Business Days before the first day of such Interest Period
and for a term comparable to such Interest Period by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period; provided, however, that, if the Reuters Screen LIBO Page is being
used to determine the Eurodollar Rate at any date of determination and more
than one rate is specified thereon as the London interbank offered rate for
deposits in U.S. dollars for a term comparable to such Interest Period, the
applicable rate shall be the arithmetic mean (rounded upward, if necessary,
to the nearest whole multiple of 1/100 of 1% per annum) of all such rates.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period
for all of the Eurodollar Rate Advances comprising part of the same
Borrowing, the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York, New York with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a term
comparable to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period (without duplication):
-17-
(a) Consolidated pre-tax income (or pre-tax loss) of the Borrower
and its Subsidiaries for such period, less
(b) Consolidated income tax and franchise tax expense of the
Borrower and its Subsidiaries for such period, plus
(c) an amount equal to the aggregate amount of all noncash
charges deducted in determining the Consolidated Net Income of the
Borrower and its Subsidiaries for such period, plus
(d) an amount (whether positive or negative) equal to the change
in Consolidated Current Liabilities of the Borrower and its
Subsidiaries during such period, less
(e) an amount equal to the aggregate amount of all noncash
credits included in determining the Consolidated Net Income of the
Borrower and its Subsidiaries for such period, less
(f) an amount (whether positive or negative) equal to the change
in Consolidated Current Assets (excluding cash and Cash Equivalents)
of the Borrower and its Subsidiaries during such period, less
(g) an amount equal to the aggregate amount of all Capital
Expenditures made in cash by the Borrower and its Subsidiaries during
such period, less
(h) to the extent not otherwise excluded from the determination of Excess
Cash Flow for such period, an amount equal to the aggregate cash
consideration paid by the Borrower and its Subsidiaries during such
period to any Person other than the Borrower or any of its Affiliates
for the purchase or other acquisition of Equity Interests in, or
property and assets of, any other Person in accordance with Section
5.02(e)(ix) or 5.02(e)(x), less
(i) to the extent not otherwise excluded from the determination
of Excess Cash Flow for such period, an amount equal to the aggregate
amount of all indemnification payments (A) made to the Seller for the
incremental tax liability incurred thereby as a result of the election
by the Borrower under Section 338(H)(10) of the Internal Revenue Code
in connection with the consummation of the Recapitalization in an
amount not to exceed $12,000,000 and (B) made by the Borrower and its
Subsidiaries during such period to one or more purchasers of property
and assets thereof that have been sold, leased, transferred or
otherwise disposed of pursuant to Section 5.02(d)(viii) or 5.02(d)(ix)
for liabilities existing prior to the date of consummation of such
sale, lease, transfer or other disposition, provided that the
indemnification obligations giving rise to such payments were included
in the original documentation for such sale, lease, transfer or other
disposition, less
(j) an amount equal to the aggregate amount of all Scheduled
Principal Payments made by the Borrower and its Subsidiaries, and the
aggregate principal amount of all optional prepayments of Advances
made pursuant to Section 2.06(a) and all mandatory prepayments of
Advances made pursuant to Sections 2.06(b)(i), 2.06(b)(ii) and
2.06(b)(vii),
-18-
during such period (so long as each such optional and mandatory
prepayment resulted in a corresponding permanent commitment reduction
at the time of such prepayment), less
(k) an amount equal to the aggregate amount of all Cash
Distributions paid by the Borrower during such period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the regulations promulgated and the rulings issued
thereunder.
"Existing Advances" has the meaning specified in Preliminary Statement
(5) to this Agreement.
"Existing Credit Agreement" has the meaning specified in Preliminary
Statement (4) to this Agreement.
"Existing Lenders" has the meaning specified in Preliminary Statement
(4) to this Agreement.
"Existing Letters of Credit" means the irrevocable standby letters of
credit and trade letters of credit issued by the Issuing Bank under the
terms of the Existing Credit Agreement and outstanding on the Effective
Date, in each case as more fully described on Part A of Schedule I hereto.
"Existing Revolving Credit Advances" means the Existing Advances that
constitute "Revolving Credit Advances" under the Existing Credit Agreement
and are outstanding on the Effective Date immediately prior to giving
effect to the assignments and assumptions thereof described in Section
2.01(c).
"Existing Term A Advances" means the Existing Advances that constitute
"Term A Advances" under the Existing Credit Agreement and are outstanding
on the Effective Date immediately prior to giving effect to the assignments
and assumptions thereof described in Section 2.01(a)
"Existing Term B Advances" means the Existing Advances that constitute
"Term B Advances" under the Existing Credit Agreement and are outstanding
on the Effective Date immediately prior to giving effect to the assignments
and assumptions thereof described in Section 2.01(b)
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person other than in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof), indemnity
payments, purchase price adjustments received in connection with any
purchase agreement (or other similar agreement) and payments in respect of
judgments or settlements of claims, litigation or proceedings; provided,
however, that Extraordinary Receipts shall not include cash receipts
received from proceeds of insurance, condemnation awards (or payments in
lieu thereof), indemnity payments or payments in respect of judgments or
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settlements of claims, litigation or proceedings to the extent that such
proceeds, awards or payments (a) are received by any Person in respect of
any third party claim against or loss by such Person and promptly applied
to pay (or to reimburse such Person for its prior payment of) such claim or
loss and the costs and expenses of such Person with respect thereto and (b)
are applied (or are in respect of expenditures that were previously
incurred) to replace or repair Capital Assets in respect of which such
proceeds were received (or to reimburse such amounts previously paid), in
each case in accordance with the terms of the Loan Documents and so long as
such application is commenced within 270 days after the receipt of such
proceeds, awards or payments; provided that, in the case of clause (a) or
(b) of this definition, any third party being so reimbursed shall not be a
Loan Party or an Affiliate of a Loan Party.
"Facility" means the Term A Facility, the Term B Facility, the
Revolving Credit Facility, the Swing Line Facility or the Letter of Credit
Facility, as the context may require.
"Fair Market Value" means, with respect to any property or assets
(including, without limitation, any of the Equity Interests) of any Person
on any date of determination, the value of the consideration obtainable in
a sale of such property or asset in the open market on such date assuming
an arm's-length sale that has been arranged without duress or compulsion
between a willing seller and a willing and knowledgeable purchaser in a
commercially reasonable manner over a reasonable period of time under all
conditions necessary or desirable for a fair sale (taking into account the
nature and characteristics of such property or asset); provided that the
Fair Market Value of any of the property or assets of any of the Loan
Parties or any of their respective Subsidiaries shall be determined in good
faith by the board of directors (or the persons performing similar
functions) of such Loan Party or such Subsidiary, as the case may be, and
certified by a Responsible Officer of such Loan Party or such Subsidiary in
a certificate delivered to the Administrative Agent, on behalf of the
Lender Parties.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates (rounded upward, if necessary, to the nearest whole
multiple of 1/100 of 1% per annum) on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the immediately preceding 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 such day for such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means, with respect to the Borrower or any of its
Subsidiaries, the period commencing January 1 in any Fiscal Year and ending
on the next succeeding March 31, the period commencing April 1 in any
Fiscal Year and ending on the next succeeding June 30, the period
commencing July 1 in any Fiscal Year and ending on the next succeeding
September 30 or the period commencing October 1 in any Fiscal Year and
ending on the next succeeding December 31, as the context may require, or,
if any such Subsidiary was not in existence on the first day of any such
period, the period commencing on the date on which such Subsidiary is
incorporated, organized, formed or otherwise created and ending on the last
day of such period.
"Fiscal Year" means, with respect to the Borrower or any of its
Subsidiaries, the period commencing on January 1 in any calendar year and
ending on the next succeeding December 31 or,
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if any such Subsidiary was not in existence on January 1 in any calendar
year, the period commencing on the date on which such Subsidiary is
incorporated, organized, formed or otherwise created and ending on the next
succeeding December 31.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
(i) Consolidated EBITDA of the Borrower and its Subsidiaries (or, solely
for purposes of determining compliance with the applicable requirements of
Section 5.02(c), 5.02(d) or 5.02(e), Pro Forma Consolidated EBITDA) for
such period less (ii) the aggregate amount of all Capital Expenditures made
in cash by or on behalf of the Borrower and its Subsidiaries during such
period to (b) the sum of (i) Consolidated Cash Interest Expense of the
Borrower and its Subsidiaries for such period, (ii) the aggregate principal
amount (or the equivalent thereto) of all Scheduled Principal Payments of
the Borrower and its Subsidiaries for such period and (iii) the aggregate
amount of all Cash Distributions made by or on behalf of the Borrower
during such period (other than redemptions or repurchases of UIC Common
Stock, or warrants, rights or options to acquire UIC Common Stock, from
retired, terminated, deceased or departing executives and managers made
during such period to the extent otherwise permitted under Section
5.02(f)(vii)); provided that, solely for the purposes of determining the
Fixed Charge Coverage Ratio for the first three Measurement Periods ending
after the Closing Date, (A) the Consolidated Cash Interest Expense of the
Borrower and its Subsidiaries for such Measurement Period shall be equal to
(1) the Consolidated Cash Interest Expense for the completed Fiscal
Quarters since the Closing Date multiplied by (2) a fraction the numerator
of which is four and the denominator of which is equal to the number of
completed Fiscal Quarters since the Closing Date and (B) the aggregate
principal amount of all Scheduled Principal Payments of the Borrower and
its Subsidiaries for such Measurement Period shall be the aggregate
principal amount of all Advances scheduled to be repaid under Sections
2.04(a) and 2.04(b) during the period from the Closing Date to the first
anniversary thereof; and provided further that, solely for purposes of
determining the Fixed Charge Coverage Ratio for the first four Measurement
Periods ending after the Closing Date, the Consolidated Cash Interest
Expense of the Borrower and its Subsidiaries for such Measurement Period
shall be increased by $2,000,000.
"Foreign Corporation" means each Foreign Subsidiary that constitutes a
"controlled foreign corporation" under Section 957 of the Internal Revenue
Code.
"Foreign Subsidiary" means, at any time, each of the direct or
indirect Subsidiaries of the Borrower that is not a Domestic Subsidiary at
such time.
"Funded Indebtedness" means, with respect to any Person (without
duplication), Indebtedness in respect of the Advances in the case of the
Borrower, and all other Indebtedness of such Person that by its terms
matures more than one year after any date of determination or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, in each case determined on a Consolidated basis in
accordance with GAAP; provided, however, that the term "Funded
Indebtedness" shall not include any Contingent Obligations of such Person
(if and to the extent such Contingent Obligations would otherwise be
included in such term on any date of determination) that are incurred
solely to support Indebtedness of one or more Subsidiaries of such Person
so long as such Contingent Obligations are otherwise expressly permitted to
be incurred under the terms of the Loan Documents.
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"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent
basis, subject, however, to the terms of Section 1.03.
"Governmental Authority" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board or similar body, whether federal, state, territorial, local or
foreign.
"Governmental Authorization" means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right, undertaking
or other action of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
"Guarantee Supplement" has the meaning specified in Section 8 of the
Subsidiaries Guarantee.
"Guaranteed Obligations" has the meaning specified in Section 1(a) of
the Subsidiaries Guarantee.
"Hazardous Materials" means: (a) any chemical, material or substance
at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", "acutely hazardous waste", "radioactive waste",
"biohazardous waste", "pollutant", "toxic pollutant", "contaminant",
"restricted hazardous waste", "infectious waste", "toxic substances", or
any other term or expression intended to define, list or classify
substances by reason of properties harmful to health, safety or the indoor
or outdoor environment (including, without limitation, such harmful
properties as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words
of similar meaning and regulatory effect under any applicable Environmental
Laws); (b) any oil, petroleum, petroleum fraction or petroleum derived
substance; (c) any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; (d) any flammable substances or
explosives; (e) any radioactive materials; (f) any asbestos-containing
materials; (g) any urea formaldehyde foam insulation; (h) any electrical
equipment which contains any oil or dielectric fluid containing
polychlorinated biphenyls; (i) any pesticides; (j) any radon gas; and (k)
any other chemical, material or substance designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means, collectively, interest rate swap, cap or
collar agreements, interest rate future or option contracts, commodity
future or option contracts, currency swap agreements, currency future or
option contracts and other similar agreements.
"Hedge Bank" means any Person that is a Lender Party or an affiliate
of a Lender Party, in its capacity as a party to a Secured Hedge Agreement.
"Holdings LLC" has the meaning specified in Preliminary Statement (1)
to this Agreement.
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"Holdings LLC Agreement" has the meaning specified in Section
3.02(e)(iii).
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed money;
(b) all Obligations of such Person for the deferred purchase
price of property and assets or services (other than trade payables or
other accounts payable incurred in the ordinary course of such
Person's business and not past due, by their respective terms, for
more than 90 days);
(c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, or upon which interest
payments are customarily made;
(d) all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such Person (even though the rights and
remedies of the seller or the lender under such agreement in the event
of default are limited to repossession or sale of such property or
assets);
(e) all Obligations of such Person as lessee under Capitalized
Leases;
(f) all Obligations, contingent or otherwise, of such Person
under acceptance, letter of credit or similar facilities;
(g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity
Interests in such Person or any other Person, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;
(h) all Obligations, contingent or otherwise, of such Person in
respect of Hedge Agreements, in each case valued at the Agreement
Value thereof, take-or-pay agreements or other similar agreements;
(i) all Obligations of such Person under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing, if the transaction giving rise to such
Obligation is considered indebtedness for borrowed money for tax
purposes but is classified as an operating lease in accordance with
GAAP;
(j) all Contingent Obligations of such Person; and
(k) all Indebtedness referred to in clauses (a) through (j) above
and other payment Obligations of another Person 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 or
assets (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness or other payment
Obligations, valued, in the case of any such Indebtedness as to which
recourse for the payment thereof is expressly limited to the
-23-
property or assets on which such Lien is granted, at the lesser of (i)
the stated or determinable amount of the Indebtedness that is so
secured or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) and (ii) the Fair Market Value of such
property or assets.
The Indebtedness of any Person shall include (i) all Obligations of the
types described in clauses (a) through (k) above of any partnership in
which such Person is a general partner and (ii) all Obligations of the
types described in clauses (a) through (k) above of such Person to the
extent such Person remains legally liable in respect thereof,
notwithstanding that any such Obligation is deemed to be extinguished under
GAAP at any date of determination.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Extension of Credit" means, collectively, the initial
Borrowings made under one or more of the Facilities and/or the initial
issuances of one or more Letters of Credit made on the Closing Date.
"Initial Issuing Bank" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Initial Pledged Indebtedness" has the meaning specified in
Preliminary Statement (2) of the Security Agreement.
"Initial Pledged Interests" has the meaning specified in Preliminary
Statement (2) of the Security Agreement.
"Interest Coverage Ratio" means, for any period, the ratio of (a)
Consolidated EBITDA of the Borrower and its Subsidiaries (or, solely for
purposes of determining compliance with the applicable requirements of
Section 5.02(c), 5.02(d) or 5.02(e), Pro Forma Consolidated EBITDA) for
such period to (b) Consolidated Cash Interest Expense of the Borrower and
its Subsidiaries for such period; provided that, solely for the purposes of
determining the Interest Coverage Ratio for the first three Measurement
Periods ending after the Closing Date, the Consolidated Cash Interest
Expense of the Borrower and its Subsidiaries for such Measurement Period
shall be equal to (A) the Consolidated Cash Interest Expense for the
completed Fiscal Quarters since the Closing Date multiplied by (B) a
fraction the numerator of which is four and the denominator of which is
equal to the number of completed Fiscal Quarters since the Closing Date;
and provided further that, solely for purposes of determining the Interest
Coverage Ratio for the first four Measurement Periods ending after the
Closing Date, the Consolidated Cash Interest Expense of the Borrower and
its Subsidiaries for such Measurement Period shall be increased by
$2,000,000.
"Interest Period" means, for each of the Eurodollar Rate Advances
comprising part of the same Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, as the case may be, and ending
on the last day of the period selected by the Borrower pursuant to the
provisions set forth below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant
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to the provisions set forth below. The duration of each such Interest
Period shall be one, two, three or six months and, subject to clause (c) of
this definition, nine or twelve months as the Borrower may, upon notice
received by the Administrative Agent not later than 1:00 P.M. (Charlotte,
North Carolina time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after (i)
any principal repayment installment date for such Facility unless,
after giving effect to such selection, the aggregate principal amount
of Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date or (ii) the scheduled Termination Date for such
Facility;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) the Borrower shall not be entitled to select an Interest
Period having a duration of nine or twelve months unless, by 3:00 P.M.
(New York City time) on the third Business Day prior to the first day
of such Interest Period, each of the Appropriate Lenders notifies the
Administrative Agent that such Lender will be providing funding for
such Borrowing with such Interest Period (the failure of any of the
Appropriate Lenders to so respond by such time being deemed for all
purposes of this Agreement as an objection by such Lender to the
requested duration of such Interest Period); provided that if any of
the Appropriate Lenders objects (or is deemed to have objected) to the
requested duration of such Interest Period, the duration of the
Interest Period for such Borrowing shall be one, two, three or six
months, as specified by the Borrower in the applicable Notice of
Borrowing or Notice of Conversion as the desired alternative to the
requested Interest Period of nine or twelve months therefor;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that if such extension would cause
the last day of such Interest Period to occur in the next succeeding
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Investment" means, with respect to any Person, (a) any direct or
indirect purchase or other acquisition (whether for cash, securities,
property, services or otherwise) by such Person of, or of
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a beneficial interest in, any Equity Interests or Indebtedness of any other
Person, (b) any direct or indirect purchase or other acquisition (whether
for cash, securities, property, services or otherwise) by such Person of
all or substantially all of the property and assets of any other Person or
of any division, branch or other unit of operation of any other Person, (c)
any direct or indirect redemption, retirement, purchase or other
acquisition for value by such Person from any other Person of any Equity
Interests in such Person, (d) the making of a deposit by such Person with,
or any direct or indirect loan, advance, other extension of credit or
capital contribution by such Person to, or any other investment by such
Person in, any other Person (including, without limitation, any
indebtedness or accounts receivable from such other Person that are not
current assets or did not arise from sales to such other Person in the
ordinary course of business and any arrangement pursuant to which the
investor incurs Indebtedness of the types referred to in clause (j) or (k)
of the definition of "Indebtedness" set forth above in this Section 1.01 in
respect of such other Person) and (e) any agreement to make any Investment
(including any "short sale" or any sale of any securities at a time when
such securities are not owned by the Person entering into such sale). The
amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment.
"IP Security Agreements--Short Form" means, collectively, the
Copyright Security Agreement--Short Form, the Trademark Security
Agreement--Short Form and the Patent Security Agreement--Short Form, in
each case as referred to in Section 15 of the Security Agreement.
"ISDA Master Agreement" means the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc., as in effect from time to time.
"Issuing Bank" means the Initial Issuing Bank and each other Person to
which the Letter of Credit Commitment has been assigned pursuant to Section
8.07, in each case for so long as the Initial Issuing Bank or such other
Person, as the case may be, shall be a party to this Agreement in such
capacity.
"L/C Cash Collateral Account" has the meaning specified in Preliminary
Statement (6) to the Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.03(c)(ii).
"Lead Arranger and Book Manager" has the meaning specified in the
recital of parties to this Agreement.
"Lender Party" means any Lender, the Swing Line Bank or the Issuing
Bank, as the context may require.
"Lenders" means, collectively, the Initial Lenders and each Person
that becomes a Lender pursuant to Section 8.07, in each case for so long as
such Initial Lender or such other Person, as the case may be, shall be a
party to this Agreement in such capacity.
"Letter of Credit" has the meaning specified in Section 2.01(e).
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"Letter of Credit Advance" means an advance made by the Issuing Bank
or any of the Revolving Credit Lenders pursuant to Section 2.03(c)(i).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank
at any time, the amount set forth opposite the Issuing Bank's name on Part
B of Schedule I hereto under the caption "Letter of Credit Commitment" or,
if the Issuing Bank has entered into one or more Assignment and
Acceptances, the amount set forth for the Issuing Bank in the Register
maintained by the Administrative Agent pursuant to Section 8.07(f) as the
Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the amount of the Letter of Credit Commitment at such time
and (b) $5,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Leverage Ratio" means, at any date of determination, the ratio of (a)
(i) all Funded Indebtedness of the Borrower and its Subsidiaries (other
than the aggregate principal amount of all Revolving Credit Advances, Swing
Line Advances and Letter of Credit Advances outstanding on such date) plus
(ii) the average daily aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances outstanding
during the most recently completed Measurement Period prior to such date
plus (iii) to the extent not otherwise included in subclause (a)(i) or
(a)(ii) of this definition, all Indebtedness of the Borrower and its
Subsidiaries outstanding on such date that would (or would be required to)
appear on the Consolidated balance sheet of the Borrower and its
Subsidiaries (other than any such outstanding Indebtedness evidenced by the
Permitted Preferred Stock) to (b) Pro Forma Consolidated EBITDA of the
Borrower and its Subsidiaries for the most recently completed Measurement
Period prior to such date.
"Lien" means, with respect to any Person, (a) any mortgage, lien
(statutory or other), pledge, hypothecation, security interest, charge or
other preference or encumbrance of any kind (including, without limitation,
any agreement to give any of the foregoing), (b) any sale of accounts
receivable or chattel paper, or any assignment, deposit arrangement or
lease intended as, or having the effect of, security, (c) any easement,
right of way or other encumbrance on title to real property or (d) any
other interest or title of any vendor, lessor, lender or other secured
party to or of such Person under any conditional sale or other title
retention agreement or any Capitalized Lease or otherwise upon or with
respect to any property or asset of such Person (including, in the case of
Equity Interests, voting trust agreements and other similar arrangements).
"Loan Documents" means, collectively, (a) for all purposes of this
Agreement and the Notes and any amendment, supplement or other modification
hereof or thereof and for all other purposes other than for purposes of the
Subsidiaries Guarantee and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Subsidiaries Guarantee, (iv) the Collateral
Documents, (v) each Letter of Credit Agreement, (vi) the Holdings LLC
Agreement and (vii) each of the other agreements evidencing any of the
Obligations of any of the Loan Parties secured by the Collateral Documents
(other than the Secured Hedge Agreements) and (b) for all purposes of the
Subsidiaries Guarantee and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Subsidiaries Guarantee, (iv) the Collateral
Documents, (v) each Letter of Credit Agreement, (vi) the Holdings LLC
Agreement,
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(vii) the Secured Hedge Agreements and (viii) each of the other agreements
evidencing any of the Obligations of any of the Loan Parties secured by the
Collateral Documents, in each case as amended, supplemented or otherwise
modified hereafter from time to time in accordance with the terms thereof
and Section 8.01; provided, however, that, solely for purposes of Section
3.01, the term "Loan Documents" shall have the meaning specified therefor
in the Existing Credit Agreement.
"Loan Parties" means, collectively, the Borrower and each of the
Restricted Subsidiaries.
"Management Agreements" means collectively, the Management Agreement
dated as of January 20, 1999 between the Borrower and Richard A. Bender,
the Management Agreement dated as of January 20, 1999 between the Borrower
and Stephan R. Brian, the Management Agreement dated as of January 20, 1999
between the Borrower and William P. Johnson and the Management Agreement
dated as of January 20, 1999 between the Borrower and Daniel J. Johnston,
in each case as such agreement may be amended, supplemented or otherwise
modified hereafter from time to time in accordance with the terms thereof,
but solely to the extent permitted under the terms of the Loan Documents.
"Managers Note" has the meaning specified in Preliminary Statement (3)
to this Agreement.
"Mandatory Prepayment Amount" has the meaning specified in Section
2.06(b)(ix).
"Mandatory Prepayment Date" has the meaning specified in Section
2.06(b)(ix).
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, liabilities
(actual or contingent), properties or prospects of the Borrower and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, liabilities
(actual or contingent), properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies of the
Administrative Agent or any of the Lender Parties under any of the Loan
Documents or the Related Documents or (c) the ability of any of the Loan
Parties to perform its Obligations under any of the Loan Documents or the
Related Documents to which it is or is to be a party (including, for
purposes of clauses (a) and (b) of this definition, the imposition of
materially burdensome conditions thereon).
"Measurement Period" means, at any date of determination, the most
recently completed four consecutive Fiscal Quarters on or immediately prior
to such date.
"Metals Business" has the meaning specified in Preliminary Statement
(2) to this Agreement.
"MSSF" has the meaning specified in the recital of parties to this
Agreement.
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) to which any of the Loan Parties or any of the ERISA
Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
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"Multiple Employer Plan" means a single employer plan (as defined in
Section 4001(a)(15) of ERISA) that (a) is maintained for employees of any
of the Loan Parties or any of the ERISA Affiliates and at least one Person
other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any of the Loan Parties or any of the
ERISA Affiliates could reasonably be expected to have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NationsBank" has the meaning specified in the recital of parties to
this Agreement.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any property or assets, or the incurrence or
issuance of any Indebtedness, or the sale or issuance of any Equity
Interests in any Person, or any Extraordinary Receipt received by or paid
to or for the account of any Person, as the case may be, the aggregate
amount of cash received from time to time (whether as initial consideration
or through payment or disposition of deferred consideration) by or on
behalf of such Person for its own account in connection with any such
transaction, after deducting therefrom only:
(a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees and other similar fees,
costs and commissions;
(b) the amount of taxes payable in connection with or as a result
of such transaction;
(c) in the case of any sale, lease, transfer or other disposition
of any property or asset, the outstanding principal amount of, the
premium or penalty, if any, on, and any accrued and unpaid interest
on, any Indebtedness (other than Indebtedness under or in respect of
the Loan Documents) that is secured by a Lien on the property and
assets subject to such sale, lease, transfer or other disposition and
is required to be repaid under the terms of such Indebtedness as a
result of such sale, lease, transfer or other disposition; and
(d) in the case of the sale, lease, transfer or other disposition
of any property and assets of the Borrower or any of its Subsidiaries
pursuant to Section 5.02(d)(viii) or 5.02(d)(ix), the aggregate amount
of all reasonable and customary post-closing purchase price
adjustments to the cash consideration received by such Person or any
of its Subsidiaries for such sale, lease, transfer or other
disposition to the extent (and only to the extent) that (i) such
purchase price adjustments are solely for working capital
reconciliations determined on the basis of actual (as opposed to
estimated) financial statement information delivered pursuant to the
terms of the documentation for such sale, lease, transfer or other
disposition, (ii) such Person or its applicable Subsidiary reasonably
believes that it will be obligated to remit the amount of such
purchase price adjustments to the purchaser of the related property
and assets within 180 days of the date of consummation of such sale,
lease, transfer or other disposition and (iii) the amount of any such
purchase price adjustment so deducted from any determination of Net
Cash Proceeds shall not exceed 10% of the total cash consideration
received (or to be received) by such Person and its Subsidiaries for
such sale, lease, transfer or other disposition;
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in each case to the extent, but only to the extent, that the amounts
so deducted are properly attributable to such transaction or to the
property or asset that is the subject thereof and (i) in the case of
clauses (a) and (c) of this definition, are actually paid at the time
of receipt of such cash to a Person that is not an Affiliate of such
Person or any of the Loan Parties or of any Affiliate of any of the
Loan Parties, (ii) in the case of clause (b) of this definition, are
actually paid at the time of receipt of such cash to a Person that is
not an Affiliate of such Person or any of the Loan Parties or of any
Affiliate of any of the Loan Parties or, so long as such Person is not
otherwise indemnified therefor, are reserved for in accordance with
GAAP, as in effect at the time of receipt of such cash (based upon
such Person's reasonable estimate of such taxes), and paid to the
applicable taxation authority or other Governmental Authority within
360 days after the date of consummation of the related transaction and
(iii) in the case of clause (d) of this definition, are actually paid
to the purchaser of the related property and assets within 180 days of
the date of consummation of such sale, lease, transfer or other
disposition to a Person that is not an Affiliate of such Person or any
of the Loan Parties or of any Affiliate of any of the Loan Parties;
provided, however, that if, at the time any such taxes or post-closing
purchase price adjustments are actually paid or otherwise satisfied,
the reserve therefor or the amount otherwise retained by such Person
or its applicable Subsidiary for the payment thereof exceeds the
amount paid or otherwise satisfied, then the amount of such excess
reserve or retained amount, as the case may be, shall constitute "Net
Cash Proceeds" on and as of the date of such payment or other
satisfaction for all purposes of this Agreement and, to the extent
required under Sections 2.05(b) and 2.06(b), the Borrower shall reduce
the Commitments on such date in accordance with the terms of Section
2.05(b), and shall prepay the Advances and cash collateralize the
Letters of Credit outstanding on such date in accordance with the
terms of Section 2.06(b), in an amount equal to the amount of such
excess reserve or retained amount.
"New Subsidiary" has the meaning specified in Section 5.02(k).
"NMS" has the meaning specified in the recital of parties to this
Agreement.
"Note" means a Term A Note, a Term B Note or a Revolving Credit Note,
as the context may require.
"Note Purchase Agreement" means the Note Purchase Agreement dated as
of January 20, 1999 among the Borrower and the purchasers of the Senior
Subordinated Notes party thereto, as such agreement may be amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms thereof, but solely to the extent permitted under
the terms of the Loan Documents.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion" has the meaning specified in Section 2.09(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(e).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
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"Notice of Termination" has the meaning specified in Section 2.01(e).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any action
or proceeding of the type referred to in Section 6.01(f). Without limiting
the generality of the immediately preceding sentence, the Obligations of
the Loan Parties under or in respect of the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorneys' fees and disbursements, indemnity
payments and other amounts payable by any of the Loan Parties under or in
respect of any of the Loan Documents and (b) the obligation of any of the
Loan Parties to reimburse any amount in respect of any of the items
described above in clause (a) of this definition that the Administrative
Agent or any of the Lender Parties, in its sole discretion, may elect to
pay or advance on behalf of such Loan Party.
"Open Year" means, with respect to any Person, any year for which
United States federal income tax returns have been filed by or on behalf of
such Person and for which the expiration of the applicable statute of
limitations for assessment, reassessment or collection has not occurred
(whether by reason of extension or otherwise).
"Operating Lease" means, with respect to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee
at any time) of any property (whether real, personal or mixed) that is not
a Capitalized Lease or a lease under which such Person is the lessor.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Patents" has the meaning specified in Section 1(j) of the Security
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Performance Level" means Performance Level I, Performance Level II,
Performance Level III or Performance Level IV, as the context may require.
For the purposes of determining the Performance Level at any date of
determination:
(a) not more than two decreases in the Performance Level (each
thereby resulting in a decrease in the Applicable Margin) shall occur
in any three-month period; and
(b) no change in the Performance Level shall be effective until
three Business Days after the date on which the Administrative Agent
and the Lender Parties receive the Required Financial Information
reflecting such change; provided, however, that if the Borrower has
not delivered to the Administrative Agent and the Lender Parties all
of the information required under this clause (b) within five Business
Days after the date on which such information is otherwise required
under Section 5.03(c) or 5.03(d), as applicable, and
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Section 5.03(e), the Performance Level shall be deemed to be
Performance Level IV for so long as such information has not been
submitted.
"Performance Level I" means, at any date of determination, that the
Borrower and its Subsidiaries shall have maintained a Leverage Ratio of
less than 4.00:1 for the most recently completed Measurement Period prior
to such date.
"Performance Level II" means, at any date of determination, that (a)
the Performance Level does not meet the requirements of Performance Level I
and (b) the Borrower and its Subsidiaries shall have maintained a Leverage
Ratio of less than 4.50:1 for the most recently completed Measurement
Period prior to such date.
"Performance Level III" means, at any date of determination, that (a)
the Performance Level does not meet the requirements of Performance Level I
or Performance Level II and (b) the Borrower and its Subsidiaries shall
have maintained a Leverage Ratio of less than 5.50:1 for the most recently
completed Measurement Period prior to such date.
"Performance Level IV" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III.
"Permitted Affiliate Investment" means (a) any capital contributions
to the Borrower made by one or more of the Equity Investors or (b) the Net
Cash Proceeds received by the Borrower from the issuance and sale of UIC
Common Stock or Permitted Preferred Stock to one or more of the Equity
Investors; provided that on the date on which any such Permitted Affiliate
Investment is made, the Borrower shall deliver to the Administrative Agent,
on behalf of the Lender Parties, a certificate of a Responsible Officer of
the Borrower, certifying that such capital contributions or the Net Cash
Proceeds received by the Borrower from such issuance and sale are intended
to constitute, and are to be used for, one or more Investments to be made
in accordance with the terms of Section 5.02(e)(ix) or 5.02(e)(x), or one
or more redemptions or repurchases of UIC Common Stock, or warrants, rights
or options to acquire UIC Common Stock, from retired, terminated, deceased
or departing executives and managers to be made in accordance with the
terms of Section 5.02(f)(vii).
"Permitted Liens" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA or any such Lien relating to or imposed in
connection with any Environmental Action), in each case as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced:
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not otherwise required to be paid under Section
5.01(b);
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's, storage and repairmen's Liens and other similar
Liens arising in the ordinary course of business and securing
obligations (other than Indebtedness for borrowed money) (i) that are
not overdue for a period of more than 60 days or (ii) the amount,
applicability or validity of which is being contested in good faith
and by appropriate proceedings
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diligently conducted and with respect to which the Borrower or its
applicable Subsidiary, as the case may be, has established reserves in
accordance with GAAP;
(c) pledges or deposits to secure obligations incurred in the
ordinary course of business under workers' compensation laws,
unemployment insurance or other similar social security legislation
(other than in respect of employee benefit plans subject to ERISA) or
to secure public or statutory obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, government or utility contracts (other than for the
repayment of borrowed money), surety and appeal bonds and other
obligations of a similar nature incurred in the ordinary course of
business;
(e) any interest or title of a lessor or sublessor or a licensor
and any restriction or encumbrance to which the interest or title of
such lessor, sublessor or licensor may be subject that is incurred in
the ordinary course of business and, either individually or when
aggregated with all other Permitted Liens in effect on any date of
determination, could not reasonably be expected to have a Material
Adverse Effect;
(f) Liens arising out of judgments or awards that do not
constitute an Event of Default under Section 6.01(g) or 6.01(h) and in
respect of which the Borrower or any of its Subsidiaries subject
thereto shall be prosecuting an appeal or proceeding for review in
good faith and, pending such appeal or proceeding, shall have secured
within ten days after the entry thereof a subsisting stay of execution
and shall be maintaining reserves, in accordance with GAAP, with
respect to any such judgment or award;
(g) Liens in favor of customs and revenue authorities arising as
a matter of law or pursuant to a bond to secure payment of customs
duties in connection with the importation of goods;
(h) customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions in which such cash is
maintained in the ordinary course of business; and
(i) easements, rights-of-way, zoning restrictions and other
encumbrances and survey exceptions, minor defects or irregularities in
title and other similar restrictions on title to, or the use of, real
property that do not, either individually or in the aggregate, (i)
materially detract from the value of such real property or (ii)
materially and adversely affect the use of such real property for its
intended purposes or the conduct of the business of the Borrower and
its Subsidiaries in the ordinary course and, in any case, that were
not incurred in connection with and do not secure Indebtedness or
other extensions of credit.
"Permitted Preferred Stock" means Preferred Interests in the Borrower
issued from time to time to one or more of the Equity Investors that have
(a) no dividends or other distributions required to be paid in cash, and no
scheduled or mandatory redemption or repurchase dates, in whole or in part,
prior to March 31, 2009, (b) no voting rights and (c) no other conditions,
covenants, events of default or redemption or liquidation events that could
reasonably be expected to adversely
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affect the rights or interests of the Administrative Agent or any of the
other Secured Parties in any manner.
"Permitted Preferred Stock Documents" means, collectively, the
Certificate of Designation for the Permitted Preferred Stock, any
subscription agreements therefor and all of the other agreements,
instruments and other documents pursuant to which the Permitted Preferred
Stock will be issued or otherwise setting forth the terms of the Permitted
Preferred Stock, in each case as such agreement, instrument or other
document may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but to the extent permitted
under the terms of the Loan Documents.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, unlimited liability company,
joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan, as
the context may require.
"Pledged Indebtedness" has the meaning specified in Section 1(c)(iv)
of the Security Agreement.
"Pre-Closing Reorganization" has the meaning specified in Preliminary
Statement (2) to this Agreement.
"Pre-Commitment Information" means all of the information furnished to
the Agents and the Existing Lenders by or on behalf of THL, Holdings LLC or
the Borrower prior to December 23, 1998 and relating to the Loan Documents
or the Related Documents, any aspect of the Transaction or any of the
transactions contemplated hereby or thereby or to the structuring of the
Transaction or the syndication of the Facilities.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"primary obligations" has the meaning specified in the definition of
"Contingent Obligation" set forth above in this Section 1.01.
"primary obligor" has the meaning specified in the definition of
"Contingent Obligation" set forth above in this Section 1.01.
"Pro Forma Consolidated EBITDA" means, at any date of determination,
an amount equal to the Consolidated EBITDA of the Borrower and its
Subsidiaries for the most recently completed Measurement Period prior to
such date for which the Borrower has delivered the Required Financial
Information; provided that, with respect to any purchase or other
acquisition of any property or assets of any Person by the Borrower or any
of its Subsidiaries pursuant to Section 5.02(e)(ix) or
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5.02(e)(x) or any sale, lease, transfer or other disposition of property or
assets by the Borrower or any of its Subsidiaries pursuant to Section
5.02(d)(viii) or 5.02(d)(ix) or otherwise, if the Borrower or any of its
Subsidiaries shall have purchased or otherwise acquired or shall have sold,
leased, transferred or otherwise disposed of any property or assets at any
time on or after the first day of such Measurement Period and prior to such
date, such Consolidated EBITDA shall be increased (in the case of each such
purchase or other acquisition) or reduced (in the case of each such sale,
lease, transfer or other disposition) by the Consolidated EBITDA of the
Borrower and its Subsidiaries that would have been contributed thereto by
such property or assets during such Measurement Period, as determined in
good faith by the board of directors of the Borrower on a pro forma basis
as though the Borrower or the Subsidiary of the Borrower that is effecting
such transaction had purchased or otherwise acquired or had sold,
transferred or otherwise disposed of such property or assets on the first
day of such Measurement Period and after giving effect to all of the pro
forma cost savings of the Borrower and its Subsidiaries that are to be
recognized as a result of such transaction during such Measurement Period.
"Pro Rata Share" of any amount means, with respect to any of the
Lenders at any time, the product of (a) a fraction the numerator of which
is the amount of such Lender's Commitment(s) under the applicable Facility
or Facilities at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01 at or prior to such time, such
Lender's Commitment(s) under the applicable Facility or Facilities as in
effect immediately prior to such termination) and the denominator of which
is the aggregate amount of such Facility or Facilities at such time (or, if
the Commitments shall have been terminated pursuant to Section 2.05 or 6.01
at or prior to such time, the applicable Facility or Facilities as in
effect immediately prior to such termination) multiplied by (b) such
amount.
"Professional Services Agreement" means the Professional Services
Agreement dated as of January 20, 1999 by and among THL Equity Advisors IV,
L.L.C., Thomas H. Lee Capital, L.L.C. and the Borrower, as such agreement
may be amended, supplemented or otherwise modified hereafter from time to
time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"Recapitalization" has the meaning specified in Preliminary Statement
(3) to this Agreement.
"Recapitalization Agreement" has the meaning specified in Preliminary
Statement (3) to this Agreement.
"Redeemable" means, with respect to any Equity Interest, any
Indebtedness or any other right or Obligation, any such Equity Interest,
Indebtedness, right or Obligation that (a) the issuer has undertaken to
redeem at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of the
holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(vi).
"Register" has the meaning specified in Section 8.07(f).
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"Related Documents" means the Recapitalization Agreement, the
Reorganization Agreement, the Stockholders Agreement, the Consulting
Agreements, the Management Agreements, the Professional Services Agreement
and THL Subordination Agreement.
"Related Indemnified Party" means, with respect to any of the
Indemnified Parties, each of the officers, directors, employees, agents and
advisors of such Indemnified Party.
"Reorganization Agreement" has the meaning specified in Preliminary
Statement (2) to this Agreement.
"Required Financial Information" means, at any date of determination,
the Consolidated financial statements of the Borrower and its Subsidiaries
most recently delivered to the Administrative Agent and the Lender Parties
on or prior to such date pursuant to, and satisfying all of the
requirements of, Section 5.03(c) or 5.03(d) and accompanied by the
certificates and other information required to be delivered therewith
pursuant to Section 5.03(e).
"Required Lenders" means, at any time, Lenders owed or holding more
than 50% of the sum of (a) the aggregate principal amount of all Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters
of Credit outstanding at such time and (c) the aggregate Unused Revolving
Credit Commitments at such time; provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of all Advances owing to such Lender (in its capacity as a Lender)
and outstanding at such time, (ii) if such Defaulting Lender is a Revolving
Credit Lender, such Lender's Pro Rata Share of the aggregate Available
Amount of all Letters of Credit outstanding at such time and (iii) the
Unused Revolving Credit Commitment of such Lender at such time. For
purposes of this definition, the aggregate principal amount of all Swing
Line Advances owing to the Swing Line Bank and outstanding at such time and
all Letter of Credit Advances owing to the Issuing Bank and outstanding at
such time and the Available Amount of all Letters of Credit outstanding at
such time shall be deemed to be owed to the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitments at such time.
"Requirements of Law" means, with respect to any Person, all laws,
constitutions, statutes, treaties, ordinances, rules and regulations, all
orders, writs, decrees, injunctions, judgments, determinations and awards
of an arbitrator, a court or any other Governmental Authority, and all
Governmental Authorizations, binding upon or applicable to such Person or
any of its Subsidiaries or to any of their property, assets or businesses.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer, the principal accounting officer or
the treasurer (or the equivalent of any of the foregoing) of the Borrower
or any of its Subsidiaries or any other officer, partner or member (or
person performing similar functions) of the Borrower or any of its
Subsidiaries responsible for overseeing the administration of, or reviewing
compliance with, all or any portion of this Agreement and the other Loan
Documents.
"Restricted Subsidiary" means (a) each of the wholly owned Domestic
Subsidiaries and each of the other Subsidiaries of the Borrower that is
organized, purchased or otherwise acquired after the Effective Date,
whether pursuant to Section 5.02(e)(ix) or otherwise (other than any non-
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wholly owned Domestic Subsidiary or any Foreign Subsidiary that is
organized, purchased or otherwise acquired pursuant to Section 5.02(e)(x)),
or (b) each of the other Subsidiaries of the Borrower that, at the option
of the Borrower (i) executes and delivers the Subsidiaries Guarantee or a
Guarantee Supplement and a Security Agreement Supplement, (ii) in which
100% of the issued and outstanding Equity Interests are pledged to the
Administrative Agent, on behalf of the Secured Parties, pursuant to the
applicable Collateral Documents and (iii) delivers such other agreements,
opinions, certificates and other documents as are required or requested
under Section 5.01(k) or 5.02(k).
"Revolving Credit Advance" means, with respect to each of the
Revolving Credit Lenders, any advance made (or deemed to have been made on
the Effective Date) by such Revolving Credit Lender to the Borrower
pursuant to Section 2.01(c).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made (or deemed to
have been made) by the Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any of the
Revolving Credit Lenders at any time, the amount set forth opposite such
Revolving Credit Lender's name on Part B of Schedule I hereto under the
caption "Revolving Credit Commitment" or, if such Revolving Credit Lender
has entered into one or more Assignment and Acceptances, the amount set
forth for such Revolving Credit Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(f) as such Revolving Credit
Lender's "Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate
Revolving Credit Commitments of all of the Revolving Credit Lenders at such
time.
"Revolving Credit Lender" means, at any time, any of the Lenders that
has a Revolving Credit Commitment at such time.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any of the Revolving Credit Lenders, in
substantially the form of Exhibit A-3 hereto, evidencing the aggregate
indebtedness of the Borrower to such Revolving Credit Lender resulting from
the Revolving Credit Advances made (or deemed to have been made) by such
Revolving Credit Lender.
"Scheduled Principal Payments" means, with respect to any Person for
any period, the sum of all regularly scheduled principal payments or
repurchases, redemptions or similar acquisitions for value of outstanding
Indebtedness made or required to be made during such period, including,
without limitation, all repayments of Advances outstanding hereunder
pursuant to Section 2.04(a), 2.04(b) or 2.04(c).
"Secured Hedge Agreement" means any interest rate Hedge Agreement
permitted under Article V that is entered into by and between the Borrower
and any of the Hedge Banks.
"Secured Obligations" has the meaning specified in Section 2 of the
Security Agreement.
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"Secured Parties" means, collectively, the Agents, the Lender Parties,
the Hedge Banks and the other Persons, if any, the Obligations owing to
which are or are purported to be secured by the Collateral under the terms
of the Collateral Documents.
"Securities Act" means the Securities Act of 1933, as amended, and the
regulations promulgated and the rulings issued thereunder.
"Security Agreement" has the meaning specified in Section 3.02(e)(ii).
"Security Agreement Supplement" has the meaning specified in Section
22(b) of the Security Agreement.
"Sellers" has the meaning specified in Preliminary Statement (3) to
this Agreement.
"Senior Financial Officer" means the chief financial officer, the
principal accounting officer or the treasurer of the Borrower.
"Senior Subordinated Notes" means, collectively, (a) the senior
unsecured subordinated increasing rate notes of the Borrower due January
20, 2009 in an aggregate principal amount of $150,000,000 that were issued
and sold by the Borrower on the Closing Date pursuant to the terms of the
Note Purchase Agreement and (b) the senior unsecured subordinated notes of
the Borrower due no earlier than January 20, 2009 to be issued and sold in
an aggregate principal amount of not more than $150,000,000, the proceeds
of which shall be applied to redeem or refinance the senior unsecured
subordinated increasing rate notes of the Borrower referred to in clause
(a) above; provided that the senior unsecured subordinated notes of the
Borrower described in this clause (b) (i) shall not accrue interest at a
rate per annum of more than 12.50%, (ii) shall not be subject to any
covenants or agreements that are not set forth in the Preliminary Offering
Memorandum therefor (and such covenants and agreements shall be on terms no
less favorable to any of the Loan Parties or any of their Subsidiaries or
to the Administrative Agent or the Lender Parties than the comparable
covenants and agreements set forth in such Preliminary Offering
Memorandum), except for defeasance provisions, provisions regarding the
rights and obligations of the trustee for such senior unsecured
subordinated notes of the Borrower and other customary indenture provisions
that are reasonably satisfactory to the Lender Parties, and (iii) shall not
be subject to any of the covenants or agreements set forth in the Note
Purchase Agreement which, by the terms of the Note Purchase Agreement, are
to be discharged upon the "Conversion Date" (as defined in the Note
Purchase Agreement).
"Senior Subordinated Notes Documents" means the Note Purchase
Agreement, the Senior Subordinated Notes, all indentures, securities
purchase agreements, warrant agreements and registration rights agreements
entered into in connection with the redemption or refinancing of the
initial Senior Subordinated Notes and all of the other agreements,
instruments and other documents pursuant to which the Senior Subordinated
Notes have been issued or otherwise setting forth the terms of the Senior
Subordinated Notes, in each case as such agreement, instrument or other
document may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
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"Single Employer Plan" means a single employer plan (as defined in
Section 4001(a)(15) of ERISA) that (a) is maintained for employees of any
of the Loan Parties or any of the ERISA Affiliates and no Person other than
the Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any of the Loan Parties or any of the ERISA Affiliates
could reasonably be expected to have liability under Section 4069 of ERISA
in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on any date
of determination, that, on such date:
(a) the fair value of the property and assets of such Person is
greater than the total amount of liabilities (including, without
limitation, contingent liabilities) of such Person;
(b) the present fair salable value of the property and assets of
such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become
absolute and matured;
(c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature; and
(d) such Person is not engaged in business or in a transaction,
and is not about to engage in business or in a transaction, for which
such Person's property and assets would constitute an unreasonably
small capital.
The fair value and the present fair salable value of the property and
assets of any such Person shall be computed taking into account the
aggregate amount of all payments in respect of reimbursement, contribution
and indemnification claims against any other Person (other than an
Affiliate of such Person) that, in light of the circumstances existing at
such time, such Person reasonably believes in good faith it will receive
with reasonable promptness. The amount of contingent liabilities of any
such Person at any time shall be computed as the amount that, in the light
of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility other than a Trade Letter of Credit.
"Stockholders Agreement" means the Stockholders Agreement dated as of
January 20, 1999 among the Borrower, Holdings LLC, the Sellers and each of
the other Equity Investors from time to time party thereto, as such
agreement may be amended, supplemented or otherwise modified hereafter from
time to time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"Subsidiaries Guarantee" has the meaning specified in Section 5.02(k).
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"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, unlimited liability
company, trust or estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time shares of
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency);
(b) the interest in the capital or profits of such partnership,
joint venture, limited liability company or unlimited liability
company; or
(c) the beneficial interest in such trust or estate,
is at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more
of such Person's other Subsidiaries.
"Surviving Indebtedness" has the meaning specified in Section 3.01(f).
"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(d) or (b) any of the Revolving Credit Lenders
pursuant to Section 2.02(b)(ii).
"Swing Line Bank" has the meaning specified in the recital of parties
to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of (a) a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(d) or (b)
simultaneous Swing Line Advances made by the Revolving Credit Lenders
pursuant to Section 2.02(b)(ii).
"Swing Line Commitment" means, with respect to the Swing Line Bank at
any time, the amount set forth opposite the Swing Line Bank's name on Part
B of Schedule I hereto under the caption "Swing Line Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Swing Line Facility" means, at any time, an amount equal to the
lesser of (a) the amount of the Swing Line Commitment at such time and (b)
$10,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Taxes" has the meaning specified in Section 2.12(a).
"Term A Advance" means, with respect to each of the Term A Lenders,
the single advance deemed to have been made on the Effective Date by such
Term A Lender to the Borrower pursuant to Section 2.01(a).
"Term A Borrowing" means a borrowing consisting of simultaneous Term A
Advances of the same Type made (or deemed to have been made) by the Term A
Lenders.
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"Term A Commitment" means, with respect to any of the Term A Lenders
at any time, the amount set forth opposite such Term A Lender's name on
Part B of Schedule I hereto under the caption "Term A Commitment" or, if
such Term A Lender has entered into one or more Assignment and Acceptances,
the amount set forth for such Term A Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(f) as such Term A
Lender's "Term A Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Term A Facility" means, at any time, the aggregate Term A Commitments
of all of the Term A Lenders at such time.
"Term A Lender" means, at any time, any of the Lenders that has a Term
A Commitment at such time.
"Term A Note" means a promissory note of the Borrower payable to the
order of any of the Term A Lenders, in substantially the form of Exhibit
A-1 hereto, evidencing the indebtedness of the Borrower to such Term A
Lender resulting from the Term A Advance made (or deemed to have been made)
by such Term A Lender.
"Term Advance" means a Term A Advance or a Term B Advance, as the
context may require.
"Term B Advance" means, with respect to each of the Term B Lenders,
the single advance deemed to have been made on the Effective Date by such
Term B Lender to the Borrower pursuant to Section 2.01(b).
"Term B Borrowing" means a borrowing consisting of simultaneous Term B
Advances of the same Type made (or deemed to have been made) by the Term B
Lenders.
"Term B Commitment" means, with respect to any of the Term B Lenders
at any time, the amount set forth opposite such Term B Lender's name on
Part B of Schedule I hereto under the caption "Term B Commitment" or, if
such Term B Lender has entered into one or more Assignment and Acceptances,
the amount set forth for such Term B Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(f) as such Term B
Lender's "Term B Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Term B Facility" means, at any time, the aggregate Term B Commitments
of all of the Term B Lenders at such time.
"Term B Lender" means, at any time, any of the Lenders that has a Term
B Commitment at such time.
"Term B Note" means a promissory note of the Borrower payable to the
order of any of the Term B Lenders, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Term B
Lender resulting from the Term B Advance made (or deemed to have been made)
by such Term B Lender.
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"Term Commitment" means a Term A Commitment or a Term B Commitment, as
the context may require.
"Term Facility" means the Term A Facility or the Term B Facility, as
the context may require.
"Term Lender" means a Term A Lender or a Term B Lender, as the context
may require.
"Termination Date" means the earlier of (a) the date of termination in
whole of all of the Commitments of the Lender Parties pursuant to Section
2.05 or 6.01 and (b) (i) with respect to the Term A Facility, the Revolving
Credit Facility, the Swing Line Facility and the Letter of Credit Facility,
January 20, 2005 and (ii) with respect to the Term B Facility, January 20,
2006.
"THL" has the meaning specified in Preliminary Statement (1) to this
Agreement.
"THL Entities" means, collectively, the Thomas H. Lee Equity Fund IV,
L.P. and the Thomas H. Lee Foreign Fund IV, L.P.
"THL Subordination Agreement" means the Subordination Agreement dated
as of January 20, 1999 made by THL Equity Advisors IV, L.L.C. and Thomas H.
Lee Capital, L.L.C. in favor of the Administrative Agent, on behalf of the
Secured Parties, as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time in accordance with the terms
thereof, but solely to the extent permitted under the terms of the Loan
Documents.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory to the Borrower or any of the Restricted Subsidiaries to effect
payment for such inventory.
"Transaction" means, collectively, (a) the consummation of the
Pre-Closing Reorganization and the Recapitalization, (b) the entering into
by the Borrower and its Subsidiaries of the Loan Documents and the Related
Documents to which they are or are intended to be a party, (c) the issuance
and sale of the initial Senior Subordinated Notes, (d) the redemption or
refinancing of the initial Senior Subordinated Notes with the proceeds of
the issuance and sale of the permanent Senior Subordinated Notes and, if
applicable, the issuance and sale of the Warrants related thereto, (e) the
payment of the fees and expenses incurred in connection with the
consummation of the foregoing and (f) on or after the Effective Date, the
issuance and sale of the Permitted Preferred Stock.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UIC Class A Common Stock" has the meaning specified in Preliminary
Statement (3) to this Agreement.
"UIC Class B Common Stock" has the meaning specified in Preliminary
Statement (3) to this Agreement.
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"UIC Common Stock" has the meaning specified in Preliminary Statement
(3) to this Agreement.
"Unrestricted Subsidiary" means, at any time, each of the Subsidiaries
of the Borrower that does not constitute a Restricted Subsidiary at such
time.
"Unused Revolving Credit Commitment" means, with respect to any of the
Revolving Credit Lenders at any time, (a) the Revolving Credit Commitment
of such Revolving Credit Lender at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances made (or
deemed to have been made) by such Revolving Credit Lender (in its
capacity as a Lender) and outstanding at such time; and
(ii) such Revolving Credit Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank (in its capacity as the Issuing
Bank) pursuant to Section 2.03(c)(i) and outstanding at such time and
(C) the aggregate principal amount of all Swing Line Advances made by
the Swing Line Bank (in its capacity as the Swing Line Bank) pursuant
to Section 2.01(d) and outstanding at such time.
"Voting Equity Interests" has the meaning specified in Section
5.02(k)(v).
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"Warrants" means the warrants to purchase UIC Common Stock
representing up to 5% of all of the UIC Common Stock (on a fully diluted
basis) to be issued, if required, to the purchasers of the Senior
Subordinated Notes in accordance with the provisions of the Note Purchase
Agreement.
"Welfare Plan" means a welfare plan, as defined in Section 3(l) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"Year 2000 Problem" has the meaning specified in Section 4.01(aa).
SECTION 1.02. Computation of Time Periods; Other Constructional Provisions.
In this Agreement and the other Loan Documents, in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including", the word "through" means "through and including" and the
words "to" and "until" each mean "to but excluding". References in this
Agreement or
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any of the other Loan Documents to any agreement, instrument or other document
"as amended" shall mean and be a reference to such agreement, instrument or
other document as amended, amended and restated, supplemented or otherwise
modified hereafter from time to time in accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; provided, however,
that, if any changes in accounting principles from those used in the preparation
of the Consolidated financial statements of the Borrower and its Subsidiaries
for the Fiscal Year ended December 31, 1998 (as delivered to the Lender Parties
pursuant to Section 4.01(f)) occur by reason of the promulgation of rules,
regulations, pronouncements, opinions or other requirements of the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) and such
changes would affect (or would result in a change in the method of calculation
of) any of the covenants set forth in Section 5.02 or 5.03, the determination of
Excess Cash Flow for any Fiscal Year or any of the defined terms related to the
foregoing contained in Section 1.01, then, upon the request of any party hereto,
the Borrower, the Administrative Agent and the Lender Parties shall enter into
negotiations in good faith, if and to the extent necessary, to amend in
accordance with Section 8.01 all such covenants or terms as would be affected by
such changes in GAAP in such manner as would maintain the economic and credit
terms of such covenants as in effect under this Agreement, prior to giving
effect to the occurrence of any such changes; and provided further, however,
that until the amendment of the covenants and the defined terms referred to in
the immediately preceding proviso becomes effective, all covenants and defined
terms shall be performed, observed and determined, and any determination of
compliance with any such covenant shall be made, as though no such changes in
accounting principles had been made and the Borrower shall deliver to the Lender
Parties, in addition to the Consolidated financial statements of the Borrower
and its Subsidiaries otherwise required to be delivered to the Lenders under
Sections 5.03(b), 5.03(c) and 5.03(d) during such period, a statement of
reconciliation conforming such Consolidated financial statements of the Borrower
and its Subsidiaries to GAAP as in effect prior to such changes.
SECTION 1.04. Currency Equivalents Generally. Any amount specified in this
Agreement (other than in Articles II, VII and VIII) or any of the other Loan
Documents to be in U.S. dollars shall also include and be a reference to the
equivalent of such amount in any currency other than U.S. dollars, such
equivalent amount to be determined at the rate of exchange quoted by NationsBank
in Charlotte, North Carolina at the close of business on the Business Day
immediately preceding any date of determination thereof to prime banks in New
York, New York for the spot purchase in the New York foreign exchange market of
such amount in U.S. dollars with such other currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Term A
Advances. Each of the Existing Lenders will, as of the Effective Date, sell and
assign to the other Term A Lenders an undivided interest in and to all of its
respective rights and obligations under and in respect of the Existing Term A
Advances (other than that portion of the Existing Term A Advances that is equal
to the amount of such Existing Lender's Term A Commitment on the Effective
Date), and each of the other Term A Lenders severally agrees, on the terms and
conditions hereinafter set forth, to purchase and assume an undivided
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interest in that portion of all Existing Term A Advances being so sold and
assigned by the Existing Lenders on the Effective Date that is equal to its Term
A Commitment on such date. The Existing Term A Advance owing to each of the Term
A Lenders on the Effective Date immediately after giving effect to all of the
assignments and assumptions described in the immediately preceding sentence
shall be deemed to be a Term A Advance made by such Term A Lender to the
Borrower hereunder on the Effective Date for all purposes of this Agreement.
Amounts purchased and assumed (or, in the case of any Term A Lender that is also
an Existing Lender, retained) by the Term A Lenders under this Section 2.01(a)
and repaid or prepaid may not be reborrowed.
(b) The Term B Advances. Each of the Existing Lenders will, as
of the Effective Date, sell and assign to the other Term B Lenders an undivided
interest in and to all of its respective rights and obligations under and in
respect of the Existing Term B Advances (other than that portion of the Existing
Term B Advances that is equal to the amount of such Existing Lender's Term B
Commitment on the Effective Date), and each of the other Term B Lenders
severally agrees, on the terms and conditions hereinafter set forth, to purchase
and assume an undivided interest in that portion of all Existing Term B Advances
being so sold and assigned by the Existing Lenders on the Effective Date that is
equal to its Term B Commitment on such date. The Existing Term B Advance owing
to each of the Term B Lenders on the Effective Date immediately after giving
effect to all of the assignments and assumptions described in the immediately
preceding sentence shall be deemed to be a Term B Advance made by such Term B
Lender to the Borrower hereunder on the Effective Date for all purposes of this
Agreement. Amounts purchased and assumed (or, in the case of any Term B Lender
that is also an Existing Lender, retained) by the Term B Lenders under this
Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) The Revolving Credit Advances. Each of the Existing
Lenders will, as of the Effective Date, sell and assign to the other Revolving
Credit Lenders an undivided interest in and to all of its respective rights and
obligations under and in respect of the Existing Revolving Credit Advances
(other than the portion of the Existing Revolving Credit Advances that is equal
to such Existing Lender's Pro Rata Share (based on its Revolving Credit
Commitment on the Effective Date) of all Existing Revolving Credit Advances
being so sold and assigned by the Existing Lenders on such date), and each of
the other Revolving Credit Lenders severally agrees, on the terms and conditions
hereinafter set forth, to purchase and assume an undivided interest in its Pro
Rata Share (based on its Revolving Credit Commitment on the Effective Date) of
all Existing Revolving Credit Advances outstanding on such date. The Existing
Revolving Credit Advance owing to each of the Revolving Credit Lenders on the
Effective Date immediately after giving effect to all of the assignments and
assumptions described in the immediately preceding sentence shall be deemed to
be a Revolving Credit Advance made by such Revolving Credit Lender to the
Borrower hereunder on the Effective Date for all purposes of this Agreement.
Each of the Revolving Credit Lenders severally further agrees, on the terms and
conditions hereinafter set forth, to make additional Revolving Credit Advances
to the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date for the Revolving Credit Facility in
an amount for each such Revolving Credit Advance not to exceed the Unused
Revolving Credit Commitment of such Revolving Credit Lender at such time. Each
of the Revolving Credit Borrowings shall be in an aggregate amount of $3,000,000
or an integral multiple of $500,000 in excess thereof (other than a Revolving
Credit Borrowing the proceeds of which shall be used solely to repay or prepay
in full the Swing Line Advances and the Letter of Credit Advances outstanding at
such time) or, if less, the amount of the aggregate Unused Revolving Credit
Commitments at the time of such Revolving Credit Borrowing. Each of the
Revolving Credit Borrowings shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders in accordance with their
respective Pro Rata Shares of the Revolving Credit Facility. Within the limits
of the Unused Revolving Credit Commitments
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of the Revolving Credit Lenders in effect from time to time, the Borrower may
borrow under this Section 2.01(c), prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(c).
(d) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, unless it promptly
notifies the Borrower of its reasonable objection to doing so, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the Effective Date until the
Termination Date for the Swing Line Facility in an amount (i) for all
outstanding Swing Line Advances not to exceed the Swing Line Facility on such
Business Day and (ii) for each such Swing Line Advance not to exceed the
aggregate Unused Revolving Credit Commitments of the Revolving Credit Lenders on
such Business Day. No Swing Line Advance shall be used for the purpose of
funding the payment of principal of any other Swing Line Advance. Each Swing
Line Advance shall be in an amount of $250,000 or an integral multiple of
$50,000 in excess thereof and shall be comprised of a Base Rate Advance. Within
the limits of the first sentence of this Section 2.01(d), so long as the Swing
Line Bank has not notified the Borrower of its reasonable objection to making
Swing Line Advances, the Borrower may borrow under this Section 2.01(d), repay
pursuant to Section 2.04(d) or prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(d).
(e) Letters of Credit. The Borrower, the Issuing Bank and each
of the Revolving Credit Lenders hereby agree that each of the Existing Letters
of Credit shall, on and after the Effective Date, continue as and be deemed for
all purposes of this Agreement to be a Letter of Credit issued and outstanding
under the terms of this Agreement. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each a "Letter of
Credit") in U.S. dollars for the account of the Borrower from time to time on
any Business Day during the period from the Effective Date to ten days prior to
the scheduled Termination Date for the Letter of Credit Facility (i) in an
aggregate Available Amount for all outstanding Letters of Credit not to exceed
the Letter of Credit Facility on such Business Day and (ii) in an Available
Amount for each such Letter of Credit not to exceed the aggregate Unused
Revolving Credit Commitment of the Revolving Credit Lenders on such Business
Day. No Trade Letter of Credit shall have an expiration date later than the
earlier of (A) ten days prior to the scheduled Termination Date for the Letter
of Credit Facility and (B) 60 days after the date of issuance thereof. No
Standby Letter of Credit shall have an expiration date (including all rights of
the Borrower or the beneficiary of such Letter of Credit to require renewal)
later than the earlier of (1) 30 days prior to the scheduled Termination Date
for the Letter of Credit Facility and (2) one year after the date of issuance
thereof, but any such Standby Letter of Credit may by its terms be renewable
annually upon notice (a "Notice of Renewal") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Standby Letter of Credit, but in any event at least three Business Days
prior to the date of the proposed renewal of such Standby Letter of Credit and
upon fulfillment of the applicable conditions set forth in Article III, unless
the Issuing Bank has notified the Borrower (with a copy to the Administrative
Agent) on or prior to the date for notice of termination set forth in such
Standby Letter of Credit but in any event at least ten Business Days prior to
the date of automatic renewal of its election not to renew such Standby Letter
of Credit (a "Notice of Termination"); provided that the terms of each of the
Standby Letters of Credit that is automatically renewable annually (1) shall
require the Issuing Bank to give the beneficiary of such Standby Letter of
Credit notice of any Notice of Termination, (2) shall permit such beneficiary,
upon receipt of such notice, to draw under such Standby Letter of Credit prior
to the date on which such Standby Letter of Credit otherwise would have been
automatically renewed and (3) shall not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date that is later than 30 days prior to the scheduled Termination
Date for the Letter of Credit Facility. If either a Notice of Renewal is not
given
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by the Borrower or a Notice of Termination is given by the Issuing Bank pursuant
to the immediately preceding sentence, the related Standby Letter of Credit
shall expire on the date on which it otherwise would have been automatically
renewed; provided, however, that in the absence of receipt of a Notice of
Renewal the Issuing Bank may in its discretion, unless instructed to the
contrary by the Administrative Agent or the Borrower, deem that a Notice of
Renewal had been timely delivered and, in such case, a Notice of Renewal shall
be deemed to have been so delivered for all purposes under this Agreement.
Within the limits of the Letter of Credit Facility, and subject to the limits
referred to above in this Section 2.01(e), the Borrower may request the issuance
of Letters of Credit under this Section 2.01(e), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(e).
(f) Clean-Down. Notwithstanding any of the provisions of
Sections 2.01(c), 2.01(d) and 2.01(e), no Borrowing may be made under Section
2.01(c) or 2.01(d) and no new Letter of Credit may be issued under Section
2.01(e) during any Clean-Down Period unless, in each case, the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances and
Letter of Credit Advances outstanding (or to be outstanding) after giving effect
to any such Borrowing or any such issuance, as the case may be, shall not exceed
$10,000,000.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03 or in respect of any Borrowing requested to
be made on the Effective Date, in which case notice shall be given on the
Effective Date, each Borrowing shall be made on notice, given not later than
1:00 P.M. (Charlotte, North Carolina time) on the third Business Day prior to
the date of the proposed Borrowing in the case of any Borrowing comprised of
Eurodollar Rate Advances, or on the first Business Day prior to the date of the
proposed Borrowing in the case of any Borrowing comprised of Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give prompt notice
thereof to each of the Appropriate Lenders by telex or telecopier. Each notice
of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or by telex or telecopier, shall be in substantially the
form of Exhibit B-1 hereto and duly executed by a Responsible Officer of the
Borrower, and shall specify therein: (i) the requested date of such Borrowing
(which shall be a Business Day); (ii) the Facility under which such Borrowing is
requested to be made; (iii) the Type of Advances requested to comprise such
Borrowing; (iv) the requested aggregate principal amount of such Borrowing; and
(v) in the case of a Borrowing comprised of Eurodollar Rate Advances, the
requested duration of the initial Interest Period for each such Eurodollar Rate
Advance (and, if the requested duration of such initial Interest Period is
specified to be nine or twelve months, the desired alternative Interest Period
for each such Eurodollar Rate Advance). Each Appropriate Lender shall, before
1:00 P.M. (Charlotte, North Carolina time) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such Lender's
Pro Rata Share of such Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account; provided, however, that, in the
case of any Revolving Credit Borrowing, the Administrative Agent shall first
make a portion of such funds equal to the aggregate principal amount of all
Swing Line Advances and Letter of Credit Advances made by the Swing Line Bank
and the Issuing Bank, respectively, and by any of the Revolving Credit Lenders
and outstanding on the date of such Revolving Credit Borrowing, together with
all accrued and unpaid interest thereon to and as of such date, available to the
Swing Line Bank or the Issuing Bank, as the case may be, and to each such
Revolving Credit Lender for repayment of such outstanding Swing Line Advances
and Letter of Credit Advances made thereby.
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(b) (i) Each Swing Line Borrowing shall be made initially by
the Swing Line Bank on notice, given not later than 2:00 P.M. (Charlotte, North
Carolina time) on the date of the proposed Swing Line Borrowing, by the Borrower
to the Swing Line Bank and the Administrative Agent. Each notice of a Swing Line
Borrowing (a "Notice of Swing Line Borrowing") shall be by telephone, confirmed
immediately in writing, or by telex or telecopier, shall be in substantially the
form of Exhibit B-2 hereto and duly executed by a Responsible Officer of the
Borrower, and shall specify therein: (A) the requested date of such Swing Line
Borrowing (which shall be a Business Day); (B) the requested amount of such
Swing Line Borrowing; and (C) the requested maturity of such Swing Line
Borrowing (which maturity shall be no later than the 30th day after the
requested date of such Swing Line Borrowing). Unless the Swing Line Bank
promptly notifies the Borrower of its reasonable objection to making such Swing
Line Borrowing, the Swing Line Bank will make the amount thereof available for
the account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account.
(ii) Upon demand by the Swing Line Bank, with a copy of such
demand to the Administrative Agent (which shall give prompt notice thereof to
each of the Revolving Credit Lenders), each of the Revolving Credit Lenders
shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and
assign to each of the Revolving Credit Lenders, such Revolving Credit Lender's
Pro Rata Share of each of the outstanding Swing Line Advances owing to the Swing
Line Bank as of the date of such demand, by making available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account for the account of the Swing Line Bank, in same day funds, an
amount equal to its Pro Rata Share of each such outstanding Swing Line Advance.
Promptly after receipt of such funds, the Administrative Agent shall transfer
such funds to the Swing Line Bank at its Applicable Lending Office. Each of the
Revolving Credit Lenders hereby agrees to purchase its Pro Rata Share of each
outstanding Swing Line Advance owing to the Swing Line Bank for which a demand
for the purchase thereof has been made on (A) the Business Day on which demand
therefor is made by the Swing Line Bank so long as notice of such demand is
given not later than 1:00 P.M. (Charlotte, North Carolina time) on such Business
Day or (B) the first Business Day next succeeding such demand if notice of such
demand is given after such time. The Borrower hereby agrees to each such sale
and assignment. Upon any such assignment by the Swing Line Bank to any of the
Revolving Credit Lenders of a portion of a Swing Line Advance owing to the Swing
Line Bank, the Swing Line Bank represents and warrants to such Revolving Credit
Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any adverse claim, but makes no
other representation or warranty and assumes no responsibility with respect to
such Swing Line Advance, any of the Loan Documents or any of the Loan Parties.
If and to the extent that any of the Revolving Credit Lenders shall not have so
made its Pro Rata Share of any applicable Swing Line Advance available to the
Administrative Agent in accordance with the foregoing provisions of this Section
2.02(b)(ii), such Revolving Credit Lender hereby agrees to pay to the
Administrative Agent forthwith on demand the amount of its Pro Rata Share of
such Swing Line Advance, together with all accrued and unpaid interest thereon,
for each day from the date of demand therefor by the Swing Line Bank until the
date on which such amount is paid to the Administrative Agent, at the Federal
Funds Rate. If any of the Revolving Credit Lenders shall pay to the
Administrative Agent the amount of its Pro Rata Share of any applicable Swing
Line Advance for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line Advance
made by such Revolving Credit Lender on such Business Day for all purposes of
this Agreement, and the outstanding principal amount of the applicable Swing
Line Advance made by the Swing Line Bank shall be reduced by such amount on such
Business Day.
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(iii) The Obligation of each of the Revolving Credit Lenders
to purchase their respective Pro Rata Shares of each outstanding Swing Line
Advance owing to the Swing Line Bank upon demand for the purchase thereof
pursuant to clause (ii) of this Section 2.02(b) shall be absolute, unconditional
and irrevocable, and shall be made strictly in accordance with the terms thereof
under all circumstances, including, without limitation, the following
circumstances:
(A) any lack of validity or enforceability of any of the Loan
Documents or any of the other agreements or instruments relating
thereto;
(B) the existence of any claim, setoff, defense or other right
that such Revolving Credit Lender may have at any time against the
Swing Line Bank, the Borrower or any other Person, whether in
connection with the transactions contemplated by the Loan Documents or
any unrelated transaction;
(C) the occurrence and continuance of any Default; or
(D) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
(iv) The failure of any of the Revolving Credit Lenders to
purchase its Pro Rata Share of any outstanding Swing Line Advance owing to the
Swing Line Bank for which a demand for the purchase thereof has been made
pursuant to clause (ii) of this Section 2.02(b) shall not relieve any of the
other Revolving Credit Lenders of its obligation to purchase its Pro Rata Share
of such outstanding Swing Line Advance on the date of demand therefor, but none
of the Revolving Credit Lenders shall be responsible for the failure of any of
the other Revolving Credit Lenders to purchase its Pro Rata Share of such
outstanding Swing Line Advance on the date of demand therefor.
(c) Anything in subsection (a) of this Section 2.02 to the
contrary notwithstanding, the Borrower may not select Eurodollar Rate Advances
for any Borrowing (i) made on the Effective Date (it being understood and agreed
that the Existing Advances that are purchased and assumed (or, in the case of
any of the Initial Lenders that is also an Existing Lender, retained) by the
Appropriate Lenders under each of the Facilities on the Effective Date may
continue as (or otherwise be Converted into) Eurodollar Rate Advances on such
date), (ii) if the aggregate amount of such Borrowing is less than $3,000,000 or
(iii) if the obligation of the Appropriate Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.09(b) or 2.10. In
addition, the Term A Advances may not be outstanding as part of more than three
separate Term A Borrowings comprised of Eurodollar Rate Advances, the Term B
Advances may not be outstanding as part of more than three separate Term B
Borrowings comprised of Eurodollar Rate Advances, and the Revolving Credit
Advances may not be outstanding as part of more than eight separate Revolving
Credit Borrowings comprised of Eurodollar Rate Advances.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each of the Appropriate
Lenders against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in the Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender
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to fund the Eurodollar Rate Advance to be made by such Lender as part of such
Borrowing when such Eurodollar Rate Advance, as a result of such failure, is not
made on such date. A certificate of the Lender requesting compensation pursuant
to this Section 2.02(d), submitted to the Borrower by such Lender (with a copy
to the Administrative Agent) and specifying therein the amount of such
additional compensation (including the basis of calculation thereof), shall be
conclusive and binding for all purposes, absent manifest error.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's Pro Rata Share of such
Borrowing, the Administrative Agent may assume that such Lender has made the
amount of such Pro Rata Share available to the Administrative Agent on the date
of such Borrowing in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make a corresponding
amount available to the Borrower on such date. If and to the extent that such
Lender shall not have so made the amount of such Pro Rata Share available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
to pay to the Administrative Agent forthwith on demand such corresponding
amount, together with all accrued and unpaid interest thereon, for each day from
the date on which such corresponding amount is made available to the Borrower
until the date on which such corresponding amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable under Section 2.07 at such time to Advances comprising part of such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
corresponding amount so paid shall constitute such Lender's Advance as part of
such Borrowing for all purposes under this Agreement.
(f) The failure of any of the Lenders to make the Advance to
be made by it as part of any Borrowing shall not relieve any of the other
Lenders of its obligation, if any, hereunder to make its Advance on the date of
such Borrowing, but none of the Lenders shall be responsible for the failure of
any of the other Lenders to make the Advance to be made by such other Lender on
the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 3:00 P.M. (Charlotte, North Carolina
time) on the fifth Business Day prior to the date of the proposed issuance of
such Letter of Credit (or such later day as the Issuing Bank in its sole
discretion shall agree), by the Borrower to the Issuing Bank, which shall give
the Administrative Agent and each of the Revolving Credit Lenders prompt notice
thereof by telex or telecopier. Each notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or by telex or telecopier, shall be duly executed by a Responsible Officer of
the Borrower, and shall specify therein: (i) the requested date of such issuance
(which shall be a Business Day); (ii) the requested type and Available Amount of
such Letter of Credit; (iii) the requested expiration date of such Letter of
Credit (which shall comply with the requirements of Section 2.01(e)); (iv) the
name and address of the proposed beneficiary of such Letter of Credit; and (v)
the proposed form of such Letter of Credit, and shall be accompanied by such
application and agreement for letters of credit as the Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If the requested form of such Letter of Credit is
acceptable to the Issuing Bank in its sole discretion, the Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower at its office referred to in
Section 8.02 or as otherwise agreed with the Borrower in connection with such
issuance. If
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and to the extent that the provisions of any Letter of Credit Agreement shall
conflict with this Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
to the Administrative Agent and each of the Revolving Credit Lenders on the
first Business Day of each calendar quarter a written report setting forth (i)
the issuance and expiration dates of all Letters of Credit issued during the
immediately preceding calendar quarter and the drawings under all Letters of
Credit outstanding during such immediately preceding calendar quarter and (ii)
the average daily aggregate Available Amount of all Letters of Credit
outstanding during the immediately preceding calendar quarter.
(c) Drawing and Reimbursement. (i) The payment by the Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by the Issuing Bank of a Letter of Credit
Advance, which shall be a Base Rate Advance, in the amount of such draft. Upon
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each of the Revolving Credit Lenders shall purchase from the Issuing
Bank, and the Issuing Bank shall sell and assign to each of the Revolving Credit
Lenders, such Revolving Credit Lender's Pro Rata Share of each of the
outstanding Letter of Credit Advances owing to the Issuing Bank as of the date
of such demand, by making available for the account of its Applicable Lending
Office to the Administrative Agent for the account of the Issuing Bank, at the
Administrative Agent's Account, in same day funds, an amount equal to its Pro
Rata Share of each such outstanding Letter of Credit Advance. Promptly after
receipt of such funds, the Administrative Agent shall transfer such funds to the
Issuing Bank at its Applicable Lending Office. Each of the Revolving Credit
Lenders hereby agrees to purchase its Pro Rata Share of each outstanding Letter
of Credit Advance owing to the Issuing Bank for which a demand for the purchase
thereof has been made on (A) the Business Day on which demand therefor is made
by the Issuing Bank so long as notice of such demand is given not later than
1:00 P.M. (Charlotte, North Carolina time) on such Business Day or (B) the first
Business Day next succeeding such demand if notice of such demand is given after
such time. The Borrower hereby agrees to each such sale and assignment. Upon any
such assignment by the Issuing Bank to any of the Revolving Credit Lenders of a
portion of a Letter of Credit Advance owing to the Issuing Bank, the Issuing
Bank represents and warrants to such Revolving Credit Lender that the Issuing
Bank is the legal and beneficial owner of such interest being assigned by it,
free and clear of any adverse claim, but makes no other representation or
warranty and assumes no responsibility with respect to such Letter of Credit
Advance, any of the Loan Documents or any of the Loan Parties. If and to the
extent that any of the Revolving Credit Lenders shall not have so made its Pro
Rata Share of any applicable Letter of Credit Advance available to the
Administrative Agent in accordance with the foregoing provisions of this Section
2.03(c)(i), such Revolving Credit Lender hereby agrees to pay to the
Administrative Agent forthwith on demand the amount of its Pro Rata Share of
such Letter of Credit Advance, together with all accrued and unpaid interest
thereon, for each day from the date of demand therefor by the Issuing Bank until
the date on which such amount is paid to the Administrative Agent, at the
Federal Funds Rate. If any of the Revolving Credit Lenders shall pay to the
Administrative Agent the amount of its Pro Rata Share of any applicable Letter
of Credit Advance for the account of the Issuing Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Letter of Credit
Advance made by such Revolving Credit Lender on such Business Day for all
purposes of this Agreement, and the outstanding principal amount of the
applicable Letter of Credit Advance made by the Issuing Bank shall be reduced by
such amount on such Business Day.
(ii) The Obligation of each of the Revolving Credit Lenders to
purchase their respective Pro Rata Shares of each outstanding Letter of Credit
Advance owing to the Issuing Bank upon demand for the purchase thereof pursuant
to clause (i) of this Section 2.03(c) shall be absolute, unconditional and
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irrevocable, and shall be made strictly in accordance with the terms thereof
under all circumstances, including, without limitation, the following
circumstances:
(A) any lack of validity or enforceability of any of the Loan
Documents, any of the Letter of Credit Agreements, any of the Letters of
Credit or any of the other agreements or instruments relating thereto
(collectively, the "L/C Related Documents");
(B) the existence of any claim, setoff, defense or other right that
such Revolving Credit Lender may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank, the
Borrower or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(C) the occurrence and continuance of any Default; or
(D) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
(d) Failure to Make Letter of Credit Advances. The failure of any of the
Revolving Credit Lenders to purchase its Pro Rata Share of any outstanding
Letter of Credit Advance owing to the Issuing Bank for which a demand for the
purchase thereof has been made pursuant to Section 2.03(c)(i) shall not relieve
any of the other Revolving Credit Lenders of its obligation to purchase its Pro
Rata Share of such outstanding Letter of Credit Advance on the date of demand
therefor, but none of the Revolving Credit Lenders shall be responsible for the
failure of any of the other Revolving Credit Lenders to purchase its Pro Rata
Share of such outstanding Letter of Credit Advance on the date of demand
therefor.
SECTION 2.04. Repayment of Advances. (a) Term A Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Term A
Lenders the aggregate principal amount of all Term A Advances outstanding on the
following dates in the respective amounts set forth opposite such dates (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.05):
Date Amount
---- ------
June 30, 1999 $2,500,000
September 30, 1999 2,500,000
December 31, 1999 2,500,000
March 31, 2000 2,500,000
June 30, 2000 2,500,000
September 30, 2000 2,500,000
December 31, 2000 2,500,000
March 31, 2001 2,500,000
June 30, 2001 2,500,000
September 30, 2001 2,500,000
December 31, 2001 2,500,000
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Date Amount
---- ------
March 31, 2002 2,500,000
June 30, 2002 2,500,000
September 30, 2002 $2,500,000
December 31, 2002 2,500,000
March 31, 2003 2,500,000
June 30, 2003 4,375,000
September 30, 2003 4,375,000
December 31, 2003 4,375,000
March 31, 2004 4,375,000
June 30, 2004 4,375,000
September 30, 2004 4,375,000
December 31, 2004 4,375,000
January 20, 2005 4,375,000
provided, however, that the final principal repayment installment of the Term A
Advances shall be repaid on the Termination Date for the Term A Facility and in
any event shall be in an amount equal to the aggregate principal amount of all
Term A Advances outstanding on such date.
(b) Term B Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
principal amount of all Term B Advances outstanding on the following dates in
the respective amounts set forth opposite such dates (which amounts shall be
reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.05):
Date Amount
---- ------
June 30, 1999 $375,000
September 30, 1999 375,000
December 31, 1999 375,000
March 31, 2000 375,000
June 30, 2000 375,000
September 30, 2000 375,000
December 31, 2000 375,000
March 31, 2001 375,000
June 30, 2001 375,000
September 30, 2001 375,000
December 31, 2001 375,000
March 31, 2002 375,000
June 30, 2002 375,000
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Date Amount
---- ------
September 30, 2002 375,000
December 31, 2002 375,000
March 31, 2003 375,000
June 30, 2003 $ 375,000
September 30, 2003 375,000
December 31, 2003 375,000
March 31, 2004 375,000
June 30, 2004 375,000
September 30, 2004 375,000
December 31, 2004 375,000
March 31, 2005 375,000
June 30, 2005 35,250,000
September 30, 2005 35,250,000
December 31, 2005 35,250,000
January 20, 2006 35,250,000
provided, however, that the final principal repayment installment of the Term B
Advances shall be repaid on the Termination Date for the Term B Facility and in
any event shall be in an amount equal to the aggregate principal amount of all
Term B Advances outstanding on such date.
(c) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date for the Revolving Credit Facility the aggregate principal
amount of all Revolving Credit Advances outstanding on such date.
(d) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and, if applicable,
each of the Revolving Credit Lenders on the earlier of (i) the maturity date for
each Swing Line Advance as specified in the related Notice of Swing Line
Borrowing (which maturity shall be no later than the 30th day after the date on
which such Swing Line Borrowing was initially made by the Swing Line Bank) and
(ii) the Termination Date for the Swing Line Facility the principal amount of
each such Swing Line Advance made by the Swing Line Bank and each such Revolving
Credit Lender and outstanding on such date.
(e) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and, if applicable,
each of the Revolving Credit Lenders on the earlier of (A) the date of demand
therefor and (B) the Termination Date for the Letter of Credit Facility the
principal amount of each such Letter of Credit Advance made by the Issuing Bank
and each such Revolving Credit Lender and outstanding on such date.
(ii) The Obligations of the Borrower under this Agreement, any
of the Letter of Credit Agreements and any of the other agreements or
instruments relating to any Letter of Credit shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances (subject to the
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rights afforded to the Borrower under Section 8.08), including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any of the L/C Related
Documents;
(B) any change in the time, manner or place of payment of, or in any
of the other terms of, all or any of the Obligations of the Borrower in
respect of any of the L/C Related Documents or any other amendment or
waiver of or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, setoff, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any 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;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit, unless such draft is substantially
different from the applicable form specified by such Letters of Credit;
(F) any exchange, release or nonperfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from the Subsidiaries Guarantee or any other guarantee, for all
or any of the Obligations of the Borrower under or in respect of the L/C
Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrower may, upon at least one Business Day's notice to the Administrative
Agent, terminate in whole or reduce in part the unused portion of the Letter of
Credit Facility or the Unused Revolving Credit Commitments; provided that each
partial reduction of a Facility shall be in an aggregate amount of $3,000,000 or
an integral multiple of $500,000 in excess thereof or, if less, the aggregate
amount of such Facility.
(b) Mandatory. (i) The Term A Facility shall be automatically and
permanently reduced on each date on which the Term A Advances outstanding
thereunder are repaid or prepaid by an amount equal to the amount, if any, by
which (A) the Term A Facility immediately prior to such reduction exceeds (B)
the aggregate principal amount of all Term A Advances outstanding on such date
(after giving effect to such repayment or prepayment).
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(ii) The Term B Facility shall be automatically and
permanently reduced on each date on which the Term B Advances outstanding
thereunder are repaid or prepaid by an amount equal to the amount, if any, by
which (A) the Term B Facility immediately prior to such reduction exceeds (B)
the aggregate principal amount of all Term B Advances outstanding on such date
(after giving effect to such repayment or prepayment).
(iii) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving Credit
Advances outstanding thereunder is required to be made pursuant to Section
2.06(b)(i), 2.06(b)(ii) or 2.06(b)(vii) by an amount equal to the applicable
Reduction Amount.
(iv) The Swing Line Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving Credit
Facility by an amount equal to the amount, if any, by which (A) the Swing Line
Facility on such date exceeds (B) the Revolving Credit Facility on such date
(after giving effect to such reduction of the Revolving Credit Facility on such
date).
(v) The Letter of Credit Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving Credit
Facility by an amount equal to the amount, if any, by which (A) the Letter of
Credit Facility on such date exceeds (B) the Revolving Credit Facility on such
date (after giving effect to such reduction of the Revolving Credit Facility).
(c) Application of Commitment Reductions. Upon each reduction
of a Facility pursuant to this Section 2.05, the Commitment of each of the
Appropriate Lenders under such Facility shall be reduced by such Lender's Pro
Rata Share of the amount by which such Facility is reduced.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon at least three Business Days' notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the aggregate principal amount of the
Advances comprising part of the same Borrowing and outstanding on such date, in
whole or ratably in part; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of $3,000,000 or an integral multiple
of $500,000 in excess thereof and (ii) in the case of any such prepayment of a
Eurodollar Rate Advance on a date other than the last day of an Interest Period
therefor, the Borrower shall also pay any amounts owing in respect of such
Eurodollar Rate Advance pursuant to Section 8.04(c). Each prepayment of Term
Advances pursuant to this Section 2.06(a) shall be applied ratably to the Term
Facilities and, in the case of each of the Term Facilities, first, to the next
two succeeding principal repayment installments thereof in direct order of
maturity until such principal repayment installments are repaid in full and
second, to the remaining principal repayment installments thereof in on a pro
rata basis.
(b) Mandatory. (i) The Borrower shall, on the fifth day
following each date on which the Borrower delivers the Required Financial
Information for any Fiscal Year (but in any event within 95 days after the end
of each Fiscal Year), commencing with the Required Financial Information for the
Fiscal Year ending December 31, 1999, prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings (and, if applicable, deposit
an amount in the L/C Cash Collateral Account) in an amount equal to 50% of the
amount of Excess Cash Flow for such Fiscal Year. Each prepayment of Advances and
deposit into the L/C Cash Collateral Account pursuant to this Section 2.06(b)(i)
shall be applied, first, ratably to the Term Facilities and, in the case of each
of the Term Facilities, to the principal
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repayment installments thereof on a pro rata basis until all Term Advances are
paid in full and, thereafter, to the Revolving Credit Facility in the manner set
forth in clause (vi) of this Section 2.06(b).
(ii) The Borrower shall, on the date of receipt of the Net
Cash Proceeds by the Borrower or any of its Subsidiaries from:
(A) the sale, lease, transfer or other disposition of any
property or assets of the Borrower or any of its Subsidiaries (other
than any property or assets expressly permitted to be sold, leased,
transferred or disposed of under clause (i), (ii) or (iii) of Section
5.02(d) and, except to the extent such prepayment is required
thereunder, under subclauses (iv) and (v) of Section 5.02(d));
(B) the incurrence or issuance by the Borrower or any of its
Subsidiaries of any Indebtedness (other than Indebtedness expressly
permitted to be incurred or issued pursuant to subclause (i)(B),
(ii)(A), (ii)(C) or (ii)(H) of Section 5.02(b));
(C) the issuance or sale by the Borrower or any of its
Subsidiaries of any Equity Interests therein (other than any Permitted
Affiliate Investment or any Equity Interests expressly permitted to be
issued and sold pursuant to clause (i), (ii), (vi), (ix) or (x) of
Section 5.02(f));
(D) the acceptance of any capital contributions by the
Borrower or any of its Subsidiaries (other than any Permitted Affiliate
Investment or clause (viii)(B) of Section 5.02(f)); and
(E) any Extraordinary Receipts received by or paid to or for
the account of the Borrower or any of its Subsidiaries and not
otherwise included in subclause (ii)(A), (ii)(B), (ii)(C) or (ii)(D) of
this Section 2.06(b),
prepay an aggregate principal amount of the Advances comprising part of the same
Borrowings (and, if applicable, deposit an amount in the L/C Cash Collateral
Account) in an amount equal to 50% of the amount of such Net Cash Proceeds, in
the case of subclauses (ii)(C) and (ii)(D) of this Section 2.06(b), and 100% of
the amount of such Net Cash Proceeds, in all other cases under this Section
2.06(b); provided, however, that, notwithstanding the foregoing provisions of
this Section 2.06(b)(ii), the Borrower shall not be required to prepay any
outstanding Advances or to cash collateralize any outstanding Letters of Credit
pursuant to this Section 2.06(b)(ii) with any of the Net Cash Proceeds received
by the Borrower from post-closing purchase price adjustments made pursuant to
Section 2.1 of the Recapitalization Agreement. Each prepayment of Advances and
deposit into the L/C Cash Collateral Account pursuant to this Section
2.06(b)(ii) shall be applied, first, ratably to the Term Facilities and, in the
case of each of the Term Facilities, to the principal repayment installments
thereof on a pro rata basis until all Term Advances are paid in full and,
thereafter, to the Revolving Credit Facility in the manner set forth in clause
(vi) of this Section 2.06(b).
(iii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Swing Line Advances and the Letter of Credit Advances
(and, if applicable, shall deposit an amount into the L/C Cash Collateral
Account) in an amount equal to the amount, if any, by which (A) the sum of (1)
the aggregate principal amount of all Revolving Credit Advances, Swing Line
Advances and Letter of Credit Advances outstanding on such Business Day and (2)
the aggregate Available Amount of all Letters of Credit outstanding on such
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Business Day exceeds (B) the Revolving Credit Facility on such Business Day
(after giving effect to any permanent reduction thereof pursuant to Section 2.05
on such Business Day).
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit into the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account on such Business Day to equal the amount, if any, by which (A) the
aggregate Available Amount of all Letters of Credit outstanding on such Business
Day exceeds (B) the Letter of Credit Facility on such Business Day (after giving
effect to any permanent reduction thereof pursuant to Section 2.05 on such
Business Day).
(v) The Borrower shall, on the first Business Day of each
Clean-Down Period, prepay an aggregate principal amount of the Revolving Credit
Advances comprising part of the same Borrowings, the Swing Line Advances and the
Letter of Credit Advances outstanding on such Business Day in an amount equal to
the amount by which (A) the aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances outstanding on such
Business Day exceeds (B) $10,000,000.
(vi) Prepayments of the Revolving Credit Facility made
pursuant to clause (i), (ii), (iii), (v) or (vii) of this Section 2.06(b),
first, shall be applied to prepay Letter of Credit Advances owing to the Issuing
Bank and outstanding at such time until all such Letter of Credit Advances are
paid in full, second, shall be applied to prepay Swing Line Advances owing to
the Swing Line Bank and outstanding at such time until all such Swing Line
Advances are paid in full, third, shall be applied to prepay Letter of Credit
Advances and Swing Line Advances owing to the Revolving Credit Lenders and
outstanding at such time until all such Letter of Credit Advances and Swing Line
Advances are paid in full, fourth, shall be applied to prepay Revolving Credit
Advances comprising part of the same Borrowings and outstanding at such time
until all Revolving Credit Advances are paid in full and, fifth, shall be
deposited in the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of all Letters of Credit outstanding at such time; and, in the
case of prepayments of the Revolving Credit Facility required pursuant to clause
(i), (ii) or (vii) of this Section 2.06(b), the amount remaining, if any, after
the prepayment in full of all Advances outstanding at such time and the 100%
cash collateralization of the aggregate Available Amount of all Letters of
Credit outstanding at such time (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being, collectively, the
"Reduction Amount") may be retained by the Borrower for use by the Borrower and
its Subsidiaries in the ordinary course of their business, and the Revolving
Credit Facility shall be automatically and permanently reduced as set forth in
Section 2.05(b)(iii). Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
(without any further action by or notice to or from the Borrower or any of the
other Loan Parties) to reimburse the Issuing Bank or the Revolving Credit
Lenders, as applicable.
(vii) Notwithstanding any of the other provisions of this
Section 2.06, (A) if, following the occurrence of any "Asset Sale" (as defined
in the applicable Senior Subordinated Notes Documents), the Borrower is required
to commit by a particular date (a "Commitment Date") to apply or to cause any of
its Subsidiaries to apply an amount equal to any of the "Asset Sale Proceeds"
(as defined in the applicable Senior Subordinated Notes Documents) thereof in a
particular manner, or to apply or to cause any of its Subsidiaries to apply by a
particular date (an "Application Date") an amount equal to any such "Asset Sale
Proceeds" in a particular manner, in either case in order to excuse the Borrower
from being required to make an offer to redeem or to repurchase all or a portion
of the Senior Subordinated Notes as a result of such "Asset Sale", and the
Borrower shall have failed to so commit or to so apply, or to have caused any of
its Subsidiaries to so commit or to so apply, an amount equal to such "Asset
Sale Proceeds" at least 30 days
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prior to the Commitment Date or the Application Date, as the case may be, or (B)
if the Borrower at any other time shall have failed to apply or to commit, or to
have caused any of its Subsidiaries to apply or to commit, an amount equal to
any such "Asset Sale Proceeds" and within 30 days thereafter (assuming no
further application or commitment of an amount equal to such "Asset Sale
Proceeds"), the Borrower would otherwise be required to make an offer to redeem
or to repurchase all or a portion of the Senior Subordinated Notes as a result
of such "Asset Sale", then, in either such case, the Borrower shall immediately
pay or cause to be paid to the Administrative Agent an amount equal to 100% of
such "Asset Sale Proceeds" to be applied to the prepayment of Advances
outstanding at such time and, if applicable, to cash collateralization of
Letters of Credit outstanding at such time, in each case, in the manner set
forth in clause (ii) of this Section 2.06(b) in such amounts as are required to
excuse the Borrower from making any such offer of redemption or repurchase.
(viii) Notwithstanding any of the other provisions of clause
(ii) of this Section 2.06(b), so long as no Default under Section 6.01(a) or
6.01(f) or Event of Default shall have occurred and be continuing, if any
prepayment of Eurodollar Rate Advances is required to be made under clause (i)
or (ii) of this Section 2.06(b) other than on the last day of the Interest
Period therefor, the Borrower may, in its sole discretion, direct the
Administrative Agent to deposit (and, if so directed, the Administrative Agent
shall deposit) the amount of any such prepayment otherwise required to be made
hereunder into the Cash Collateral Account until the last day of such Interest
Period, at which time the Administrative Agent shall be authorized (without any
further action by or notice to or from the Borrower or any of the other Loan
Parties) to apply such amount to the prepayment of such Advances in accordance
with the applicable provisions of this Section 2.06(b); provided, however, that
all such Eurodollar Rate Advances shall continue to bear interest as set forth
in Section 2.07 until the last day of the applicable Interest Period therefor.
(ix) Any of the Term B Lenders, at its option, may elect not
to accept any prepayment of the outstanding Term B Advances owing to it pursuant
to clause (i), (ii) or (vii) of this Section 2.06(b) so long as a corresponding
amount of Term A Advances remains outstanding at the time of such election, in
which event the provisions set forth in the next three succeeding sentences of
this Section 2.06(b)(ix) shall apply. Promptly upon receipt by the
Administrative Agent of the amount of any Excess Cash Flow pursuant to clause
(i) of this Section 2.06(b) or the amount of any Net Cash Proceeds pursuant to
clause (ii) or (vii) of Section 2.06(b), the Administrative Agent shall, so long
as (and to the extent that) a corresponding amount of aggregate Term A Advances
are outstanding on the date of such receipt, deposit the amount of such Excess
Cash Flow or such Net Cash Proceeds, as the case may be, applicable to the
prepayment of outstanding Term B Advances into the Cash Collateral Account
pending application of such amount on the related Mandatory Prepayment Date, and
promptly after the date of such receipt, the Administrative Agent shall give
written notice to each of the Term B Lenders of (A) the amount of Excess Cash
Flow or Net Cash Proceeds, as the case may be, so prepaid that, pursuant to the
applicable terms of this Section 2.06(b), is applicable to the prepayment of
outstanding Term B Advances (the "Mandatory Prepayment Amount") and (B) the date
on which the related prepayment of outstanding Term B Advances shall be made
(the "Mandatory Prepayment Date"), which date shall be no later than five
Business Days after the date of receipt of the related amount of Excess Cash
Flow or Net Cash Proceeds, as the case may be. Any Term B Lender that wishes to
decline its Pro Rata Share of such Mandatory Prepayment Amount on the related
Mandatory Prepayment Date (each a "Declining Term B Lender") shall give written
notice thereof to the Administrative Agent not later than 1:00 P.M. (Charlotte,
North Carolina time) at least two Business Days prior to the related Mandatory
Prepayment Date. The Administrative Agent shall, not later than 1:00 P.M. (New
York City time) on the related Mandatory Prepayment Date, (1) withdraw from the
Cash Collateral Account an amount equal to the aggregate amount so declined by
all of the Declining Term B Lenders (the
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"Declined Prepayment Amount") and apply such amount to the prepayment of the
Term A Advances outstanding on such Mandatory Prepayment Date, such prepayment
to be applied to the principal repayment installments thereof on a pro rata
basis, and (2) withdraw from the Cash Collateral Account an amount equal to the
difference between (x) the Mandatory Prepayment Amount and (y) the Declined
Prepayment Amount and apply such amount to the prepayment of the Term B Advances
owing to the Term B Lenders other than the Declining Term B Lenders and
outstanding on such Mandatory Prepayment Date, such prepayment to be applied to
the principal repayment installments owing to each such Term B Lender on a pro
rata basis.
(c) Prepayments to Include Accrued Interest, Etc. (i) All
prepayments under this Section 2.06 shall be made together with (A) accrued and
unpaid interest to the date of such prepayment on the principal amount so
prepaid and (B) in the case of any such prepayment of a Eurodollar Rate Advance
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurodollar Rate Advance pursuant to 8.04(c).
(ii) Prepayments of Advances outstanding under any Facility
pursuant to this Section 2.06 shall be applied to Base Rate Advances comprising
part of the same Borrowings under such Facility and outstanding at such time
and/or to Eurodollar Rate Advances comprising part of the same Borrowings under
such Facility and outstanding at such time which have an Interest Period then in
effect for which the last day is the same as the date of such prepayment before
any such prepayment shall be applied to any other Eurodollar Rate Advances
comprising part of the same Borrowings under such Facility and outstanding at
such time.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
of the Lender Parties from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time and (B) the Applicable
Margin for such Base Rate Advance in effect from time to time, payable
in arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Advance for such Interest Period and (B)
the Applicable Margin for such Eurodollar Rate Advance in effect on the
first day of such Interest Period, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f) or an Event of
Default, the Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each of the Lender Parties, payable in arrears on the
dates referred to in clause (i) or (ii) of Section 2.07(a), as applicable, and
on demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (i) or (ii) of
Section 2.07(a), as applicable, and (ii) to the fullest extent permitted by
applicable law, the amount of any
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interest, fees or other amounts payable under this Agreement or any of the other
Loan Documents to any of the Agents or any of the Lender Parties that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (i) or (ii) of
Section 2.07(a), as applicable, and, in all other cases, on Base Rate Advances
pursuant to clause (i) of Section 2.07(a).
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a) or a Notice of Conversion
pursuant to Section 2.09(a), the Administrative Agent shall give notice to the
Borrower and each of the Appropriate Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of clause (i) or (ii) of
Section 2.07(a), as applicable.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Revolving Credit Lenders a
fee (the "Commitment Fee"), from the Closing Date in the case of each of the
Existing Lenders, from the Effective Date in the case of each of the appropriate
Initial Lenders (other than the Existing Lenders) and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each of the other Revolving Credit Lenders until, in each case,
the Termination Date, payable in arrears quarterly on the last day of each
March, June, September and December, commencing March 31, 1999, and on the
Termination Date, at the Applicable Percentage in effect from time to time on
the sum of (i) the average daily Unused Revolving Credit Commitment of each of
the Revolving Credit Lenders during such quarter and (ii) each such Revolving
Credit Lender's Pro Rata Share of the average daily outstanding Swing Line
Advances during such quarter; provided, however, that no commitment fee shall
accrue on any of the Revolving Credit Commitments of a Defaulting Lender so long
as such Revolving Credit Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each of the Revolving Credit Lenders
a commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing March 31, 1999, on the earliest to occur of
the full drawing, expiration, termination or cancellation of any Letter of
Credit and on the Termination Date, on such Revolving Credit Lender's Pro Rata
Share of the average daily aggregate Available Amount of all Letters of Credit
outstanding from time to time during such quarter at the rate per annum equal to
the Applicable Margin in effect at such time for Eurodollar Rate Advances under
the Revolving Credit Facility.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, (A) an issuance fee for each Letter of Credit in an amount equal to
0.25% of the Available Amount of such Letter of Credit, payable on the date of
issuance of such Letter of Credit, and (B) such other commissions, transfer fees
and other fees and charges in connection with the issuance or administration of
each Letter of Credit as the Borrower and the Issuing Bank shall from time to
time agree.
(c) Agent's Fees. The Borrower shall pay to the Administrative
Agent for its account and, if applicable, the account of the other Agents such
fees as may from time to time be agreed between the Borrower and the
Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 1:00 P.M. (Charlotte, North
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Carolina time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances into Eurodollar
Rate Advances or of Eurodollar Rate Advances of one Interest Period into
Eurodollar Rate Advances of another Interest Period, or 1:00 P.M. (Charlotte,
North Carolina time) on the first Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Eurodollar Rate Advances into Base
Rate Advances, and subject to the provisions of subsection (b) of this Section
2.09 and Section 2.10, Convert all or any portion of the Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that:
(i) any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances;
(ii) any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be made only if no Default under Section 6.01(a) or
6.01(f) or Event of Default shall have occurred and be continuing and
shall be in an amount not less than the minimum amount specified in
Section 2.02(c);
(iii) no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.02(c); and
(iv) each Conversion of Advances comprising part of the same
Borrowing under any Facility shall be made among the Appropriate
Lenders in accordance with their respective Pro Rata Shares of such
Facility.
Each notice of a Conversion (a "Notice of Conversion") shall be delivered by
telephone, confirmed immediately in writing, or by telex or telecopier, shall be
in substantially the form of Exhibit B-3 hereto and duly executed by a
Responsible Officer of the Borrower, and shall, within the restrictions set
forth in the immediately preceding sentence, specify therein:
(A) the requested date of such Conversion (which shall be a
Business Day);
(B) the Advances requested to be Converted; and
(C) if such Conversion is into Eurodollar Rate Advances, the
requested duration of the Interest Period for such Eurodollar
Rate Advances (and, if the requested duration of such Interest
Period is specified to be nine or twelve months, the desired
alternative Interest Period for such Eurodollar Rate Advances).
The Administrative Agent shall give each of the Appropriate Lenders prompt
notice of each Notice of Conversion received by it, by telex or telecopier. Each
Notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" set forth
in Section 1.01, the Administrative Agent will forthwith so notify the Borrower
and the Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.
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(ii) Upon the occurrence and during the continuance of any
Default under Section 6.01(a) or 6.01(f) or any Event of Default, (A) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (B) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change (other than any change by way of the
imposition of or increase in reserve requirements included in the Eurodollar
Rate Reserve Percentage) in or in the interpretation or application of any
Requirement of Law after the date of this Agreement or (ii) the compliance with
any directive, guideline or request from any central bank or other Governmental
Authority or any change therein or in the interpretation, application,
implementation, administration or enforcement thereof, that, in any case under
this clause (ii), becomes effective or is issued or made after the date of this
Agreement (whether or not having the force of law), there shall be any increase
in the cost to any of the Lender Parties of agreeing to make or making, agreeing
to participate in or participating in, agreeing to renew or renewing or funding
or maintaining any Advances of either Type, or of agreeing to issue or of
issuing, maintaining or participating in Letters of Credit or of agreeing to
make or of making or maintaining Swing Line Advances or Letter of Credit
Advances, or any reduction in the amount owing to any of the Lender Parties or
their respective Applicable Lending Offices under this Agreement in respect of
any Advances of either Type or any Letters of Credit (excluding, for purposes of
this Section 2.10, any such increased costs resulting from (A) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (B) changes in the basis of
taxation of overall net income or overall gross income by the United States of
America or the jurisdiction under the laws of which such Lender Party is
organized or has either of its Applicable Lending Offices or any political
subdivision thereof), then the Borrower hereby agrees to pay, from time to time
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate or to reimburse such
Lender Party for all such increased costs or reduced amounts. Each of the Lender
Parties shall, as promptly as practicable after such Lender Party obtains
knowledge of such circumstances and the determination of such Lender Party to
request additional compensation from the Borrower pursuant to this Section
2.10(a), provide notice to the Administrative Agent and the Borrower of the
circumstances entitling such Lender Party to such additional compensation and
the amount of such additional compensation (including the basis of calculation
thereof), which notice shall be conclusive and binding for all purposes, absent
manifest error; provided, however, that none of the Lender Parties shall be
entitled to additional compensation under this Section 2.10(a) for any such cost
incurred or reduced amount suffered from and after the date that is 180 days
prior to the date such Lender Party first delivers such notice to the Borrower.
In determining any such additional compensation, such Lender Party may use
reasonable averaging and attribution methods. If any of the Lenders requests
additional compensation from the Borrower under this Section 2.10(a) in respect
of its making, participating in or renewing Eurodollar Rate Advances, the
Borrower may, upon notice to such Lender (with a copy of such notice to the
Administrative Agent), suspend the obligation of such Lender to make,
participate in and/or renew Eurodollar Rate Advances until the circumstances
giving rise to such request no longer exist and, during such time, all
Eurodollar Rate Advances that would otherwise be made by such Lender as part of
any Borrowing shall be made instead as Base Rate Advances and all payments of
principal of and interest on such Base Rate Advances shall, notwithstanding the
provisions of Section 2.07, be made at the same time as payments on the
Eurodollar Rate Advances otherwise comprising part of such Borrowing.
(b) If any of the Lender Parties determines that compliance
with any Requirements of Law or any directive, guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), or any change therein or in the interpretation, application,
implementation,
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administration or enforcement thereof, that is enacted or becomes effective, or
is implemented or is first required or expected to be complied with, after the
date of this Agreement, affects the amount of capital required or expected to be
maintained by such Lender Party (or either of the Applicable Lending Offices of
such Lender Party) or by any Person controlling such Lender Party and that the
amount of such capital is increased by or is based upon the existence of the
commitment of such Lender Party to lend hereunder or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the issuance
or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then the Borrower hereby agrees to pay, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), to
the Administrative Agent for the account of such Lender Party, from time to time
as specified by such Lender Party, additional amounts sufficient to compensate
such Lender Party or such Person in light of such circumstances, to the extent
that such Lender Party or such Person reasonably determines such increase in
capital to be allocable to the existence of the commitment of such Lender Party
to lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit. Each of
the Lender Parties shall, as promptly as practicable after such Lender Party
obtains knowledge of such circumstances and the determination of such Lender
Party to request additional compensation from the Borrower pursuant to this
Section 2.10(b), provide notice to the Administrative Agent and the Borrower of
the circumstances entitling such Lender Party to such additional compensation
and the amount of such additional compensation (including the basis of
calculation thereof), which notice shall be conclusive and binding for all
purposes, absent manifest error; provided, however, that none of the Lender
Parties shall be entitled to additional compensation under this Section 2.10(b)
for any such increases in capital required from and after the date that is 180
days prior to the date such Lender Party first delivers such notice to the
Borrower. In determining any such additional compensation, such Lender Party may
use reasonable averaging and attribution methods.
(c) If, with respect to any Eurodollar Rate Advances under
either of the Term Facilities or the Revolving Credit Facility, Lenders owed or
holding not less than a majority in interest of the aggregate principal amount
of all Advances outstanding under such Facility at any time notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of making,
participating in or renewing, or funding or maintaining, their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under such Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower (promptly following notice
thereof from the Appropriate Lenders) that such Lenders have determined that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any of the other provisions of this
Agreement, if the introduction of or any change in or in the interpretation of
any Requirements of Law shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, upon notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance of such Lender will automatically, on the last day of the then existing
Interest Period therefor, if permitted by applicable law, or otherwise upon
demand, Convert into a Base Rate Advance and (ii) the obligation of such Lender
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower (promptly
following notice thereof from such Lender) that such Lender has
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determined that the circumstances causing such suspension no longer exist. If
the obligation of a Lender to make Eurodollar Rate Advances is suspended
pursuant to this Section 2.10(d), then, until the circumstances that gave rise
to such suspension no longer apply to such Lender, all Eurodollar Rate Advances
that would otherwise be made by such Lender as part of any Borrowing shall be
made instead as Base Rate Advances and all payments of principal of and interest
on such Base Rate Advances shall, notwithstanding the provisions of Section
2.07, be made at the same time as payments on the Eurodollar Rate Advances
otherwise comprising part of such Borrowing.
(e) Each of the Lender Parties hereby agrees that, upon the
occurrence of any circumstances entitling such Lender Party to additional
compensation or to cease making, participating in or renewing, or funding or
maintaining, Advances under any of the foregoing provisions of this Section
2.10, such Lender Party shall use reasonable efforts (consistent with its
internal policy and with legal and regulatory restrictions) to designate a
different Applicable Lending Office for any Advances affected by such
circumstances if the making of such designation, in the case of subsection (a)
or (b) of this Section 2.10, would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue or, in the case of
subsection (c) or (d) of this Section 2.10, would allow such Lender Party to
continue to perform its obligations to make, to participate in or renew, or to
fund or maintain, Advances and, in any such case, would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party.
(f) If (i) any of the Lenders entitled to additional
compensation under any of the foregoing provisions of this Section 2.10 shall
fail to designate a different Eurodollar Lending Office as provided in
subsection (e) of this Section 2.10 or if the circumstances entitling any of the
Lender Parties to additional compensation under subsection (a) or (b) of this
Section 2.10 shall continue to be in effect notwithstanding such designation or
since subsection (e) of this Section 2.10 is inapplicable or (ii) the inadequacy
or illegality contemplated under subsection (c) or (d) of this Section 2.10,
respectively, shall continue with respect to any of the Lenders notwithstanding
such designation, then, so long as no Default shall have occurred and be
continuing and subject to the other terms of Section 8.07(a), the Borrower may
cause such Lender Party to (and, if the Borrower so demands, such Lender Party
shall) assign all of its rights and obligations under this Agreement to one or
more other Persons in accordance with Section 8.07(a); provided that if, upon
such demand by the Borrower, such Lender Party elects to waive its request for
additional compensation pursuant to subsection (a) or (b) of this Section 2.10,
the demand by the Borrower for such Lender Party to so assign all of its rights
and obligations under this Agreement shall thereupon be deemed withdrawn.
Nothing in subsection (e) of this Section 2.10 or this Section 2.10(f) shall
affect or postpone any of the rights of any of the Lender Parties or any of the
Obligations of the Borrower under any of the foregoing provisions of this
Section 2.10 in any manner.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or setoff (except as otherwise provided in Section 2.14), not
later than 1:00 P.M. (Charlotte, North Carolina time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds, with payments received by the Administrative Agent after 1:00
P.M. Noon (Charlotte, North Carolina time) on any such day being deemed to have
been received on the next succeeding Business Day. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, Commitment Fees or any of the
other Obligations then due and payable hereunder and under the Notes to more
than one of the Lender Parties, to such Lender Parties for the accounts of their
respective Applicable Lending Offices in accordance with their respective Pro
Rata Shares
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of the amounts of such Obligations due and payable to such Lender Parties at
such time and (ii) if such payment by the Borrower is in respect of any of the
Obligations then due and payable hereunder to one Lender Party, to such Lender
Party for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(g), from and after the effective date
of such Assignment and Acceptance the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on clause (a) of the
definition of "Base Rate" set forth in Section 1.01 shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and all computations of fees and Letter of Credit commissions shall
be made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest rate,
fee or Letter of Credit commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or Commitment Fees,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next succeeding calendar month, such payment shall be made on the
immediately preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any of the
Lender Parties hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount due such Lender Party on
such date. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party, together with all accrued and unpaid interest thereon, for each day from
the date such amount is distributed to such Lender Party until the date such
Lender Party repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(e) Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient to pay
in full all amounts due and payable to the Agents and the Secured Parties under
and in respect of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and applied by the
Agents and the Secured Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents
(solely in their respective capacities as Agents) under and in respect
of this Agreement and the other Loan Documents on such date, ratably in
the respective
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aggregate amounts of all such fees, indemnification payments, costs
and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Swing Line Bank and the Issuing Bank (solely in their respective
capacities as Swing Line Bank and Issuing Bank) under and in respect of
this Agreement and the other Loan Documents on such date, ratably in
the respective aggregate amounts of all such fees, indemnification
payments, costs and expenses owing to the Swing Line Bank and the
Issuing Bank on such day;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lender
Parties under Section 8.04 hereof, Section 12 of the Subsidiaries
Guarantee, Section 25 of the Security Agreement and similar provisions
of the other Loan Documents on such date, ratably in accordance with
the respective aggregate amounts of all such indemnification payments,
costs and expenses owing to the Lender Parties on such date;
(iv) fourth, to the payment of all of the amounts that are due
and payable to the Agents and the Lender Parties under Sections 2.10
and 2.12 hereof and Section 5 of the Subsidiaries Guarantee on such
date, ratably in accordance with the respective aggregate amounts
thereof owing to the Agents and the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due and
payable to the Lenders under Section 2.08(a) on such date, ratably in
accordance with the respective aggregate Commitments of the Lenders
under the applicable Facilities on such date;
(vi) sixth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under and in respect of
this Agreement and the other Loan Documents that is due and payable to
the Administrative Agent and the Lender Parties under Section 2.07(b)
on such date, ratably in accordance with the respective aggregate
amounts of all such interest owing to the Administrative Agent and the
Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.07(a) on such date,
ratably in accordance with the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on
such date;
(viii) eighth, to the payment of the principal amount of all
of the outstanding Advances that is due and payable to the
Administrative Agent and the Lender Parties on such date, ratably in
accordance with the respective aggregate amounts of all such principal
owing to the Administrative Agent and the Lender Parties on such date;
and
(ix) ninth, to the payment of all other Obligations of the
Secured Parties owing under and in respect of this Agreement and the
other Loan Documents that are due and payable to the Administrative
Agent and the other Secured Parties on such date, ratably in accordance
with the respective aggregate amounts of all such Obligations owing to
the Administrative Agent and the other Secured Parties on such date.
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If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lender Parties in accordance with such Lender Party's Pro Rata Share of
the sum of (A) the aggregate principal amount of all Advances outstanding at
such time and (B) the aggregate Available Amount of all Letters of Credit
outstanding at such time, in repayment or prepayment of such of the outstanding
Advances or other Obligations then owing to such Lender Party and, in the case
of the Term Facilities, for application to such principal repayment installments
as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
shall be made, in accordance with Section 2.11 (or the applicable provisions of
the other Loan Documents), free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each of the Lender Parties and each of the Agents, taxes that are imposed on
its overall net income by the United States and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender Party or such Agent, as
the case may be, is organized or any political subdivision thereof, and, in the
case of each of the Lender Parties, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of either of its Applicable Lending Offices or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges and liabilities in respect of payments under or in respect of the Loan
Documents being, collectively, "Taxes"). If the Borrower shall be required under
any applicable Requirements of Law to deduct any Taxes from or in respect of any
sum payable under or in respect of this Agreement or any of the other Loan
Documents to any of the Lender Parties or any of the Agents, (i) the sum payable
by the Borrower shall be increased as may be necessary so that, after the
Borrower and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.12), such Lender Party or such Agent, 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 shall make all such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other Governmental
Authority in accordance with the applicable Requirements of Law.
(b) In addition, the Borrower hereby agrees to pay any present
or future stamp, recording, documentary, excise, property or similar taxes,
charges or levies that arise from any payment made under or in respect of this
Agreement or any of the other Loan Documents or from the execution, delivery or
registration of, any performance under, or otherwise with respect to, this
Agreement or any of the Loan Documents (collectively, "Other Taxes").
(c) The Borrower hereby agrees to indemnify each of the Lender
Parties and each of the Agents for, and hold each of them harmless against, the
full amount of Taxes and Other Taxes, and the full amount of taxes of any kind
imposed by any jurisdiction on amounts payable under this Section 2.12, imposed
on or paid by such Lender Party or such Agent, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. The indemnity by the Borrower provided for in
this Section 2.12(c) shall apply and be made whether or not the Taxes or Other
Taxes for which indemnification hereunder is sought have been correctly or
legally asserted; provided, however, that such Lender Party or such Agent
seeking such indemnification shall take all reasonable actions (consistent with
its internal policy and legal and regulatory restrictions) requested by the
Borrower to assist the Borrower in recovering the amounts paid thereby pursuant
to this Section 2.12(c) from the relevant
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taxation authority or other Governmental Authority. Amounts payable by the
Borrower under the indemnity set forth in this Section 2.12(c) shall be paid
within 30 days from the date on which the applicable Lender Party or Agent, as
the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by
or on behalf of the Borrower, the Borrower (or the Person making such payment on
behalf of the Borrower) shall furnish to the Administrative Agent, at its
address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent. In the case of any payment under or in
respect of this Agreement or any of the other Loan Documents by or on behalf of
the Borrower through an account or branch outside the United States, or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at its address referred to in Section 8.02, an opinion of counsel
reasonably acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of this Section 2.12(d) and subsection (e) of
this Section 2.12, the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each of the Lender Parties organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each of the Initial
Lenders, the Swing Line Bank and the Initial Issuing Bank, and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each of the other Lender Parties, and from time to time thereafter as
reasonably requested in writing by the Borrower or the Administrative Agent (but
only so long thereafter as such Lender Party remains lawfully able to do so),
provide each of the Borrower and the Administrative Agent with two original
Internal Revenue Service forms 1001 or 4224 or, in the case of any of the Lender
Parties that is claiming exemption from United States withholding tax under
Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments
of "portfolio interest", form W-8 (and, if such Lender Party delivers a form
W-8, a certificate representing that such Lender Party is not (i) a "bank" for
purposes of Section 881(c) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Borrower or (iii) a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue Code),
as appropriate), or any successor form, certificate or statement required by the
Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the other Loan Documents or, in the case of any of the
Lender Parties delivering a form W-8, certifying that such Lender Party is a
foreign corporation, partnership, estate or trust. If the forms referred to
above in this Section 2.12(e) that are provided by a Lender Party at the time
such Lender Party first becomes a party to this Agreement indicate a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate shall be considered excluded from Taxes
solely for the periods governed by such form. However, if, on the date of the
Assignment and Acceptance pursuant to which a Lender Party assignee becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.12 (whether in its capacity as a Lender
Party or, if applicable, a Hedge Bank) in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent (and only
to such extent), the term "Taxes" shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to such
Lender Party assignee on such
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date. None of the Lender Parties shall be entitled to payment pursuant to
subsection (a) or (c) of this Section 2.12 with respect to any additional Taxes
that resulted solely and directly from a change in either of the Applicable
Lending Offices of such Lender Party (other than any such additional Taxes that
are imposed as a result of a change in the applicable Requirements of Law, or in
the interpretation or application thereof, occurring after the date of such
change), unless such change is made pursuant to the terms of Section 2.10(e) or
subsection (g) of this Section 2.12 or otherwise as a result of a request
therefor by any of the Loan Parties.
(f) For any period with respect to which any of the Lender
Parties has failed to provide the Borrower with the appropriate form,
certificate or other document described in subsection (e) of this Section 2.12
(other than if such failure is due to a change in the applicable Requirements of
Law, or in the interpretation or application thereof, occurring after the date
on which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not
required under subsection (e) of this Section 2.12), such Lender Party shall not
be entitled to payment or indemnification under subsection (a) or (c) of this
Section 2.12 with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a Lender Party become subject to
Taxes because of its failure to deliver a form, certificate or other document
required hereunder, the Borrower shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party in recovering such Taxes.
(g) Each of the Lender Parties hereby agrees that, upon the
occurrence of any circumstances entitling such Lender Party to additional
amounts pursuant to this Section 2.12, such Lender Party shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party.
(h) If any of the Lender Parties entitled to additional
compensation under any of the foregoing provisions of this Section 2.12 shall
fail to designate a different Applicable Lending Office as provided in
subsection (g) of this Section 2.12, then, so long as no Default shall have
occurred and be continuing and subject to the other terms of Section 8.07(a),
the Borrower may cause such Lender Party to (and, if the Borrower so demands,
such Lender Party shall) assign all of its rights and obligations under this
Agreement to one or more other Persons in accordance with Section 8.07(a);
provided that if, upon such demand by the Borrower, such Lender Party elects to
waive its request for additional compensation pursuant to this Section 2.12, the
demand by the Borrower for such Lender Party to so assign all of its rights and
obligations under the Agreement shall thereupon be deemed withdrawn. Nothing in
subsection (g) of this Section 2.12 or this Section 2.12(h) shall affect or
postpone any of the rights of any of the Lender Parties or any of the
Obligations of the Borrower under any of the foregoing provisions of this
Section 2.12 in any manner.
(i) If any of the Lender Parties determines, in its sole
discretion, that it has actually and finally realized, by reason of a refund of
any Taxes paid or reimbursed by the Borrower pursuant to subsection (a), (b) or
(c) of this Section 2.12 in respect of payments under the Loan Documents, a
current monetary benefit that such Lender Party would otherwise not have
obtained and that would result in the total payments made to such Lender Party
under this Section 2.12 exceeding the amount needed to make such Lender Party
whole, such Lender Party shall pay to the Borrower, with reasonable promptness
following the date on which it actually and finally realizes such benefit (but
only so long as the making of such payment would leave such Lender Party (after
making such payment) in no worse position than it would have been
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in if the Borrower had not made the deduction or withholding that gave rise to
such refund) an amount equal to the lesser of (i) the amount of such benefit and
(ii) the amount of such excess, in each case net of all out-of-pocket expenses
incurred by or on behalf of such Lender Party in securing such refund. Nothing
contained in this Section 2.12 (A) shall interfere with the right of each of the
Lender Parties and their affiliates to arrange its tax affairs in whatever
manner it deems proper, (B) shall oblige any of the Lender Parties or any of
their affiliates to claim any tax credit or to disclose any information relating
to its tax affairs or any computations in respect thereof, (C) shall require any
of the Lender Parties to contest the imposition of any Taxes or Other Taxes,
regardless of whether such Taxes or Other Taxes were correctly or legally
asserted, or (D) shall require any of the Lender Parties or any of their
affiliates to do anything that would prejudice its ability to benefit from any
other credits, reliefs, remissions or repayments to which such Lender Party or
any of its affiliates may be entitled.
SECTION 2.13. Sharing of Payments, Etc. If any of the Lender
Parties shall obtain at any time any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) (a) on account of
Obligations due and payable to such Lender Party under or in respect of this
Agreement or any of the other Loan Documents at such time (other than pursuant
to Section 2.10, 2.12, 8.04 or 8.07) in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations due and payable to such
Lender Party at such time to (ii) the aggregate amount of the Obligations due
and payable to all of the Lender Parties at such time) of payments on account of
the Obligations due and payable to all of the Lender Parties under or in respect
of this Agreement and the other Loan Documents at such time obtained by all of
the Lender Parties at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender Party under or in respect of this Agreement or
any of the other Loan Documents at such time (other than pursuant to Section
2.10, 2.12, 8.04 or 8.07) in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing (but not due and payable)
to such Lender Party at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all of the Lender Parties under
or in respect of this Agreement and the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all of
the Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all of the Lender Parties at such time, such
Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each of the
other Lender Parties shall be rescinded and such other Lender Party shall repay
to the purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (A) the purchase price
paid to such Lender Party to (B) the aggregate purchase price paid to all of the
Lender Parties) of such recovery, together with an amount equal to such Lender
Party's ratable share (according to the proportion of (1) the amount of such
other Lender Party's required repayment to (2) the total amount so recovered
from the purchasing Lender Party) of any such interest or participating interest
or other amount paid or payable by the purchasing Lender Party in respect of the
total amount so recovered. The Borrower hereby agrees that any of the Lender
Parties so purchasing a participation from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by applicable law, exercise
all of its rights of payment (including the right of setoff) with respect to
such participation as fully as if such Lender Party were the direct creditor of
the Borrower in the amount of such participation.
SECTION 2.14. Defaulting Lenders. (a) If, at any time, (i) any
of the Lender Parties shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and
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(iii) the Borrower shall be required to make any payment hereunder or under any
of the other Loan Documents to or for the account of such Defaulting Lender,
then the Borrower may, so long as no Default shall occur or be continuing at
such time and to the fullest extent permitted by applicable law, set off and
otherwise apply the Obligation of the Borrower to make such payment to or for
the account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. If, on any date, the Borrower shall so
set off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date of such setoff and
application under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such Advance
shall be a Base Rate Advance and shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be Eurodollar
Rate Advances on the date such Advance is deemed to be made pursuant to this
Section 2.14(a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of setoff pursuant to this Section 2.14(a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this Section 2.14(a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this Section 2.14(a), shall be applied by
the Administrative Agent as specified in subsection (b) or (c) of this Section
2.14.
(b) If, at any time, (i) any of the Lender Parties shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any of the Agents or any of the Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any of the other Loan Documents to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay in full such Defaulted Amount. If the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing to the Agents and the other Lender Parties at such time, then in the
following order of priority:
(A) first, to the Agents for any Defaulted Amount then owing
to the Agents (solely in their capacities as Agents), ratably in
accordance with the respective Defaulted Amounts owing to the Agents on
such date;
(B) second, to the Swing Line Bank and the Issuing Bank for
any Defaulted Amounts then owing to the Swing Line Bank and the Issuing
Bank (solely in their respective capacities as
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Swing Line Bank and Issuing Bank), ratably in accordance with the
respective Defaulted Amounts owing to the Swing Line Bank and the
Issuing Bank on such date; and
(C) third, to any of the other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts owing to such other
Lender Parties on such date.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this Section 2.14(b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) If, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any of
the other Lender Parties shall be required to pay or distribute any amount
hereunder or under any of the other Loan Documents to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this Section 2.14(c) shall be deposited by the Administrative Agent
in an account with NationsBank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this Section 2.14(c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
NationsBank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the terms of, this Section 2.14(c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent, any of the other Agents or any of the
other Lender Parties, as and when such Advances or amounts are required to be
made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and all such amounts required to
be made or paid to the Agents and the other Lender Parties at such time, then in
the following order of priority:
(A) first, to the Agents for any amounts then due and payable
by such Defaulting Lender to the Agents (solely in their capacities as
Agents) hereunder and under the other Loan Documents, ratably in
accordance with such respective amounts due and payable to the Agents
on such date;
(B) second, to the Swing Line Bank and the Issuing Bank for
any amounts then due and payable by such Defaulting Lender to the Swing
Line Bank and the Issuing Bank (solely in their respective capacities
as Swing Line Bank and Issuing Bank) hereunder and under the other Loan
Documents, ratably in accordance with such respective amounts due and
payable to the Swing Line Bank and the Issuing Bank on such date;
(C) third, to any of the other Lender Parties for any amount
then due and payable by such Defaulting Lender to such other Lender
Parties hereunder and under the other Loan Documents, ratably in
accordance with such respective amounts due and payable to such other
Lender Parties on such date; and
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(D) fourth, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to one or more of the
Commitments of such Defaulting Lender.
If any of the Lender Parties that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender Party shall be distributed by
the Administrative Agent to such Lender Party and applied by such Lender Party
to the Obligations owing to such Lender Party at such time under or in respect
of this Agreement and the other Loan Documents, ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.14 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any of the other Lender Parties may have
against such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
shall be available, and the Borrower hereby agrees that it shall use such
proceeds, solely to finance in part the Recapitalization, to pay certain fees
and expenses incurred in connection with the consummation of the Transaction and
to provide working capital to, and for other general corporate purposes of, the
Borrower and its Subsidiaries not otherwise prohibited under the terms of the
Loan Documents. The Letters of Credit shall be issued, and the Borrower hereby
agrees that it shall request the issuance of Letters of Credit, solely in
support of the Obligations of the Borrower or any of the Restricted Subsidiaries
not otherwise prohibited under the Loan Documents to a Person other than the
Secured Parties which has supplied inventory to, or extended credit or secured
an Obligation on behalf of, the Borrower or any of the Restricted Subsidiaries.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCE OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each of the Existing Lenders to have made an Advance
or of the Issuing Bank to have issued a Letter of Credit on the occasion of the
Initial Extension of Credit was subject to the satisfaction of all of the
following conditions precedent prior to or concurrently with the Initial
Extension of Credit:
(a) The Existing Lenders shall have been reasonably satisfied
with the organizational and legal structure and capitalization of the
Borrower (including, without limitation, the terms and conditions of
the Constitutive Documents of and each class of Equity Interests in the
Borrower and of each agreement or instrument relating to such structure
or capitalization). The Borrower did not have, and has not had since it
became an "S Corporation" in April 1982, any Subsidiaries other than DW
(which was disposed of in the Pre-Closing Reorganization).
(b) The Pre-Closing Reorganization shall have been consummated
prior to the Closing Date strictly in accordance with the terms and
conditions of the Recapitalization Agreement and the Reorganization
Agreement, without any waiver of or amendment to any of the provisions
set forth therein not consented to by the Existing Lenders and in
compliance with all applicable Requirements
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of Law. All of the liabilities and Obligations of the Borrower arising
out of or relating to the Metals Business shall have been assumed by
the Sellers or, if not so assumed, the Borrower shall have been fully
and unconditionally indemnified therefor in a manner reasonably
satisfactory to the Existing Lenders. The Recapitalization shall have
been consummated prior to or concurrently with the Initial Extension of
Credit strictly in accordance with the terms and conditions of the
Recapitalization Agreement, without any waiver of or amendment to any
of the provisions set forth therein not consented to by the Existing
Lenders and in compliance with all applicable Requirements of Law. All
of the Related Documents shall have been in full force and effect in
the form received by the Existing Lenders on or prior to the Closing
Date.
(c) All of the Governmental Authorizations, and all of the
consents, approvals and authorizations of, notices and filings to or
with, and other actions by, any other Person necessary in connection
with any aspect of the Transaction, any of the Loan Documents or the
Related Documents or any of the other transactions contemplated thereby
shall have been obtained (without the imposition of any conditions that
are not reasonably acceptable to the Existing Lenders) and shall remain
in full force and effect; all applicable waiting periods shall have
expired without any action being taken by any competent authority; and
no Requirements of Law shall have been applicable in the reasonable
judgment of the Existing Lenders that would restrain, prevent or impose
materially adverse conditions upon any aspect of the Transaction, any
of the Loan Documents or the Related Documents or any of the other
transactions contemplated thereby or the rights of the Borrower freely
to transfer or otherwise dispose of, or to create any Lien on, any
property or assets now or hereafter acquired by any of them.
(d) Before giving effect and immediately after giving pro
forma effect to the Transaction, no Material Adverse Change shall have
occurred since August 31, 1998. The Pre- Commitment Information,
considered as a whole, shall have been complete and correct in all
material respects; and no events, developments or changes shall have
occurred, and no additional information shall have come to the
attention of the Agents or the Existing Lenders, that was inconsistent
with the Pre-Commitment Information and that, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(e) No action, suit, litigation, arbitration or proceeding
shall have been pending or, to the best knowledge of the Borrower,
shall have been threatened (and, to the best knowledge of the Borrower,
no investigation shall have been pending or threatened) against or
affecting the Borrower or any of its property or assets in any court or
before any arbitrator or by or before any Governmental Authority of any
kind that (i) either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect other than the matters
described on Schedule 3.01(e) to the Existing Credit Agreement or (ii)
could reasonably be expected to adversely affect the legality,
validity, binding effect or enforceability of any aspect of the
Transaction, any of the Loan Documents or the Related Documents or any
of the other transactions contemplated thereby; and there shall have
been no adverse change in the status, or the reasonably anticipated
financial effect on the Borrower, of such action, suit, litigation,
arbitration or proceeding from that described on Schedule 3.01(e) to
the Existing Credit Agreement.
(f) All of the Indebtedness of the Borrower in existence on
the Closing Date other than the Indebtedness described on Schedule
3.01(f) hereto (the "Surviving Indebtedness") shall have been prepaid,
redeemed or defeased in full or otherwise satisfied and extinguished,
and all
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commitments therefor shall have been terminated; and all of the
Surviving Indebtedness shall have been on terms and conditions
reasonably satisfactory to the Existing Lenders.
(g) The Borrower shall have been the legal and beneficial
owner of the Collateral purported to be owned thereby under the
Collateral Documents, free and clear of all Liens, except for the liens
and security interests created or expressly permitted under the terms
of the Loan Documents. The Collateral Documents shall have created
valid and perfected first priority liens on and security interests in
the Collateral (subject to the liens and security interests expressly
permitted under Section 5.02(a)) in favor of the Administrative Agent,
for the benefit of the Secured Parties, securing the payment of the
Secured Obligations. All filings, searches and other actions
(including, without limitation, the payment of all filing and recording
fees and taxes) necessary to perfect and protect the first priority
liens and security interests of the Administrative Agent in the
Collateral shall have been duly made or taken and shall be in full
force and effect or the Existing Lenders shall have been reasonably
satisfied that all such filings, searches and other actions were to
have been made or taken promptly following the Closing Date.
(h) (i) Holdings LLC shall have directly purchased from the
Sellers at least 42% of the UIC Class A Common Stock and 42% of the UIC
Class B Common Stock for a purchase price of not more than $260,380,000
in cash and (ii) the Sellers shall have retained equity in the Borrower
in an amount of at least $16,620,000. The Borrower shall have received
at least $150,000,000 in gross proceeds from the sale and issuance of
the Senior Subordinated Notes which shall have been used to finance in
part the consummation of the Recapitalization and to pay fees and
expenses incurred in connection with the consummation of the
Transaction. Upon consummation of the Recapitalization, Holdings LLC
shall have owned 91.94% of the outstanding UIC Class A Common Stock and
91.94% of outstanding UIC Class B Common Stock, and the Sellers shall
have retained 6% of the outstanding UIC Class A Common Stock and 6% of
outstanding UIC Class B Common Stock. All of the Senior Subordinated
Notes Documents and the Permitted Preferred Stock Documents, if any,
shall have been in form and substance reasonably satisfactory to the
Existing Lenders.
(i) The representations and warranties contained in each of
the Loan Documents shall have been correct in all material respects on
and as of the Closing Date, before and after giving effect to the
Initial Extension of Credit and to the application of proceeds
therefrom, as though made on and as of such date (other than any such
representation and warranty that, by its terms, referred to a specific
date other than the Closing Date, in which case, as of such specific
date). No event shall have occurred and be continuing, or shall have
occurred as a result of the Initial Extension of Credit or the
application of proceeds therefrom, that would constitute a Default.
(j) All of the reasonable and documented fees and expenses of
the Agents and the Lender Parties (including, without limitation, all
of the reasonable fees and expenses of counsel for the Agents and local
counsel for the Lender Parties) shall have been paid in full.
(k) The Administrative Agent shall have received on or before
the Closing Date the following, each dated such date (unless otherwise
specified), in form and substance satisfactory to the Existing Lenders
(unless otherwise specified) and (except for the notes referred to in
clause (i) of this Section 3.01(k)) in sufficient copies for each of
the Existing Lenders:
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(i) The Term A Notes, payable to the order of the
Term A Lenders, the Term B Notes, payable to the order of the
Term B Lenders, and the Revolving Credit Notes, payable to the
order of the Revolving Credit Lenders (each as defined in the
Existing Credit Agreement), respectively.
(ii) Certified copies of the resolutions of the board
of directors (or the persons performing similar functions) of
each of Holdings LLC and the Borrower, approving each of the
Loan Documents and the Related Documents to which it is or is
to be a party, the consummation of each aspect of the
Transaction involving or affecting Holdings LLC or the
Borrower and the other transactions contemplated by any of the
foregoing, and of all documents evidencing necessary
Governmental Authorizations, or other necessary consents,
approvals, authorizations, notices, filings or actions, of or
to any Person with respect to any of the Loan Documents or the
Related Documents to which it is or is to be a party, the
consummation of any aspect of the Transaction involving or
affecting Holdings LLC or the Borrower or any of the other
transactions contemplated by any of the foregoing.
(iii) A copy of the certificate of incorporation (or
similar Constitutive Document) of each of Holdings LLC and the
Borrower, and each amendment thereto, certified (as of a date
reasonably near the Closing Date) as being a true and complete
copy thereof by the Secretary of State of the State of
Delaware.
(iv) Copies of certificates of the Secretary of State
of the State of Delaware, listing the certificate of
incorporation (or similar Constitutive Document) of Holdings
LLC and the Borrower, respectively, and each amendment thereto
on file in the office of such Secretary of State, and
certifying (A) that such amendments are the only amendments to
Holdings LLC's or the Borrower's certificate of incorporation
(or similar Constitutive Document), as the case may be, on
file in its office, (B) that Holdings LLC or the Borrower has
paid all franchise taxes (or the equivalent thereof) to the
date of such certificate and (C) that Holdings LLC or the
Borrower is duly organized and is in good standing under the
laws of the State of Delaware.
(v) Copies of the certificates of the Secretary of
State (or the equivalent Governmental Authority) of each
jurisdiction in which each of Holdings LLC and the Borrower is
qualified or licensed as a foreign corporation or limited
liability company, except where the failure to so qualify or
be licensed, either individually or in the aggregate, could
not reasonably have been expected to have a Material Adverse
Effect, dated reasonably near the Closing Date and stating
that Holdings LLC or the Borrower, as the case may be, was
duly qualified and in good standing as a foreign corporation
or limited liability company, as applicable, and had filed all
annual reports required to be filed, and had paid all
franchise taxes (or the equivalent thereof) required to be
paid, in such jurisdiction to the date of such certificate.
(vi) A certificate of the Borrower, signed on behalf
of the Borrower by its President or a Vice President or its
Secretary or an Assistant Secretary (or the persons performing
similar functions), dated the Closing Date (the statements
made in which certificate shall have been true on and as of
the Closing Date), certifying as to:
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(A) the absence of any amendments to the
certificate of incorporation of the Borrower since
the date of the Secretary of State's certificate
referred to in clause (iv) of this Section 3.01(k),
or any steps taken by the board of directors (or the
persons performing similar functions) or the
stockholders of the Borrower to effect or authorize
any further amendment, supplement or other
modification thereto;
(B) the accuracy and completeness of the
bylaws of the Borrower as in effect on the date on
which the resolutions of the board of directors (or
the persons performing similar functions) of the
Borrower referred to in clause (ii) of this Section
3.01(k) were adopted and on the Closing Date (a copy
of which shall be attached to such certificate);
(C) the absence of any proceedings (either
pending or contemplated) for the dissolution,
liquidation or other termination of the existence of
the Borrower;
(D) since June 30, 1998, the absence of any
change in the jurisdiction of organization of the
Borrower, any merger, consolidation or other similar
transaction directly or indirectly involving the
Borrower or any issuance or sale of any Equity
Interests in the Borrower, except for the issuance of
the UIC Class A Common Stock and UIC Class B Common
Stock to Holdings LLC as part of the
Recapitalization;
(E) the accuracy in all material respects of
the representations and warranties made (or deemed to
have been made) by the Borrower in the Loan Documents
to which it is or is to be a party as though made on
and as of the Closing Date, before and after giving
effect to the Initial Extension of Credit and to the
application of proceeds therefrom (other than any
such representation and warranty that, by its terms,
refers to a specific date other than the Closing
Date, in which case, as of such specific date);
(F) the absence of any event occurring and
continuing, or resulting from the Initial Extension
of Credit or the application of proceeds therefrom,
that would constitute a Default; and
(G) the satisfaction of the conditions
precedent set forth in subsections (a), (b), (c),
(d), (e), (f), (g), (h) and (j) of this Section 3.01.
(vii) A certificate of Holdings LLC, signed on behalf
of Holdings LLC by its President or a Vice President or its
Secretary or an Assistant Secretary (or the persons performing
similar functions), dated the Closing Date (the statements
made in which certificate shall have been true on and as of
the Closing Date), certifying as to the accuracy and
completeness of the limited liability company agreement (or
similar Constitutive Document) of Holdings LLC as in effect on
the date on which the resolutions of the board of directors
(or persons performing similar functions) of Holdings LLC
referred to in clause
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(ii) of this Section 3.01(k) were adopted and on the Closing
Date (a copy of which shall have been attached to such
certificate).
(viii) A certificate of the Secretary or an Assistant
Secretary (or a person performing similar functions) of the
Borrower certifying as to the names and true signatures of the
officers of the Borrower authorized to sign each of the Loan
Documents and the Related Documents to which it is or is to be
a party and the other agreements, instruments and documents to
be delivered hereunder and thereunder.
(ix) A security agreement duly executed by the
Borrower, together with:
(A) certificates representing the Initial
Pledged Interests referred to therein, accompanied by
undated stock powers or other appropriate powers,
duly executed in blank, and instruments evidencing
the Initial Pledged Indebtedness referred to therein,
duly endorsed in blank;
(B) proper termination statements (Form
UCC-3 or a comparable form) or the equivalent thereof
under the Uniform Commercial Code (or any similar
Requirements of Law) of all jurisdictions that may
have been necessary or that the Administrative Agent
may have deemed reasonably desirable in order to
terminate or amend existing liens on and security
interests in the Collateral, in each case completed
in a manner satisfactory to the Existing Lenders and
duly executed by the appropriate secured party;
(C) proper financing statements (Form UCC-1
or a comparable form) or the equivalent thereof under
the Uniform Commercial Code (or any similar
Requirements of Law) of all jurisdictions that may
have been necessary or the Administrative Agent may
have deemed reasonably desirable in order to perfect
and protect the liens and security interests created
or purported to be created under such security
agreement, covering the Collateral described therein,
in each case completed in a manner reasonably
satisfactory to the Existing Lenders and duly
executed by the Borrower;
(D) completed requests for information,
dated reasonably near the Closing Date, listing the
financing statements referred to in subclause (ix)(C)
of this Section 3.01(k) and all other effective
financing statements filed in the jurisdictions
referred to in subclause (ix)(C) of this Section
3.01(k) that named the Borrower as debtor, together
with copies of such other financing statements;
(E) IP Security Agreements--Short Form,
covering all of the Copyrights, if any, Patents and
Trademarks of the Borrower, in each case completed in
a manner satisfactory to the Existing Lenders and
duly executed by the Borrower;
(F) copies of the Assigned Agreements (as
defined in such security agreement), in each case
together with (1) a consent, in form and substance
reasonably satisfactory to the Existing Lenders, to
the assignment of such Assigned Agreement and the
rights and interest of the Borrower thereunder to the
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Administrative Agent pursuant to such security
agreement, duly executed by each party to such
Assigned Agreement other than the Borrower, and (2)
notice from the Borrower to each of the other Persons
party to such Assigned Agreement other than the
Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, of the
assignment of such Assigned Agreement and the rights
and interest of the Borrower thereunder to the
Administrative Agent pursuant to such security
agreement, duly executed by the Borrower; and
(G) evidence that all of the other actions
(including, without limitation, the completion of all
of the other recordings and filings of or with
respect to such security agreement) that may have
been necessary or that the Administrative Agent may
have deemed reasonably desirable in order to perfect
and protect the liens and security interests created
under such security agreement had been taken or would
be taken in accordance with the terms of the Loan
Documents.
(x) A letter from Valuation Research Corporation and
a certificate of the Borrower, duly executed by the chief
financial officer thereof, in each case attesting to the
Solvency of the Borrower, immediately before and immediately
after giving pro forma effect to the Transaction and the other
transactions contemplated by the Loan Documents and the
Related Documents.
(xi) Copies, certified by a Responsible Officer of
the Borrower, of all of the Related Documents and the Senior
Subordinated Notes Documents, duly executed by each of the
parties thereto, together with all agreements, instruments,
opinions and other documents delivered in connection
therewith.
(xii) Copies, certified by a Responsible Officer of
the Borrower, of all of the agreements, instruments and other
documents evidencing or setting forth the terms and conditions
of each item of the Surviving Indebtedness that was
outstanding or had commitments for the extension of credit on
the Closing Date.
(xiii) Such financial, business and other information
regarding the Borrower as the Existing Lenders shall have
requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental
matters, obligations under Plans, Multiemployer Plans and
Welfare Plans, collective bargaining agreements and other
arrangements with employees, and copies, certified by a
Responsible Officer of the Borrower, of (A) the audited
financial statements of the Borrower for the Fiscal Years
ended December 31, 1995, December 31, 1996 and December 31,
1997 and for the eight-month period ended August 31, 1998, (B)
the unaudited financial statements of the Borrower for the
eleven-month period ended November 30, 1998, (C) the pro forma
statements of income of the Borrower for the Fiscal Years
ended December 31, 1995, December 31, 1996 and December 31,
1997 and for the eight-month period ended August 31, 1998, in
each case after giving effect to the Pre-Closing
Reorganization, and (D) forecasts prepared by management of
the Borrower, in form and substance reasonably satisfactory to
the Lender Parties, of balance sheets and statements of
income, stockholders' equity and cash flow of the Borrower on
a quarterly basis for the Fiscal Year in which the Closing
Date occurred and on an annual basis for each Fiscal Year
thereafter through December 31, 2003.
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(xiv) One or more Phase I environmental assessment
reports, in form and substance reasonably satisfactory to the
Existing Lenders, from environmental consulting firms
reasonably acceptable to the Administrative Agent, for the
manufacturing and distribution facilities of the Borrower
located at (A) 8464/8494 Chapin Industrial Drive, St. Louis,
Missouri, 377 Amelia Street, Plymouth, Michigan, (B) 8825 Page
Avenue, St. Louis, Missouri, (C) 8530 Page Avenue, St. Louis,
Missouri, (D) 2129 Chapin Industrial Drive, St. Louis,
Missouri, (E) 1242 West Ridge Road, Gainesville, Georgia, (F)
7346 Penn Drive, Allentown, Pennsylvania, (G) 4142 Rider Trail
North, Earth City, Missouri and (H) 15205 East Stafford
Street, City of Industry, California, in each case assessing
any hazards, costs or liabilities under Environmental Laws to
which the Borrower may be subject, the amount and nature of
which and the Borrower's plans with respect to which shall
have been reasonably acceptable to the Existing Lenders,
together with evidence, in form and substance reasonably
satisfactory to the Existing Lenders, that all applicable
Environmental Laws shall have been complied with.
(xv) A consent and agreement executed by the lessor
of each leasehold on which Collateral was located (other than
the leasehold located at 377 Amelia Street, Plymouth,
Michigan) that is reasonably requested by the Existing
Lenders, in each case which provides, among other things, that
such lessor waives any lien or security interest it may now
have or hereafter acquire on the Collateral located on the
premises thereof and that the Administrative Agent has the
right to receive notice of any default by the Borrower under
the lease and to repossess the Collateral located thereon upon
the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(f) or an Event of Default, and such
other rights as may have been reasonably requested by the
Existing Lenders in any such consent and agreement.
(xvi) A letter, in form and substance reasonably
satisfactory to the Administrative Agent, from the Borrower to
Rubin, Brown, Gornstein and Co. LLP, its independent public
accountants, advising such accountants that the Administrative
Agent, on behalf of the Lender Parties, has been authorized to
exercise from time to time all rights of the Borrower to
require such accountants to disclose any and all financial
statements and any other information relating to the financial
condition, operations or performance of the Borrower or any of
its Subsidiaries that they may have and directing such
accountants to comply with any reasonable request of the
Administrative Agent for such information.
(xvii) Evidence of all of the insurance of the
Borrower required to be maintained thereby under Section
5.01(d).
(xviii) Certified copies of each of the employment
and other compensation agreements with each senior executive
officer of the Borrower in effect on the Closing Date.
(xix) One or more duly completed and executed Notices
of Borrowing for each Borrowing made on the Closing Date and
one or more duly completed and executed Notices of Issuance
for each Letter of Credit issued on the Closing Date.
(xx) A favorable opinion of Kirkland & Ellis, special
counsel to the Loan Parties.
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(xxi) Favorable opinions of Simpson, Thacher &
Bartlett, special counsel to the Sellers, and Mark R. Gale,
Esq., counsel for the Seller, delivered in connection with the
consummation of the Recapitalization.
(xxii) A favorable opinion of Blackwell Sanders Peper
Martin LLP, special Missouri counsel for the Lender Parties.
SECTION 3.02. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective on and as of the first date
(the "Effective Date") on which all of the following conditions precedent shall
have been satisfied:
(a) Before giving effect and immediately after giving pro
forma effect to the Transaction, no Material Adverse Change shall have
occurred since August 31, 1998.
(b) There shall exist no action, suit, litigation, arbitration
or proceeding pending or, to the best knowledge of the Borrower,
threatened (and, to the best knowledge of the Borrower, there shall
exist no investigation pending or threatened) against or affecting the
Borrower or any of its property or assets in any court or before any
arbitrator or by or before any Governmental Authority of any kind that
(i) either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect other than the matters
described on Schedule 3.02(b) hereto (the "Disclosed Litigation") or
(ii) could reasonably be expected to adversely affect the legality,
validity, binding effect or enforceability of any aspect of the
Transaction, any of the Loan Documents or the Related Documents or any
of the other transactions contemplated thereby; and there shall have
been no adverse change in the status, or the reasonably anticipated
financial effect on the Borrower, of the Disclosed Litigation from that
described on Schedule 3.02(b) hereto.
(c) The representations and warranties contained in each of
the Loan Documents shall be correct in all material respects on and as
of the Effective Date, as though made on and as of such date (except
for any such representation and warranty that, by its terms, refers to
a specific date other than the Effective Date, in which case as of such
specific date). No event shall have occurred and be continuing, or
shall occur as a result of the Effective Date, therefrom, that
constitutes a Default.
(d) All amounts due and payable to the Agents and the Existing
Lenders under and in respect of the Existing Credit Agreement and each
of the other "Loan Documents" (as defined in the Existing Credit
Agreement) on or prior to the Effective Date shall have been paid in
full. All of the reasonable and documented fees and expenses of the
Agents and the Lender Parties (including, without limitation, all of
the reasonable fees and expenses of counsel for the Agents and local
counsel for the Lender Parties) shall have been paid in full.
(e) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such date (unless
otherwise specified), in form and substance reasonably satisfactory to
the Lender Parties and (except for the Notes) in sufficient copies for
each of the Lender Parties:
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(i) The Term A Notes, payable to the order of the
Term A Lenders, the Term B Notes, payable to the order of the
Term B Lenders, and the Revolving Credit Notes, payable to the
order of the Revolving Credit Lenders, respectively.
(ii) An amended and restated security agreement, in
substantially the form of Exhibit D hereto (together with each
Security Agreement Supplement, as amended, supplemented or
otherwise modified hereafter from time to time in accordance
with the terms thereof and Section 8.01, the "Security
Agreement"), duly executed by the Borrower, together with:
(A) copies of the Assigned Agreements
referred to in the Security Agreement, in each case
together with (1) a consent, in form and substance
reasonably satisfactory to the Lender Parties, to the
assignment of such Assigned Agreement and the rights
and interest of the Borrower thereunder to the
Administrative Agent pursuant to the Security
Agreement, duly executed by each party to such
Assigned Agreement other than the Borrower, and (2)
notice from the Borrower to each of the other Persons
party to such Assigned Agreement other than the
Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, of the
assignment of such Assigned Agreement and the rights
and interest of the Borrower thereunder to the
Administrative Agent pursuant to the Security
Agreement, duly executed by the Borrower; and
(B) evidence that all of the other actions
(including, without limitation, the completion of all
of the other recordings and filings of or with
respect to the Security Agreement) that may be
necessary or that the Administrative Agent may deem
reasonably desirable in order to perfect and protect
the liens and security interests created under the
Security Agreement have been taken.
(iii) A negative pledge agreement, in substantially
the form of Exhibit E hereto (as amended, supplemented or
otherwise modified hereafter from time to time in accordance
with the terms thereof and Section 8.01, the "Holdings LLC
Agreement"), duly executed by Holdings LLC.
(iv) A letter from Valuation Research Corporation, in
substantially the form of Exhibit F-1 hereto, and a
certificate of the Borrower, in substantially the form of
Exhibit F-2 hereto, duly executed by the chief financial
officer thereof, in each case attesting to the Solvency of the
Borrower, immediately before and immediately after giving pro
forma effect to the Transaction and the other transactions
contemplated by the Loan Documents and the Related Documents.
(v) Copies, certified by a Responsible Officer of the
Borrower, of (A) the Preliminary Offering Memorandum and, if
completed, the Final Offering Memorandum and the indenture for
the permanent Senior Subordinated Notes and (B) all
amendments, supplements, modifications, refinancings,
restatements or replacements of the Related Documents and the
Senior Subordinated Notes Documents, duly executed by each of
the parties thereto, together with all agreements,
instruments, opinions and other documents delivered or to be
delivered in connection therewith.
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(vi) Copies, certified by a Responsible Officer of
the Borrower, of the audited financial statements of the
Borrower for the Fiscal Year ended December 31, 1998.
(vii) A letter, in form and substance reasonably
satisfactory to the Administrative Agent, from the Borrower to
PriceWaterhouseCoopers LLP, its independent public
accountants, advising such accountants that the Administrative
Agent, on behalf of the Lender Parties, has been authorized to
exercise from time to time all rights of the Borrower to
require such accountants to disclose any and all financial
statements and any other information relating to the financial
condition, operations or performance of the Borrower or any of
its Subsidiaries that they may have and directing such
accountants to comply with any reasonable request of the
Administrative Agent for such information.
(viii) One or more duly completed and executed
Notices of Borrowing for each Borrowing to be made on the
Effective Date and one or more duly completed and executed
Notices of Issuance for each Letter of Credit to be issued on
the Effective Date.
(ix) A favorable opinion of Kirkland & Ellis, special
counsel to the Loan Parties, in substantially the form of
Exhibit G-1 hereto, and addressing such other matters as any
of the Lender Parties through the Administrative Agent may
reasonably request.
(x) A favorable opinion of Blackwell Sanders Peper
Martin LLP, special Missouri counsel for the Lender Parties,
in substantially the form of Exhibit G-2 hereto, and
addressing such other matters as any of the Lender Parties
through the Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance
and Renewal. The obligation of each of the Appropriate Lenders to make an
Advance (other than a Swing Line Advance made by any of the Revolving Credit
Lenders pursuant to Section 2.02(b)(ii) or a Letter of Credit Advance made by
the Issuing Bank or any of the Revolving Credit Lenders pursuant to Section
2.03(c)(i)) on the occasion of each Borrowing (including the initial
Borrowings), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance thereof) or to renew a Letter of Credit, shall
be subject to the further conditions precedent that on the date of such
Borrowing, issuance or renewal (a) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing, Notice of Issuance or
Notice of Renewal by the Borrower and the acceptance by the Borrower of the
proceeds of such Borrowing or of such Letter of Credit or the renewal of such
Letter of Credit, as the case may be, shall constitute a representation and
warranty by the Borrower that, both on the date of such notice and on the date
of such Borrowing, issuance or renewal, such statements are true):
(i) the representations and warranties contained in each of
the Loan Documents are correct in all material respects on and as of
such date, before and after giving effect to such Borrowing, issuance
or renewal and to the application of the proceeds, if any, therefrom,
as though made on and as of such date (except (A) for any such
representation and warranty that, by its terms, refers to a specific
date other than the date of such Borrowing, issuance or renewal, in
which case as of such specific date, and (B) that the financial
statements of the Borrower referred to in Sections 4.01(f) and 4.01(g)
shall be deemed at any time and from time to time after the Effective
Date to refer to the Consolidated financial statements of the Borrower
and its Subsidiaries comprising part of the Required Financial
Information most recently delivered to the Administrative Agent and the
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Lender Parties pursuant to Sections 5.03(c) and 5.03(d), respectively,
on or prior to the date of such Borrowing, issuance or renewal); and
(ii) no event has occurred and is continuing, or would result
from such Borrowing, issuance or renewal, or from the application of
the proceeds, if any, therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
authorizations, opinions, documents and information as any of the Lenders (or,
in the case of the issuance or renewal of a Letter of Credit, the Issuing Bank)
through the Administrative Agent may reasonably request.
SECTION 3.04. Determinations Under Section 3.02. For purposes
of determining compliance with the conditions specified in Section 3.02, each of
the Lender Parties shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by, or acceptable or satisfactory to, the Lender
Parties unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Lender Party prior to the Effective Date specifying its objection thereto
and, in the case of any Lender, such Lender shall not have made available to the
Administrative Agent on the Effective Date such Lender Party's cash
consideration for its purchase of a portion of the Existing Advances or, if
applicable, its Pro Rata Share of any Borrowing to be made on such date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower
hereby represents and warrants as follows:
(a) Each of the Loan Parties and each of their Subsidiaries
(i) are corporations, limited partnerships or limited liability
companies duly organized and validly existing under the laws of the
jurisdictions of their respective organization and are in good standing
under the laws of such jurisdiction and (ii) are duly qualified as
foreign corporations, limited partnerships or limited liability
companies and are in good standing in each other jurisdiction in which
the ownership, lease or operation of their respective property and
assets or the conduct of their respective businesses require them to so
qualify or be licensed, except, solely in the case of this clause (ii),
where the failure to so qualify or be licensed or to be in good
standing, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. Each of the Loan Parties
and each of their Subsidiaries have all of the requisite power and
authority, and the legal right, to own or lease and to operate all of
the property and assets they purport to own, lease or operate and to
conduct all of their respective businesses as now conducted and as
proposed to be conducted. Each of the Loan Parties has all of the
requisite power and authority, and the legal right, to execute and
deliver each of the Loan Documents and the Related Documents to which
it is or is to be a party, to perform all of its Obligations hereunder
and thereunder and to consummate the Transaction and all of the other
transactions contemplated hereby and thereby.
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(b) Set forth on Part A of Schedule 4.01(b) hereto is a
complete and accurate list of all of the Subsidiaries of the Borrower
as of the date of this Agreement showing, as to each such Subsidiary,
the correct legal name thereof, the legal structure thereof, the
jurisdiction of its organization, the number and type of each class of
its Equity Interests authorized and the number outstanding, and the
percentage of each such class of its Equity Interests outstanding on
such date that are owned by any of the Loan Parties. All of the
outstanding Equity Interests in each of the Subsidiaries of the
Borrower are owned directly or indirectly by one or more of the Loan
Parties, free and clear of all Liens (including, without limitation,
preemptive or other similar rights of the holders thereof), except
those created under the Collateral Documents. All of the outstanding
Equity Interests in the Borrower and each of its Subsidiaries have been
validly issued and are fully paid and nonassessable. As of the date of
this Agreement, all of the outstanding Equity Interests in the Borrower
are owned by Holdings LLC and the Sellers in the type and amounts
disclosed opposite the names of Holdings LLC and the respective Sellers
on Part B of Schedule 4.01(b) hereto.
(c) The execution, delivery and performance by each of the
Loan Parties of each of the Loan Documents and the Related Documents to
which it is or is to be a party, and the consummation of the
Transaction and the other transactions contemplated hereby and thereby,
have been duly authorized by all necessary action (including, without
limitation, all necessary shareholder, partner, member or other similar
action) and do not:
(i) contravene the Constitutive Documents of such
Loan Party;
(ii) violate any Requirement of Law;
(iii) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture,
mortgage, deed of trust, lease, instrument, contract or other
agreement binding on or affecting such Loan Party or any of
its Subsidiaries or any of their respective property or
assets; or
(iv) except for the Liens created under the
Collateral Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the
property or assets of such Loan Party or any of its
Subsidiaries.
Neither any of the Loan Parties nor any of their respective
Subsidiaries is in violation of any Requirements of Law or in breach of
any loan agreement, indenture, mortgage, deed of trust, lease,
instrument, contract or other agreement referred to in the immediately
preceding sentence, the violation or breach of which, either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(d) Each of the Loan Parties and each of their Subsidiaries
own or possess all of the Governmental Authorizations that are
necessary to own or lease and operate their respective property and
assets and to conduct their respective businesses as now conducted and
as proposed to be conducted, except where and to the extent that the
failure to obtain or maintain in effect any such Governmental
Authorization, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Neither any
of the Loan Parties nor any of their Subsidiaries has received any
notice relating to or threatening the revocation, termination,
cancellation, denial, impairment or modification of any such
Governmental Authorization, or is in
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violation or contravention of, or in default under, any such
Governmental Authorization. No Governmental Authorization and no
consent, approval or authorization of, or notice to or filing with, or
other action by, any other Person is required for:
(i) the due execution, delivery, recordation, filing
or performance by any of the Loan Parties of any of the Loan
Documents or the Related Documents to which it is or is to be
a party, or for the consummation of any aspect of the
Transaction or the other transactions contemplated hereby or
thereby;
(ii) the grant by any of the Loan Parties of the
Liens granted by it pursuant to the Collateral Documents;
(iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first
priority nature thereof); or
(iv) the exercise by any of the Agents or any of the
Lender Parties of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the
Collateral Documents,
except for the Governmental Authorizations, and the consents,
approvals, authorizations, notices, filings and other actions,
described on Schedule 4.01(d) hereto. Except as described on Schedule
4.01(d) hereto, all of the Governmental Authorizations and the
consents, approvals, authorizations, notices, filings and other actions
described on Schedule 4.01(d) hereto have been duly obtained, taken,
given or made and are in full force and effect. All applicable waiting
periods in connection with each aspect of the Transaction and the other
transactions contemplated hereby and thereby have expired without any
action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon any aspect of
the Transaction or the rights of any of the Loan Parties or any of
their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any property or assets now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each of the Notes and each of
the other Loan Documents when delivered hereunder will have been, duly
executed and delivered by each of the Loan Parties intended to be a
party thereto. This Agreement is, and each of the Notes and each of the
other Loan Documents when delivered hereunder will be, the legal, valid
and binding obligations of each of the Loan Parties intended to be a
party thereto, enforceable against such Loan Party in accordance with
their respective terms, except to the extent such enforceability may be
limited by the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of
equity.
(f) The balance sheets of the Borrower as of December 31,
1995, December 31, 1996, December 31, 1997 and December 31, 1998, and
the related statements of income, stockholders' equity and cash flow of
the Borrower for the Fiscal Years then ended, and the balance sheet of
the Borrower as of August 31, 1998, and the related statements of
income, stockholders' equity and cash flow of the Borrower for the
eight-month period then ended, in each case including the schedules and
notes thereto and accompanied by an opinion of Rubin, Brown, Gornstein
and Co. LLP or, in the case of such financial statements of the
Borrower for the Fiscal Year ended December 31, 1998,
PriceWaterhouseCoopers LLP, the independent public accountants of the
Borrower, copies of all
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of which have been furnished to the Lender Parties, fairly present in
all material respects (subject, solely in the case of such financial
statements of the Borrower as of and for the eight-month period ended
August 31, 1998, to normal year-end audit adjustments) the financial
condition of the Borrower as at such dates and the results of
operations and cash flow of the Borrower for the respective periods
ended on such dates. All of the financial statements referred to above
in this Section 4.01(f), including the schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the respective periods covered thereby. The Borrower does
not have any material indebtedness or other material fixed or
contingent liabilities, material liabilities for taxes, unusual forward
or long-term material commitments or anticipated material losses from
any unfavorable commitments, except as referred to, or reflected or
provided for in, the financial statements of the Borrower as of and for
the Fiscal Year ended December 31, 1998 described above in this Section
4.01(f) or as otherwise set forth on one or more of the Schedules to
the Loan Documents.
(g) The balance sheet of the Borrower as of November 30, 1998,
and the related statements of income, stockholders' equity and cash
flow of the Borrower for the eleven-month period then ended, duly
certified by a Senior Financial Officer, copies of which have been
furnished to the Lender Parties, fairly present in all material
respects, subject to the absence of footnote disclosure and normal
year-end audit adjustments, the financial condition of the Borrower as
at such date and the results of operations and cash flow of the
Borrower for the period ended on such date. The financial statements
referred to above in this Section 4.01(g) have been prepared, subject
to normal year-end audit adjustments and the absence of notes thereto,
in accordance with GAAP applied consistently throughout the respective
periods covered thereby.
(h) The pro forma statements of income of the Borrower for the
Fiscal Years ended December 31, 1995, December 31, 1996, December 31,
1997 and for the eight-month period ended August 31, 1998, accompanied
by a report of Rubin, Brown, Gornstein and Co. LLP, the independent
public accountants of the Borrower, copies of all of which have been
furnished to the Lender Parties, fairly present in all material
respects the pro forma adjustments to the results of operations of the
Borrower for the respective periods covered thereby, in each case after
giving effect to the Pre-Closing Reorganization.
(i) The forecasted Consolidated balance sheets and statements
of income, stockholders' equity and cash flow of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(k)(xiii)(D) or 5.03(f) were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were fair in the
light of conditions existing at the time of delivery of such forecasts,
and represented, at the time of delivery thereof to the Lender Parties,
the Borrower's reasonable estimate of its future financial performance
(although the actual results during the periods covered by such
forecasts may differ from the forecasted results).
(j) All of the information (other than financial projections
and pro forma information) furnished by or on behalf of any of the Loan
Parties or any of their Subsidiaries to any of the Agents or any of the
Lender Parties or any of their representatives or advisors in
connection with the Loan Documents or the Related Documents or any
aspect of the Transaction or any of the other transactions contemplated
hereby or thereby, considered as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made therein, in light of the circumstances in
which any such statements were made, not misleading. No
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fact, event, condition or circumstance is known to any of the Loan
Parties which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which has not
been set forth herein or in the financial statements referred to in
subsection (f) or (g) of this Section 4.01.
(k) There is no action, suit, litigation, arbitration or
proceeding pending or, to the best knowledge of the Borrower,
threatened (and, to the best knowledge of the Borrower, there is no
investigation pending or threatened) against or affecting any of the
Loan Parties or any of their Subsidiaries or any of the property or
assets thereof in any court or before any arbitrator or by or before
any Governmental Authority of any kind that (i) either individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect (other than the Disclosed Litigation) or (ii) could
reasonably be expected to adversely affect the legality, validity,
binding effect or enforceability of any aspect of the Transaction, any
of the Loan Documents or the Related Documents or any of the other
transactions contemplated thereby; and there shall have been no adverse
change in the status, or in the reasonably anticipated financial effect
on any of the Loan Parties or any of their Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.02(b) hereto.
(l) Each of the Loan Parties is the legal and beneficial owner
of the Collateral purported to be owned thereby under the Collateral
Documents, free and clear of all Liens, except for the liens and
security interests created or expressly permitted under the Collateral
Documents. The Collateral Documents, together with the filing of
appropriate Uniform Commercial Code financing statements in favor of
the Administrative Agent, on behalf of the Secured Parties, and the
possession of the certificates evidencing the Equity Interests in the
Subsidiaries of the Borrower comprising part of the Collateral, create
valid and perfected first priority liens on and security interests in
the Collateral (subject to the liens and security interests expressly
permitted under Section 5.02(a)) in favor of the Administrative Agent,
for the benefit of the Secured Parties, securing the payment of the
Secured Obligations. Certificates representing all of the Equity
Interests in the Subsidiaries of the Loan Parties that are purported to
comprise part of the Collateral have been delivered to the
Administrative Agent as required under the terms of the Collateral
Documents, together with undated stock powers or other appropriate
powers duly executed in blank; all filings and other actions necessary
to perfect and protect the liens and security interests of the
Administrative Agent in the Collateral have been duly made or taken and
are in full force and effect or will be duly made or taken in
accordance with the terms of the Loan Documents; and all filing fees
and recording taxes have been paid in full.
(m) Each of the Loan Parties and each of their Subsidiaries
own or have the legal right to use all of the patents, licenses,
franchises, copyrights, service marks, trademarks, trade secrets and
trade names that are necessary to own or lease and operate their
respective property and assets and to conduct their respective
businesses as now conducted and as currently proposed to be conducted,
without known conflict with the rights of any other Person (other than
any such patent, licence, franchise, copyright, service mark,
trademark, trade secret, trade name or other right that, both
individually and in the aggregate, is not material to the business,
financial condition or operations of the Loan Party or the Subsidiary
of a Loan Party that owns or possesses it). No action, suit,
litigation, arbitration or proceeding is pending or, to the best
knowledge of the Borrower, threatened (and, to the best knowledge of
the Borrower, no investigation is pending or threatened) challenging
the use by any of the Loan Parties or any of their Subsidiaries of any
such patent, license, franchise, copyright, service mark, trademark,
trade secret, trade name or the validity or effectiveness thereof,
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except for any such action, suit, investigation, litigation,
arbitration or proceeding that, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(n) None of the proceeds of any Advance or the drawings under
any Letter of Credit will be used to acquire any equity security of a
class which is registered pursuant to Section 12 of the Exchange Act.
Neither the Borrower nor any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying
any "margin stock" (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 207)). None of the
proceeds of any Advance or the drawings under any Letter of Credit will
be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying margin stock.
(o) Neither any of the Loan Parties nor any of their
Subsidiaries is an "investment company" or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company"
(each as defined in the Investment Company Act of 1940, as amended).
None of the making (or deemed making) of any Advance, the issuance (or
deemed issuance) of any Letter of Credit or the application of the
proceeds therefrom, or the repayment of any Advance by the Borrower, or
the consummation of the Transaction or any of the other transactions
contemplated hereby, will violate any provision of the Investment
Company Act of 1940, as amended, or any rule, regulation or order of
the Securities and Exchange Commission thereunder.
(p) The Borrower is, individually and together with its
Subsidiaries, taken as a whole, Solvent.
(q) Neither any of the Loan Parties nor any of their
Subsidiaries is a party to any loan agreement, indenture, mortgage,
deed of trust, lease, instrument, contract or other agreement or is
subject to any restriction in its Constitutive Documents or any other
corporate, partnership, limited liability company or similar
restriction that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(r) Except as, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, there is
(i) no unfair labor practice complaint pending or, to the best
knowledge of the Borrower, threatened against any of the Loan Parties
or any of their Subsidiaries by or before any Governmental Authority,
and no grievance or arbitration proceeding pending or, to the best
knowledge of the Borrower, threatened against any of the Loan Parties
or any of their Subsidiaries which arises out of or under any
collective bargaining agreement, (ii) no strike, labor dispute,
slowdown, stoppage or similar action or grievance pending or, to the
best knowledge of the Borrower, threatened against any of the Loan
Parties or any of their Subsidiaries and (iii) to the best knowledge of
the Borrower, no union representation question existing with respect to
the employees of any of the Loan Parties or any of their Subsidiaries
and no union organizing activity taking place with respect to any of
the employees of any of them.
(s) Except as, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, there
exists no actual or threatened termination, cancellation or limitation
of, or modification to or change in, the business relationship between
(i) any of the Loan Parties or any of their Subsidiaries, on the one
hand, and any carrier, any customer or any group thereof, on the other
hand, or (ii) any of the Loan Parties or any of their Subsidiaries, on
the one hand, and any supplier thereof, on the other hand; and, to the
best knowledge of the Borrower, there
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exists no present state of facts or circumstances that could reasonably
be expected to give rise to or result in any such termination,
cancellation, limitation, modification or change.
(t) No ERISA Event has occurred or could reasonably be
expected to occur with respect to any Plan that, either individually or
in the aggregate, has had or could reasonably be expected to have, a
Material Adverse Effect. Schedule B (Actuarial Information) to the most
recent annual report (form 5500 series) for each of the Plans, copies
of which have been filed with the Internal Revenue Service and
furnished or made available to the Lender Parties, is complete and
accurate and fairly presents in all material respects the funding
status of such Plan; and, since the date of such Schedule B, there has
been no material adverse change in the funding status of such Plan.
Neither any of the Loan Parties nor any of the ERISA Affiliates (i) has
incurred or could reasonably be expected to incur any Withdrawal
Liability to any Multiemployer Plan in excess of $1,000,000 or (ii) has
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and, to the best knowledge of the
Loan Parties and the ERISA Affiliates, no such Multiemployer Plan could
reasonably be expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(u) The operations and properties of each of the Loan Parties
and each of their Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits; all past
noncompliance with such Environmental Laws and Environmental Permits
has been resolved without any material ongoing obligations or costs;
all Environmental Permits that are necessary for the operations or
properties of any of the Loan Parties or any of their Subsidiaries have
been obtained and are in full force and effect, except where and to the
extent that the failure to obtain or maintain in full force and effect
any such Environmental Permit, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect; and
no circumstances exist that, either individually or in the aggregate,
could reasonably be expected to (i) form the basis of an Environmental
Action against any of the Loan Parties or any of their Subsidiaries or
any of the properties thereof that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect or (ii) cause any such property to be subject to any material
restrictions on ownership, occupancy or use or on the transferability
of such property by any of the Loan Parties or any of their
Subsidiaries under any Environmental Law.
(v) (i) None of the properties owned or operated by any of the
Loan Parties or any of their Subsidiaries is listed or, to the best
knowledge of the Borrower, is proposed for listing on the NPL or on the
CERCLIS or any analogous state or local list or, to the best knowledge
of the Borrower, is adjacent to any such property; and (ii) except as,
either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, (A) there are no, and never
have been any, underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed of on any
property owned or operated by any of the Loan Parties or any of their
Subsidiaries or, to the best knowledge of the Borrower, on any property
formerly owned or operated by any of the Loan Parties or any of their
Subsidiaries, (B) there is no asbestos or asbestos-containing material
on any property owned or operated by any of the Loan Parties or any of
their Subsidiaries and (C) Hazardous Materials have not been released,
discharged or disposed of on any property owned or operated by any of
the Loan Parties or any of their Subsidiaries.
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(w) Neither any of the Loan Parties nor any of their
Subsidiaries is undertaking, and has not completed, either individually
or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to
any actual or threatened release, discharge or disposal of Hazardous
Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements
of any Environmental Law that, either individually or in the aggregate,
could reasonably be expected to result in material liability to the
Borrower or any of its Subsidiaries. All Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any
property owned or operated by any of the Loan Parties or any of their
Subsidiaries have been disposed of in a manner that, either
individually or in the aggregate, could not reasonably be expected to
result in material liability to the Borrower or any of its
Subsidiaries.
(x) Each of the Loan Parties and each of their Subsidiaries
and Affiliates have filed, have caused to be filed or have been
included in all federal and state tax returns, reports and statements,
and all other material tax returns, reports and statements, required to
be filed and have paid or caused to be paid all taxes, assessments,
levies, fees and other charges shown thereon (or on any assessments
received by any such Person or of which any such Person has been
notified) to be due and payable, together with applicable interest and
penalties, except for any such taxes, assessments, levies, fees and
other charges the amount, applicability or validity of which is being
contested in good faith and by appropriate proceedings diligently
conducted and with respect to which the applicable Loan Party or
Subsidiary or Affiliate of a Loan Party, as the case may be, has
established appropriate and adequate reserves in accordance with GAAP.
All of the tax returns, reports and statements referred to in the
immediately preceding sentence have been prepared in good faith and are
complete and accurate in all material respects for each of the Loan
Parties and each of their Subsidiaries for the respective periods
covered thereby.
(y) Set forth on Schedule 4.01(y) hereto is a complete and
accurate list, as of the date of this Agreement, of each of the Open
Years of each of the Loan Parties and each of their Subsidiaries. There
are no adjustments, as of the date of this Agreement, to (i) the
federal income tax liability (including, without limitation, interest
and penalties) of any of the Loan Parties or any of their Subsidiaries
proposed in writing by the Internal Revenue Service with respect to
their respective Open Years or (ii) any foreign, state or local tax
liability (including, without limitation, interest and penalties) of
any of the Loan Parties or any of their Subsidiaries proposed in
writing by any foreign, state or local taxation authority or other
Governmental Authority (other than amounts arising solely from
adjustments to federal income tax returns of the Loan Parties and their
Subsidiaries) that, in the case of clauses (i) and (ii) of this
sentence, have not been fully assumed or retained by (or for which the
Loan Parties and their Subsidiaries are not fully and unconditionally
indemnified for by), the Sellers under the terms of the
Recapitalization Agreement. No issues have been raised by the Internal
Revenue Service in respect of Open Years of any of the Loan Parties or
any of their Subsidiaries or by any such foreign, state or local
taxation authorities or other Governmental Authorities that, either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect. Neither any of the Loan Parties nor any of
their Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the assessment, reassessment, payment or
collection of taxes of any Loan Party or any such Subsidiary, or is
aware of any circumstances that would cause the taxable years or other
taxable periods of any Loan Party or any such Subsidiary to no longer
be subject to the normally applicable statute of limitations. Neither
any of the Loan Parties nor any of
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their Subsidiaries has provided, with respect to itself or any property
held by it, any consent under Section 341(f) of the Internal Revenue
Code.
(z) At all times from 1982 until the Closing Date, the
Borrower had in effect a valid election under Section 1362(a) of the
Internal Revenue Code (or a comparable election under any successor
provision) to be taxed as an "S Corporation" for federal income tax
purposes and comparable elections under state or local law and the
Borrower has not received and is not aware of any proposal from the
Internal Revenue Service or any state or local taxation authority to
disallow such election to be taxed as an "S Corporation" (or any
comparable state or local law election) for any taxable year from 1982
to the short taxable year ending on the day immediately preceding the
Closing Date.
(aa) The Borrower, on behalf of itself and its Subsidiaries,
(i) has initiated a review and assessment of all areas within its own
and each of its Subsidiaries' business and operations (including those
affected by material suppliers, vendors and customers) that could
reasonably be expected to be adversely affected by the risk that
computer applications used by the Borrower or any of its Subsidiaries
(or by their respective material suppliers, vendors and customers) may
be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999
(collectively, the "Year 2000 Problem"), (ii) has developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis and
(iii) has implemented such plan to date in accordance with such
timetable. Based on the foregoing, the Borrower believes that all
computer applications (including those of its own and each of its
Subsidiary's suppliers, vendors and customers) that are material to its
or any of its Subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1,
2000, except to the extent that a failure to do so, either individually
or in the aggregate, could not reasonably be expected to have Material
Adverse Effect.
(bb) Set forth on Schedule 3.01(f) hereto is a complete and
accurate list as of the Closing Date of all Surviving Indebtedness,
showing, as of such date, the principal amount outstanding thereunder,
the interest rate thereon, the scheduled maturity date thereof and the
amortization schedule, if any, therefor.
(cc) Set forth on Schedule 4.01(cc) hereto is a complete and
accurate list as of the Closing Date of all Liens on the property or
assets of the Borrower, showing as of such date, the lienholder
thereof, the principal amount of the Obligations secured thereby and
the property or assets of the Borrower subject thereto.
(dd) Set forth on (i) Part A of Schedule 4.01(dd) hereto is a
complete and accurate list as of the date of this Agreement or as of
the date of the most recent amendment, supplement or other modification
to Schedule 4.01(dd) hereto (whether pursuant to Section 5.03(g) or
otherwise) of all real property owned by the Borrower or any of its
Subsidiaries, showing as of such date, the street address, county or
other relevant jurisdiction, state, record owner and book and fair
value thereof and (ii) Part B of Schedule 4.01(dd) hereto is a complete
and accurate list as of the date of this Agreement or as of the date of
the most recent amendment, supplement or other modification to Schedule
4.01(dd) hereto (whether pursuant to Section 5.03(g) or otherwise) of
all leases of real property under which any of the Loan Parties or any
of their Subsidiaries is the lessee, showing as of such date, the
street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. The Borrower
and each of its Subsidiaries have good,
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marketable and insurable fee simple title to all of the real property
set forth on Part A of Schedule 4.01(dd) hereto, free and clear of all
Liens other than Liens created or expressly permitted under the Loan
Documents, except for any such real property that has been sold,
leased, transferred or otherwise disposed of in accordance with the
terms of the Loan Documents. All of the leases referred to on Schedule
4.01(dd) hereto are valid and subsisting and in full force and effect,
unless such lease has lapsed, terminated or been canceled in accordance
with the terms of the Loan Documents.
(ee) Set forth on Schedule 4.01(ee) hereto is a complete and
accurate list as of the date of this Agreement or as of the date of the
most recent amendment, supplement or other modification to Schedule
4.01(ee) hereto (whether pursuant to Section 5.03(g) or otherwise) of
all of the Investments (other than cash and Cash Equivalents and
intercompany Investments expressly permitted under Section 5.02(e)(iv))
held by any of the Loan Parties or any of their Subsidiaries, showing,
as of such date, the amount, the obligor or issuer thereof and the
maturity, if any, thereof.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents (other than any such Obligations of any of the Loan
Parties under Section 2.10, 2.12 or 8.04 (or other similar provisions of the
other Loan Documents that are specified under the terms thereof to survive the
payment in full of such other Obligations under or in respect of the Loan
Documents) to the extent no demand or claim thereunder has been made) shall
remain unpaid, any of the Letters of Credit shall remain outstanding or any of
the Lender Parties shall have any Commitment hereunder, the Borrower will, at
all times:
(a) Compliance with Laws, Maintenance of Governmental
Authorizations, Etc. (i) Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable Requirements of
Law, such compliance to include, without limitation, compliance with
ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970 and (ii) except as provided in
Section 5.01(e), obtain and maintain in effect all Governmental
Authorizations that are necessary (A) to own or lease and operate their
respective property and assets and to conduct their respective
businesses as now conducted and as proposed to be conducted, except
where and to the extent that the failure to obtain or maintain in
effect any such Governmental Authorization, either individually or in
the aggregate, could not reasonably be expected to have a Material
Adverse Effect, or (B) for the due execution, delivery or performance
by the Borrower or any of its Subsidiaries of any of the Loan Documents
or the Related Documents to which it is or is to be a party, or for the
consummation of any aspect of the Transaction or any of the other
transactions contemplated hereby and thereby. This Section 5.01(a)
shall not apply to compliance with Environmental Laws or Environmental
Permits (which is the subject of Section 5.01(c)).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, to the extent due and payable
and before the same shall become delinquent, (i) all taxes,
assessments, reassessments, levies and other governmental charges
imposed upon it or upon its property, assets, income or franchises and
(ii) all lawful claims that, if unpaid, might by law
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become a Lien upon its property and assets or any part thereof;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, reassessment, levy, charge or claim the amount,
applicability or validity of which is being contested in good faith and
by proper proceedings diligently conducted and as to which appropriate
and adequate reserves are being maintained by the Borrower or its
applicable Subsidiary in accordance with GAAP, unless and until any
Lien resulting therefrom attaches to its property and assets and
enforcement, collection, execution, levy or foreclosure proceedings
shall have been commenced with respect thereto.
(c) Compliance with Environmental Laws. (i) Comply (and
require all lessees and other Persons operating or occupying any of its
properties to comply), and cause each of its Subsidiaries to comply
(and to require all lessees and other Persons operating or occupying
any of its properties to comply), in all material respects, with all of
the applicable Environmental Laws and the Environmental Permits
applicable to such Person or its operations or properties; (ii) obtain
and renew, and cause each of its Subsidiaries to obtain and renew, all
of the Environmental Permits necessary for the ownership or operation
of their respective properties or the conduct of their respective
businesses as now conducted and as proposed to be conducted; and (iii)
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling or testing, and undertake, and cause
each of its Subsidiaries to undertake, any cleanup, removal, remedial
or other action, necessary to remove and clean up all of the Hazardous
Materials from any of its properties in accordance with the
requirements of all applicable Environmental Laws, except, in the case
of clause (ii) or (iii) of this Section 5.01(c), where the failure to
obtain or renew any such Environmental Permit, to conduct any such
investigation, study, sampling or testing or to undertake any such
cleanup, removal, remedial or other action, either individually or in
the aggregate, could not reasonably be expected (A) to have a Material
Adverse Effect or (B) to subject the Borrower or any of its
Subsidiaries to any criminal penalty or liability or to subject the
Administrative Agent or any of the Lender Parties to any criminal
penalty or liability or (except for nonmaterial fines for which the
Administrative Agent or such Lender Party is fully indemnified under
Section 8.04) any civil penalty or liability; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action otherwise
required under this Section 5.01(c) to the extent that the amount,
applicability or validity thereof is being contested in good faith and
by proper proceedings diligently conducted and appropriate and adequate
reserves are being maintained by the Borrower or its applicable
Subsidiary with respect to such circumstances in accordance with GAAP.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance for their respective properties,
assets and businesses (i) with insurance companies or associations that
have, or that have directly reinsured such insurance with insurance
companies or associations that have, an A.M. Best Company claims paying
ability rating of at least "A-" (or the then equivalent rating) and
(ii) of such types (including, without limitation, insurance against
theft and fraud and against loss or damage by fire, explosion or hazard
of or to property and general public liability insurance), in such
amounts and with such deductibles, covering such casualties and
contingencies and otherwise on such terms as are at least as favorable
as those usually carried by companies of established reputations
engaged in similar businesses and owning similar properties and assets
in the same general areas in which the Borrower or its applicable
Subsidiary operates or as may otherwise be required by applicable
Requirements of Law; provided, however, that the Borrower and its
Subsidiaries may effect workers' compensation insurance or similar
coverage with respect to their respective operations in any particular
jurisdiction through an insurance fund
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operated by such jurisdiction or by meeting the self-insurance
requirements of such jurisdiction so long as the Borrower or such
Subsidiary establishes and maintains appropriate and adequate reserves
therefor in accordance with GAAP.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, organization, rights (statutory and
pursuant to its Constitutive Documents), permits, licenses, approvals,
privileges and franchises; provided, however, that the Borrower and its
Subsidiaries (i) may consummate any merger or consolidation otherwise
expressly permitted under Section 5.02(c) and (ii) may amend,
supplement or otherwise modify their rights under their respective
Constitutive Documents to the extent otherwise expressly permitted
under Section 5.02(m); and provided further, however, that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any
permit, license, approval, privilege or franchise if the board of
directors (or the persons performing similar functions) of the Borrower
or such Subsidiary shall determine in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
such Subsidiary or the Lender Parties or, solely in the case of any
such permit, license or qualification to do business as a foreign
corporation, limited partnership or limited liability company in any
jurisdiction, that the loss thereof, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(f) Visitation Rights. At any reasonable time and from time to
time, permit any of the Agents or any of the Lender Parties, or any
agents or representatives thereof (so long as such agents or
representatives are or agree to be bound by the provisions of Section
8.09), to examine and make copies of and abstracts from the records and
books of account of, and to visit the properties of, the Borrower and
its Subsidiaries and to discuss the affairs, finances and accounts of
the Borrower and/or any of its Subsidiaries with any of their officers
or directors and with their independent public accountants (and, in
furtherance thereof, the Borrower shall deliver to any independent
public accountants engaged by the Borrower or any of its Subsidiaries
after the date of this Agreement a letter from the Borrower, on behalf
of itself and its Subsidiaries, advising such accountants that the
Administrative Agent, on behalf of the Lender Parties, has been
authorized to exercise all rights of the Borrower to require such
accountants to disclose any and all financial statements and any other
information relating to the financial condition, operations or
performance of the Borrower or any of its Subsidiaries that they may
have and directing such accountants to comply with any reasonable
request of the Administrative Agent for such information).
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account in which full and accurate
entries shall be made of all of the financial transactions and the
property, assets and businesses of the Borrower and each of its
Subsidiaries (including, without limitation, the establishment and
maintenance of adequate and appropriate reserves) in accordance with
GAAP and all applicable Requirements of Law.
(h) Maintenance of Properties, Etc. (i) Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of its
material properties that, either individually or in the aggregate, are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear and casualty and condemnation
excepted, and (ii) make, and cause each of its Subsidiaries to make,
from time to time, all repairs, renewals, additions, replacements,
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betterments and improvements of such properties that are reasonably
necessary in order to permit the business and activities carried on in
connection therewith to be properly conducted at all times.
(i) Compliance with Terms of Leaseholds. (i) Make all payments
and otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or to be terminated or any rights to renew such leases to be
forfeited or canceled, in each case except to the extent that, in the
reasonable business judgment of the Borrower or the Subsidiary of the
Borrower that is the lessee thereof, it is in the best interest of the
Borrower or such Subsidiary, as the case may be, to allow or to cause
such nonperformance, lapse, termination, forfeiture or cancellation,
and such nonperformance, lapse, termination, forfeiture or
cancellation, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, and (ii)
promptly notify the Administrative Agent, upon obtaining knowledge
thereof, of (A) any default by any party with respect to any lease that
is material to the business, financial condition or operations of the
Borrower or the Subsidiary thereof that occupies the real property
subject to such lease or is otherwise the lessee thereof, and cooperate
with the Administrative Agent to cure any such default, and (B) any
material nonperformance, or any lapse, termination, forfeiture or
cancellation of any lease otherwise permitted to occur under clause (i)
of this Section 5.01(i), and, in respect of each of the foregoing
provisions of this Section 5.01(i), cause each of its Subsidiaries to
do so.
(j) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, directly or indirectly, all transactions
or series of related transactions (including, without limitation, the
purchase, sale, lease, transfer or exchange of property or assets of
any kind or the rendering of services of any kind) otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Borrower or any of its
Subsidiaries than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate thereof, other than:
(i) the consummation of the Recapitalization;
(ii) the performance by the Borrower of its
obligations under the Related Documents, in each case as in
effect on the Closing Date;
(iii) loans and advances by the Borrower or any of
its Subsidiaries to one or more employees thereof, in each
case to the extent permitted under Section 5.02(e)(vi);
(iv) the performance by the Borrower of its
obligations under the Operating Leases under which Rex Realty
Co. or one or more other Affiliates of David Pratt is the
lessor, as in effect on the Closing Date, and any extensions,
renewals or refinancings thereof on terms no less favorable to
the Borrower or any of its Subsidiaries or to the rights or
interests of the Lender Parties than the terms of any such
Operating Lease being so extended, renewed or refinanced;
(v) the payment of management fees in cash to one or
more of the THL Entities pursuant to the terms of the
Professional Services Agreement, as in effect on the Closing
Date, in an aggregate amount not to exceed $1,000,000 in any
Fiscal Year;
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(vi) the payment of nonrecurring transaction fees to
the THL Entities in connection with any purchase or other
acquisition of a Person or a line of business by the Borrower
or any of the Restricted Subsidiaries in an amount not to
exceed 1% of the total consideration being paid by the
Borrower and its Subsidiaries for such purchase or other
acquisition, such fee, in each case, to be payable in full
upon the consummation of the related purchase or other
acquisition; and
(vii) any transaction or series of related
transactions solely between or among the Borrower and one or
more of the Restricted Subsidiaries, between or among one or
more of the Restricted Subsidiaries, or between or among one
or more of the Unrestricted Subsidiaries, in each case to the
extent such transaction or series of related transactions is
otherwise permitted under the terms of the Loan Documents.
Notwithstanding the foregoing provisions of this Section 5.01(j),
neither the Borrower nor any of its Subsidiaries shall conduct any
transaction or series of related transactions (other than any
transaction or series of transactions otherwise permitted under any of
clauses (i) through (vii) of this Section 5.01(j)), directly or
indirectly, with any of its Affiliates (A) having an aggregate value or
involving an aggregate amount of more than $2,000,000 unless the
Borrower obtains a resolution of its board of directors certifying that
such transaction or series of related transactions complies with this
Section 5.01(j) and (B) having an aggregate value or involving an
aggregate amount of more than $10,000,000 (other than any transaction
or series of transactions otherwise permitted under any of clauses (i)
through (vii) of this Section 5.01(j) or any sale by the Borrower of
common Equity Interests therein) unless the Borrower has delivered to
the Administrative Agent, on behalf of the Lender Parties, an opinion
of an independent investment banking firm or appraisal firm of national
standing stating that such transaction or series of related
transactions are fair to the Borrower and/or its applicable
Subsidiaries from a financial point of view.
(k) Covenant to Give Security. Upon (i) the request of the
Administrative Agent following the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f) or an Event
of Default or (ii) the purchase or other acquisition of any real
property or any personal property by any Loan Party, which property, in
the judgment of the Administrative Agent, shall not already be subject
to a valid and perfected first priority lien and security interest in
favor of the Administrative Agent, for the benefit of the Secured
Parties, the Borrower shall, in each case at its own expense:
(A) within ten days after such request or purchase or
other acquisition, furnish to the Administrative Agent a
description of the real and personal properties of each of the
Loan Parties and their respective Subsidiaries in detail
reasonably satisfactory to the Administrative Agent;
(B) within 20 days after such request or purchase or
other acquisition, duly execute and deliver, and cause each
such Subsidiary to duly execute and deliver, to the
Administrative Agent mortgages, collateral assignments,
Security Agreement Supplements and other security agreements,
as specified by and in form and substance reasonably
satisfactory to the Administrative Agent, securing payment of
all of the Obligations of the applicable Loan Party or
Subsidiary of a Loan Party, as the case may be, under and in
respect of the Loan Documents and constituting liens on and
security interests in all such real and personal properties;
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(C) within 30 days after such request or purchase or
other acquisition, take, and cause each such Subsidiary to
take, whatever action (including, without limitation, the
recording of mortgages, the filing of Uniform Commercial Code
financing statements and IP Security Agreements--Short Form,
the giving of notices and the endorsement of notices on title
documents) may be necessary or in the reasonable opinion of
the Administrative Agent advisable to vest in the
Administrative Agent (or in any co-agent, sub-agent or other
representative of the Administrative Agent designated by it)
valid and subsisting liens on and security interests in the
real and personal properties purported to be subject to the
mortgages, collateral assignments, Security Agreement
Supplements and security agreements delivered pursuant to this
Section 5.01(k), enforceable against all third parties in
accordance with their terms;
(D) within 35 days after such request or purchase or
other acquisition, upon the request of the Administrative
Agent, deliver to the Administrative Agent a signed copy of
one or more favorable opinions of counsel for the applicable
Loan Parties, addressed to the Administrative Agent and the
other Secured Parties and reasonably acceptable to the
Administrative Agent, as to the matters contained in
subclauses (A), (B) and (C) of this Section 5.01(k), as to
such mortgages, collateral assignments, Security Agreement
Supplements and security agreements being legal, valid and
binding obligations of each of the Loan Parties party thereto,
enforceable against such Loan Party in accordance with their
terms, as to such recordings, filings, notices, endorsements
and other actions being sufficient to create valid and
perfected liens on and security interests in such real and
personal properties, and as to such other matters as the
Administrative Agent may reasonably request;
(E) as promptly as practicable after such request or
purchase or other acquisition, deliver, upon the reasonable
request of the Administrative Agent, to the Administrative
Agent with respect to each parcel of real property owned or
held by the Loan Party or the Subsidiary of the Loan Party
that is the subject of such request or such purchase or other
acquisition, title reports, surveys and engineering, soils and
other reports, and Phase I environmental assessment reports,
each in scope, form and substance reasonably satisfactory to
the Administrative Agent, provided, however, that to the
extent that any of the Loan Parties or any of its Subsidiaries
shall have otherwise received any of the foregoing items with
respect to such real property, such items shall, promptly
after the receipt thereof, be delivered to the Administrative
Agent;
(F) upon the occurrence and during the continuance of
a Default under Section 6.01(a) or 6.01(f) or an Event of
Default, promptly execute and deliver, and cause each of its
Subsidiaries to promptly execute and deliver, any and all
instruments and take, and cause each of its Subsidiaries to
take, any and all such other actions as may be necessary or as
the Administrative Agent may deem reasonably desirable in
order to obtain and maintain from and after the time any
dividend or other distribution is paid or payable by any of
the Subsidiaries of the Borrower a valid and perfected first
priority lien on and security interest in such dividend or
other distribution; and
(G) at any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as may be necessary
or as the Administrative Agent may deem reasonably desirable
in obtaining the full benefits of,
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or in perfecting and preserving the Liens created under, such
mortgages, collateral assignments, Security Agreement
Supplements and security agreements.
(l) Further Assurances. Promptly upon the request of the
Administrative Agent, or any of the Lender Parties through the
Administrative Agent, at any time and from time to time, (i) correct,
and cause each of its Subsidiaries to promptly correct, any defect or
error that may be discovered in any of the Loan Documents or in the
execution, acknowledgment, filing or recordation thereof and (ii) do,
execute, acknowledge, deliver, record, re-record, file, re-file,
register and re- register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
collateral assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments and take such further actions, and
cause each of its Subsidiaries promptly to do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, collateral assignments,
financing statements and continuations thereof, termination statements,
notices of collateral assignments, transfers, certificates, assurances
and other instruments and take such further action, as may be necessary
or as the Administrative Agent, or any of the Lender Parties through
the Administrative Agent, may reasonably request from time to time in
order to (A) carry out more effectively the provisions and purposes of
the Loan Documents or assure the Administrative Agent or the Lender
Parties of their rights and interests herein and therein, (B) to the
fullest extent permitted by applicable law, subject any of the Loan
Party's or any of its Subsidiaries' properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any
of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any
of the Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any of the Loan
Documents or under any other instrument executed in connection with any
of the Loan Documents to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries
to do so.
SECTION 5.02. Negative Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents (other than any such Obligations of any of the Loan
Parties under Section 2.10, 2.12 or 8.04 (or other similar provisions of the
other Loan Documents that are specified under the terms thereof to survive the
payment in full of such other Obligations under or in respect of the Loan
Documents) to the extent no demand or claim thereunder has been made) shall
remain unpaid, any of the Letters of Credit shall remain outstanding or any of
the Lender Parties shall have any Commitment hereunder, the Borrower shall not,
at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its property or assets of
any character (including, without limitation, accounts), whether now
owned or hereafter acquired, or sign or file or suffer to exist, or
permit any of its Subsidiaries to sign or file or suffer to exist,
under the Uniform Commercial Code or any similar Requirements of Law of
any jurisdiction, a financing statement (or the equivalent thereof)
that names the Borrower or any of its Subsidiaries as debtor, or sign
or suffer to exist, or permit any of its Subsidiaries to sign or suffer
to exist, any security agreement authorizing any secured party
thereunder to file any such financing statement (or the equivalent
thereof), or sign or suffer to exist, or permit any of its Subsidiaries
to sign or suffer to exist, any agreement or arrangement for the sale
of any of its property or assets subject to an
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understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable with
recourse to the Borrower or any of its Subsidiaries), or assign, or
permit any of its Subsidiaries to assign, any accounts or other right
to receive income, excluding, however, from the operation of the
foregoing restrictions:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the Closing Date and
described on Schedule 4.01(cc) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such real property or equipment or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of any such real
property or equipment to be subject to such Liens, or Liens
existing on any such real property or equipment at the time of
its acquisition or the completion of its construction or
improvement (other than any such Liens created in
contemplation of such acquisition, construction or improvement
that do not secure the purchase price of such real property or
equipment); provided, however, that no such Lien shall extend
to or cover any property or assets other than the real
property or equipment being so acquired, constructed or
improved; and provided further that (a) the principal amount
of Indebtedness secured by any such Lien shall not exceed 100%
of the lesser of (1) the cost to the Borrower or the
applicable Subsidiary of the real property or equipment to be
subject to any such Lien (including all such Indebtedness
secured thereby, whether or not assumed) and (2) the Fair
Market Value of such real property or equipment, determined as
of the date of acquisition, construction or improvement
thereof, and (b) any Indebtedness secured by Liens shall
otherwise be expressly permitted under Section 5.02(b)(ii)(D)
and shall not otherwise be prohibited under the terms of the
Loan Documents;
(v) Liens arising solely in connection with
Capitalized Leases otherwise permitted under Section
5.02(b)(ii)(E) and not otherwise prohibited under the terms of
the Loan Documents; provided that no such Lien shall extend to
or cover any property or assets other than property or assets
subject to such Capitalized Leases;
(vi) Liens upon any of the property and assets (other
than any Equity Interests in any Person) existing at the time
such property or asset is purchased or otherwise acquired by
the Borrower or any of its Subsidiaries; provided that any
such Lien was not created in contemplation of such purchase or
other acquisition and does not extend to or cover any property
or assets other than the property or asset being so purchased
or otherwise acquired; and provided further that any
Indebtedness or other Obligations secured by such Liens shall
otherwise be expressly permitted under Section 5.02(b) and
shall not otherwise be prohibited under the terms of the Loan
Documents;
(vii) Liens upon any of the property and assets
(other than any Equity Interests in any Person) of a Person
and its Subsidiaries existing at the time such Person is
merged into or consolidated with any of the Subsidiaries of
the Borrower, or otherwise becomes a
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Subsidiary of the Borrower, in accordance with the terms of
the Loan Documents; provided that any such Lien was not
created in contemplation of such merger, consolidation or
acquisition and does not extend to or cover any property or
assets other than property and assets of the Person and its
Subsidiaries being so merged into or consolidated with the
applicable Subsidiary of the Borrower or being acquired by the
Borrower or its applicable Subsidiary, as the case may be; and
provided further that any Indebtedness or other Obligations
secured by such Lien shall otherwise be expressly permitted
under Section 5.02(b) and shall not otherwise be prohibited
under the terms of the Loan Documents;
(viii) deposits made, and letters of credit issued,
to secure the performance of Operating Leases of the Borrower
and its Subsidiaries in the ordinary course of business;
provided that no such Lien shall extend to or cover any
property or assets other than such deposit or such letter of
credit and the property and assets subject to such Operating
Lease, as applicable; and provided further that any such
Operating Lease shall not otherwise be prohibited under the
terms of the Loan Documents;
(ix) Liens arising solely from precautionary filings
of financing statements under the Uniform Commercial Code of
the applicable jurisdictions in respect of Operating Leases of
the Borrower or any of its Subsidiaries not otherwise
prohibited under the terms of the Loan Documents;
(x) Liens upon any of the property and assets of the
Foreign Subsidiaries to secure Indebtedness otherwise
permitted under Section 5.02(b)(ii)(H) and not otherwise
prohibited under the terms of the Loan Documents;
(xi) Liens not otherwise permitted under this Section
5.02(a) securing Obligations of the Borrower and its
Subsidiaries (other than Indebtedness for borrowed money) in
an aggregate amount not to exceed $3,000,000 at any time
outstanding; and
(xii) the replacement, extension or renewal of any
Lien otherwise permitted to be created or to exist under
clauses (iii) (except to the extent Schedule 4.01(cc) hereto
provides that any such Lien shall not be replaced, extended or
renewed), (iv), (v), (viii), (x) and (xi) of this Section
5.02(a) upon or in the same property and assets theretofore
subject thereto; provided that no such extension, renewal or
replacement shall extend to or cover any property or assets
not theretofore subject to the Lien being extended, renewed or
replaced and shall not secure any additional Indebtedness or
other Obligations; and provided further that any Indebtedness
secured by such Liens shall otherwise be permitted under the
terms of the Loan Documents.
(b) Indebtedness. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, directly or indirectly, any Indebtedness other than:
(i) in the case of the Borrower,
(A) Surviving Indebtedness;
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(B) Indebtedness under the Senior
Subordinated Notes Documents in an aggregate
principal amount not to exceed $150,000,000;
(C) Indebtedness evidenced by the Permitted
Preferred Stock; and
(D) Indebtedness of the Borrower in respect
of interest rate Hedge Agreements entered into from
time to time after the date of this Agreement with
counterparties that are Lender Parties (or affiliates
of Lender Parties) at the time any such interest rate
Hedge Agreement is entered into in an aggregate
notional amount not to exceed (1) 50% of the
aggregate Commitments under all of the Facilities at
the time any such interest rate Hedge Agreement is
entered into less (2) the aggregate notional amount
of all interest rate Hedge Agreements that constitute
Investments made under Section 5.02(e)(iii); provided
that in all cases under this subclause (i)(D), such
interest rate Hedge Agreements shall be
nonspeculative in nature (including, without
limitation, with respect to the term and purpose
thereof); and
(ii) in the case of the Borrower and its
Subsidiaries,
(A) Indebtedness under the Loan Documents;
(B) guarantees of the Senior Subordinated
Notes by the wholly owned Subsidiaries of the
Borrower, so long as (1) each such wholly owned
Subsidiary is party to the Subsidiary Guarantee
(whether directly or through a Guarantee Supplement)
on or prior to the date on which it enters into such
guarantee and (2) the Obligations of each such wholly
owned Subsidiary under such guarantee are
subordinated to the Obligations of such wholly owned
Subsidiary under the Subsidiary Guarantee to at least
the same extent as the Obligations of the Borrower
under the Senior Subordinated Notes Documents are
subordinated to the Obligations of the Borrower under
and in respect of the Loan Documents;
(C) Indebtedness of (1) the Borrower owing
to any of the Restricted Subsidiaries, (2) any of the
Restricted Subsidiaries owing to the Borrower or any
of the other Restricted Subsidiaries, (3) any of the
Unrestricted Subsidiaries owing to the Borrower or
any of the Restricted Subsidiaries to the extent the
Investment in such Unrestricted Subsidiary is
otherwise expressly permitted under Section
5.02(e)(x) and (4) any of the Unrestricted
Subsidiaries owing to any of the other Unrestricted
Subsidiaries; provided that all such intercompany
Indebtedness owing to the Borrower or any of the
Restricted Subsidiaries shall be evidenced by a
promissory note containing subordination provisions
in substantially the form of Exhibit H hereto and
such other terms and conditions as shall be
reasonably acceptable to the Administrative Agent,
which promissory note shall, in each case, be pledged
as Collateral to the Administrative Agent, on behalf
of the Secured Parties, under the applicable
Collateral Documents immediately upon the creation
thereof;
(D) Indebtedness secured by Liens expressly
permitted under Section 5.02(a)(iv) in an aggregate
principal amount not to exceed, when aggregated
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with the principal amount of all Indebtedness
incurred under subclause (ii)(E)(2) of this Section
5.02(b), $10,000,000 at any time outstanding;
(E) (1) a Capitalized Lease replacing or
refinancing prior to September 30, 1999 the Operating
Lease under which David Pratt leases an airplane to
the Borrower on the date of this Agreement, which
Capitalized Lease shall be in an aggregate amount (as
capitalized in accordance with GAAP) not to exceed
$10,000,000, and (2) Capitalized Leases which, when
aggregated with the principal amount of all
Indebtedness incurred under subclause (ii)(D) of this
Section 5.02(b), do not exceed $10,000,000 at any
time outstanding;
(F) Contingent Obligations of the Borrower
guaranteeing all or any portion of the outstanding
Obligations of any of the Restricted Subsidiaries;
provided that each such Obligation is not otherwise
prohibited under the terms of the Loan Documents;
(G) Indebtedness comprised of trade payables
or other accounts payable to trade creditors incurred
in the ordinary course of business to the extent
otherwise included in the definition of
"Indebtedness" set forth in Section 1.01;
(H) Indebtedness of one or more Foreign
Subsidiaries arising in the ordinary course of
business in an aggregate principal amount not to
exceed $5,000,000 at any time outstanding; provided
that all such Indebtedness incurred pursuant to this
subclause (ii)(H) shall be nonrecourse in all
respects to the property and assets of the Loan
Parties and their Subsidiaries (other than one or
more of the Foreign Subsidiaries);
(I) Indebtedness existing at the time that
any property or asset is purchased or otherwise
acquired by the Borrower or any of its Subsidiaries,
or that any Person (other than the Borrower or any of
its Subsidiaries) is merged into or consolidated with
any of the Subsidiaries of the Borrower or otherwise
becomes a Subsidiary of the Borrower, in accordance
with the terms of the Loan Documents in an aggregate
principal amount not to exceed the lesser of (1)
$5,000,000 at any time outstanding and (2) the
aggregate amount of Indebtedness that would be able
to be incurred or assumed at such time under
subclause (ii)(J) of this Section 5.02(b); provided
that (x) no such Indebtedness shall be incurred in
contemplation of any such purchase or other
acquisition or any such merger, consolidation or
acquisition, (y) such Indebtedness shall be secured,
if at all, solely by Liens expressly permitted under
Section 5.02(a)(vi) or 5.02(a)(vii) and (z)
immediately before and immediately after giving pro
forma effect to such Indebtedness, no Default shall
have occurred and be continuing;
(J) Indebtedness not otherwise permitted
under this Section 5.02(b) in an aggregate principal
amount, when aggregated with the aggregate principal
amount of all Indebtedness incurred under subclause
(ii)(I) of this Section 5.02(b), not to exceed
$20,000,000 at any time outstanding; provided that,
with respect to any such Indebtedness issued or
incurred pursuant to this subclause (ii)(J), (1) such
Indebtedness shall not have a maturity date or any
scheduled or mandatory
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redemption or repurchase date prior to at least one
year after the scheduled Termination Date, (2) such
Indebtedness shall not be guaranteed or otherwise
credit enhanced by the Borrower or any of its
Subsidiaries, (3) if such Indebtedness is comprised
of seller financing of all or any portion of the
purchase price of any property or assets purchased or
otherwise acquired by the Borrower or any of its
Subsidiaries pursuant to Section 5.02(e), such
Indebtedness shall be subordinated to the Obligations
of the Borrower or its applicable Subsidiary under
and in respect of the Loan Documents on terms
reasonably satisfactory to the Lender Parties, (4)
the other terms and conditions of such Indebtedness
(and of any agreement entered into and of any
instrument issued in connection therewith) shall be
no less favorable to the Borrower and its
Subsidiaries or to the rights or interests of the
Lender Parties than the terms of the Loan Documents
and (5) immediately before and immediately after
giving pro forma effect to such Indebtedness, no
Default shall have occurred and be continuing;
(K) endorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business; and
(L) Indebtedness extending the maturity of,
or refunding, refinancing or replacing, in whole or
in part, any Indebtedness incurred under any of
subclauses (i)(A) (except to the extent Schedule
3.01(f) hereto provides that such Indebtedness shall
not be extended, refunded, refinanced or replaced),
(ii)(D), (ii)(E), (ii)(F), (ii)(H) and (ii)(J) of
this Section 5.02(b); provided, however, that (1) the
aggregate principal amount of such extended,
refunding, refinancing or replacement Indebtedness
shall not be increased above the principal amount
thereof and the premium, if any, payable thereon
outstanding immediately prior to such extension,
refunding, refinancing or replacement, (2) the direct
and contingent obligors therefor shall not be changed
as a result of or in connection with such extension,
refunding, refinancing or replacement, (3) such
extended, refunding, refinancing or replacement
Indebtedness shall not mature prior to the stated
maturity date or mandatory redemption date of the
Indebtedness being so extended, refunded, refinanced
or replaced, (4) if the Indebtedness being so
extended, refunded, refinanced or replaced is
subordinated in right of payment or otherwise to the
Obligations of the Borrower or any of its
Subsidiaries under and in respect of the Loan
Documents, such extended, refunding, refinancing or
replacement Indebtedness shall be subordinated to
such Obligations to at least the same extent, (5) the
terms of any such extending, refunding, refinancing
or replacement Indebtedness (and of any agreement
entered into and of any instrument issued in
connection therewith) shall be no less favorable to
the Borrower and its Subsidiaries or to the rights or
interests of the Lender Parties than the terms of the
Indebtedness being so extended, refunded, refinanced
or replaced and (6) immediately before and
immediately after giving pro forma effect to any such
extension, refunding, refinancing or replacement, no
Default shall have occurred and be continuing.
(c) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into or consolidate with it, or permit any
of its Subsidiaries to do so, except that:
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(i) any of the Restricted Subsidiaries may merge
into or consolidate with the Borrower; provided that the
Borrower is the surviving corporation;
(ii) any of the Subsidiaries of the Borrower may
merge into or consolidate with any of the Restricted
Subsidiaries; provided that the Person formed by such merger
or consolidation is a Restricted Subsidiary;
(iii) any of the Unrestricted Subsidiaries may merge
into or consolidate with any of the other Unrestricted
Subsidiaries;
(iv) in connection with any purchase or other
acquisition of Equity Interests in, or property and assets of,
any Person permitted under Section 5.02(e)(ix), any of the
Subsidiaries of the Borrower may merge into or consolidate
with any other Person or permit any other Person to merge into
or consolidate with it; provided that (A) if such Subsidiary
of the Borrower is a Restricted Subsidiary, the Person formed
by such merger or consolidation shall be a Restricted
Subsidiary, (B) if such Subsidiary is a non-wholly owned
Domestic Subsidiary, the Person formed by such merger or
consolidation shall be a Domestic Subsidiary and (C) if such
Subsidiary is a Foreign Subsidiary, the Person formed by such
merger or consolidation shall be a Subsidiary of the Borrower;
and provided further that the Person with which such
Subsidiary is merging or consolidating (1) shall be engaged in
substantially the same lines of business as one or more of the
principal businesses of the Borrower and its Subsidiaries in
the ordinary course and (2) shall not have any contingent
liabilities that could reasonably be expected to be material
to the business, financial condition, operations or prospects
of the Borrower and its Subsidiaries, taken as a whole (as
determined in good faith by the board of directors (or the
persons performing similar functions) of the Borrower or such
Subsidiary if the board of directors is otherwise approving
such transaction and, in each other case, by a Senior
Financial Officer); and
(v) in connection with any sale, transfer or other
disposition of all or substantially all of the Equity
Interests in, or the property and assets of, any Person
permitted under Section 5.02(d)(ix), any of the Subsidiaries
of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate
with it.
In all cases under this Section 5.02(c), (x) such merger or
consolidation shall be effected in compliance with all applicable
Requirements of Law, (y) all Governmental Authorizations, and all
consents, approvals and authorizations of, and notices and filings to
or with, and other actions by, any other Person necessary in connection
with such merger or consolidation shall have been obtained or made and
(z) immediately before and immediately after giving pro forma effect to
such merger or consolidation, no Default shall have occurred and be
continuing. In addition, in the case of any merger or consolidation
effected pursuant to clause (iv) or (v) of this Section 5.02(c),
immediately after giving effect to such merger or consolidation, the
Borrower and its Subsidiaries shall be in pro forma compliance with all
of the covenants set forth in Section 5.04, such compliance to be
determined on the basis of the Required Financial Information most
recently delivered to the Administrative Agent and the Lender Parties
as though such merger or consolidation had been consummated as of the
first day of the fiscal period covered thereby and to give effect to
all of the pro forma cost savings of the Borrower and its Subsidiaries
that are to be recognized as a result of such merger or consolidation.
The Borrower shall notify the Administrative Agent of any proposed
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merger or consolidation at least five Business Days prior to the date
on which such merger or consolidation is to be effected and shall
deliver to the Administrative Agent, on behalf of the Lender Parties,
at the time such notice is delivered, a certificate of a Senior
Financial Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the applicable
requirements set forth in the two immediately preceding sentences have
been satisfied or will be satisfied prior to the consummation of the
applicable merger or consolidation and, in the case of any merger or
consolidation proposed to be effected pursuant to clause (iv) of this
Section 5.02(c), that all of the matters described in the provisos to
such clause (iv) have been or will be so satisfied and, in any event,
including a schedule that sets forth in reasonable detail all of the
pro forma cost savings of the Borrower and its Subsidiaries that are to
be realized as a result of such merger or consolidation and all of the
computations used by the Borrower in determining compliance with such
requirements.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any property or assets (including, without
limitation, any Equity Interests), or grant any option or other right
to purchase, lease or otherwise acquire any property or assets, except
that so long as no Default shall have occurred and be continuing at the
time of any of the transactions described in clauses (v), (viii), (ix)
and (x) or would occur as a result thereof:
(i) the Borrower and its Subsidiaries may sell
Inventory in the ordinary course of business;
(ii) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of property and assets in
a transaction otherwise expressly permitted under Section
5.02(a), 5.02(c) (other than clause (v) thereof), 5.02(e) or
5.02(f);
(iii) (A) the Borrower may sell, lease, transfer or
otherwise dispose of any of its property or assets to any of
the Restricted Subsidiaries, (B) any of the Restricted
Subsidiaries may sell, lease, transfer or otherwise dispose of
any of its property or assets to the Borrower or any of the
other Restricted Subsidiaries, (C) any of the Unrestricted
Subsidiaries may sell, lease, transfer or otherwise dispose of
any of its property or assets for Fair Market Value to the
Borrower or any of its Subsidiaries and (D) any of the
Unrestricted Subsidiaries may sell, lease, transfer or
otherwise dispose of any of its property and assets to any of
the Unrestricted Subsidiaries;
(iv) the Borrower and its Subsidiaries may sell any
real property or equipment that is replaced, or the
replacement of which has been commenced and substantially
completed, within 180 days after the date of such sale with
real property or equipment, as the case may be, of equal or
greater value (as determined in good faith by management of
the Borrower); provided, however, that if any such real
property or equipment is not replaced, or the replacement
thereof has not been substantially completed, within such 180
day period, or if at any time during such 180 day period a
Default under Section 6.01(a) or 6.01(f) or an Event of
Default shall have occurred and be continuing, then the Net
Cash Proceeds of such sale shall be applied on the last day of
such period or on the date of such Default or Event of
Default, as the case may be, to reduce the Commitments in
accordance with, and to the extent required under, Section
2.05(b) and to prepay the Advances (and/or to cash
collateralize the Letters of Credit) outstanding at such time
in accordance with, and to the extent required under, Section
2.06(b)(ii);
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(v) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of any obsolete, damaged
or worn out equipment that is no longer useful in the conduct
of their businesses and operations in the ordinary course of
business; provided, however, that in the case of each such
sale, lease, transfer or other disposition of obsolete,
damaged or worn out equipment in which the Borrower and its
Subsidiaries receive total consideration in excess of
$2,000,000, all of the Net Cash Proceeds of such sale, lease,
transfer or other disposition shall be applied on the date of
receipt of such Net Cash Proceeds to reduce the Commitments in
accordance with, and to the extent required under, Section
2.05(b) and to prepay the Advances (and/or to cash
collateralize the Letters of Credit) outstanding at such time
in accordance with, and to the extent required under, Section
2.06(b)(ii);
(vi) leases or subleases of real property of the
Borrower or any of its Subsidiaries to any Person so long as
each such lease or sublease, as the case may be, (A) shall not
interfere in any material respect with the business or
operations of the Borrower or any of the Restricted
Subsidiaries and (B) shall be for consideration in an amount
(determined by reference to the lease payments owing from such
Person on an annual basis) at least equal to the lease
payments, if any, owing from the Borrower or such Subsidiary
on such real property or, if less, to the Fair Market Value of
such lease or sublease at the time such lease or sublease is
created;
(vii) nonexclusive licenses of Patents, Trademarks,
computer software and know-how to customers of the Borrower or
any of its Subsidiaries in the ordinary course of business so
long as (A) the Borrower or such Subsidiary retains and
protects the right to use all or any portion of such Patents,
Trademarks, computer software and know-how to the extent
necessary to properly conduct the business of the Borrower and
its Subsidiaries (in each case as determined by management of
the Borrower in good faith) and (B) each such license shall be
for the Fair Market Value thereof or shall be provided to a
customer of the Borrower or any of its Subsidiaries in
connection with the provision of services in the ordinary
course of business;
(viii) the sale, transfer or other disposition of any
property and assets of the Borrower and its Subsidiaries
within 270 days of the date on which such property and assets
were purchased or otherwise acquired pursuant to Section
5.02(e)(ix); provided that:
(A) the gross proceeds received from any
such sale, lease, transfer or other disposition shall
be at least equal to the Fair Market Value of the
property and assets so sold, transferred or otherwise
disposed of, determined at the time of such sale,
transfer or other disposition;
(B) at least 90% of the value of the
aggregate consideration received from any such sale,
transfer or other disposition shall be in cash and
shall be received within ten Business Days after the
date of consummation of such transaction;
(C) all of the noncash consideration
received in any such sale, transfer or other
disposition shall be pledged as Collateral under, and
in accordance with the terms of, the Collateral
Documents promptly upon receipt thereof; and
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(D) all of the Net Cash Proceeds received in
any such sale, transfer or other disposition shall be
applied on the date of receipt thereof by the
Borrower or any of its Subsidiaries to reduce the
Commitments in accordance with, and to the extent
required under, Section 2.05(b) and to prepay the
Advances (and/or to cash collateralize the Letters of
Credit) outstanding at such time in accordance with,
and to the extent required under, Section
2.06(b)(ii);
(ix) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of property and assets
not otherwise permitted to be sold, leased, transferred or
disposed of pursuant to this Section 5.02(d) so long as the
aggregate Fair Market Value of all of the property and assets
of the Borrower and its Subsidiaries so sold, leased,
transferred or otherwise disposed of pursuant to this clause
(ix) does not exceed $30,000,000; provided that:
(A) the gross proceeds received from any
such sale, lease, transfer or other disposition shall
be at least equal to the Fair Market Value of the
property and assets so sold, leased, transferred or
otherwise disposed of, determined at the time of such
sale, lease, transfer or other disposition;
(B) at least 90% of the value of the
aggregate consideration received from any such sale,
lease, transfer or other disposition shall be in cash
and shall be received within ten Business Days after
the date of consummation of such transaction;
(C) all of the noncash consideration
received in any such sale, lease, transfer or other
disposition shall be pledged as Collateral under, and
in accordance with the terms of, the Collateral
Documents promptly upon receipt thereof; and
(D) all of the Net Cash Proceeds received in
any such sale, lease, transfer or other disposition
shall be applied on the date of receipt thereof by
the Borrower or any of its Subsidiaries to reduce the
Commitments in accordance with, and to the extent
required under, Section 2.05(b) and to prepay the
Advances (and/or to cash collateralize the Letters of
Credit) outstanding at such time in accordance with,
and to the extent required under, Section
2.06(b)(ii); and
(x) the grant of any option or other right to
purchase any property or asset in a transaction that is
otherwise permitted under clause (iv), (v), (viii) or (ix) of
this Section 5.02(d).
(e) Investments in Other Persons. Purchase, acquire, make or
hold, or permit any of its Subsidiaries to purchase, acquire, make or
hold, any Investment in any Person, except:
(i) Investments existing on the Closing Date and
described on Schedule 4.01(ee) hereto;
(ii) Investments in cash and Cash Equivalents;
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(iii) in the case of the Borrower, Investments in
respect of interest rate Hedge Agreements entered into from
time to time after the date of this Agreement with one or more
counterparties that are Lender Parties (or affiliates of
Lender Parties) at the time any such interest rate Hedge
Agreement is entered into in an aggregate notional amount not
to exceed (A) 50% of the aggregate Commitments under all of
the Facilities at the time any such interest rate Hedge
Agreement is entered into less (B) the aggregate notional
amount of any interest rate Hedge Agreements that constitute
Indebtedness incurred under Section 5.02(b)(i)(D) and
outstanding at such time; provided that all such interest rate
Hedge Agreements shall be nonspeculative in nature (including,
without limitation, with respect to the term and purpose
thereof);
(iv) Investments by (A) the Borrower in any of the
Restricted Subsidiaries, (B) any of the Subsidiaries of the
Borrower in the Borrower or any of the Restricted Subsidiaries
and (C) any of the Unrestricted Subsidiaries in any of the
other Unrestricted Subsidiaries;
(v) Investments by the Borrower and its Subsidiaries
in account debtors received in connection with the bankruptcy
or reorganization, or in settlement of the delinquent
obligations of financially troubled suppliers or customers, in
the ordinary course of business and in accordance with
applicable collection and credit policies established by the
Borrower or such Subsidiary, as the case may be;
(vi) loans and advances by the Borrower and its
Subsidiaries to their respective employees in an aggregate
amount not to exceed $4,750,000 at any time outstanding;
(vii) the acceptance of promissory notes, contingent
payment obligations and other noncash consideration received
as partial payment of the purchase price of any property or
assets sold, leased, transferred or otherwise disposed of in
accordance with Sections 5.02(d)(viii) and 5.02(d)(ix);
(viii) the assumption of Indebtedness of any Person
existing at the time that all or substantially all of the
property and assets of such Person are purchased or otherwise
acquired by the Borrower or any of its Subsidiaries, or that
such Person is merged into or consolidated with any of the
Subsidiaries of the Borrower, or becomes a Subsidiary of the
Borrower; provided that such Indebtedness is otherwise
expressly permitted to be incurred under Section
5.02(b)(ii)(I) and such purchase or other acquisition or such
merger, consolidation or acquisition is otherwise not
prohibited under the terms of the Loan Documents; and
(ix) the purchase or other acquisition of all of the
Equity Interests in, or all or substantially all of the
property and assets of, any Person that, upon the consummation
thereof, will be owned directly by the Borrower or any of the
Restricted Subsidiaries or will be a Restricted Subsidiary
(including, without limitation, as a result of a merger or
consolidation) with or into a Restricted Subsidiary, with the
surviving entity being a Restricted Subsidiary); provided
that, with respect to each purchase or other acquisition made
pursuant to this clause (ix):
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(A) any newly created or acquired Restricted
Subsidiary shall comply with the requirements of
Sections 5.01(k) and 5.02(k);
(B) the lines of business of the Person to
be (or the property and assets of which are to be) so
purchased or otherwise acquired shall be
substantially the same lines of business as one or
more of the principal businesses of the Borrower and
its Subsidiaries in the ordinary course;
(C) such purchase or other acquisition shall
not include or result in any contingent liabilities
that could reasonably be expected to be material to
the business, financial condition, operations or
prospects of the Borrower and its Subsidiaries, taken
as a whole (as determined in good faith by the board
of directors (or the persons performing similar
functions) of the Borrower or such Subsidiary if the
board of directors is otherwise approving such
transaction and, in each other case, by a Senior
Financial Officer);
(D) the total cash and noncash consideration
(including, without limitation, the Fair Market Value
of all Equity Interests issued or transferred to the
sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate
amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and
assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and
other obligations in connection therewith) paid by or
on behalf of the Borrower and its Subsidiaries for
any such purchase or other acquisition, when
aggregated with the total cash and noncash
consideration paid by or on behalf of the Borrower
and its Subsidiaries for all other purchases and
other acquisitions made by the Borrower and its
Subsidiaries pursuant to this clause (ix), shall not
exceed the sum of (1) $25,000,000, (2) the aggregate
amount of all Permitted Affiliate Investments made in
connection with all such purchases and other
acquisitions pursuant to this clause (ix) at or prior
to the time of such purchase or other acquisition and
(3) an amount equal to the aggregate amount of all
Net Cash Proceeds received from the prior sale,
lease, transfer or other disposition of property and
assets purchased or otherwise acquired by the
Borrower and its Subsidiaries pursuant to this clause
(ix) in accordance with the terms of Section
5.02(d)(viii);
(E) (1) immediately before and immediately
after giving pro forma effect to any such purchase or
other acquisition, no Default shall have occurred and
be continuing and (2) immediately after giving effect
to such purchase or other acquisition, the Borrower
and its Subsidiaries shall be in pro forma compliance
with all of the covenants set forth in Section 5.04,
such compliance to be determined on the basis of the
Required Financial Information most recently
delivered to the Administrative Agent and the Lender
Parties as though such purchase or other acquisition
had been consummated as of the first day of the
fiscal period covered thereby and to give effect to
all of the pro forma cost savings of the Borrower and
its Subsidiaries that are to be recognized as a
result of such purchase or other acquisition; and
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(F) the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lender
Parties, at least five Business Days prior to the
date on which any such purchase or other acquisition
is to be consummated, a certificate of a Senior
Financial Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying
that all of the requirements set forth in this clause
(ix) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other
acquisition (and including a schedule that sets forth
in reasonable detail all of the pro forma cost
savings of the Borrower and its Subsidiaries that are
to be recognized as a result of such purchase or
other acquisition and all of the computations used by
the Borrower in determining compliance with such
requirements); and
(x) Investments by the Borrower and its Subsidiaries
not otherwise permitted under this Section 5.02(e) in an
aggregate amount not to exceed the sum of (A) $15,000,000 and
(B) the aggregate amount of all Permitted Affiliate
Investments made in connection with all such Investments
pursuant to this clause (x) at or prior to the time of such
Investment; provided that, with respect to each Investment
made pursuant to this clause (x):
(1) such Investment shall not include or
result in any contingent liabilities that could
reasonably be expected to be material to the
business, financial condition, operations or
prospects of the Borrower and its Subsidiaries, taken
as a whole (as determined in good faith by the board
of directors (or persons performing similar
functions) of the Borrower or such Subsidiary if the
board of directors is otherwise approving such
transaction and, in each other case, by a Senior
Financial Officer);
(2) such Investment shall be in property and
assets which are part of, or in lines of business
which are, substantially the same lines of business
as one or more of the principal businesses of the
Borrower and its Subsidiaries in the ordinary course;
(3) any determination of the amount of such
Investment shall include all cash and noncash
consideration (including, without limitation, the
Fair Market Value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities,
earnouts and other contingent payment obligations to,
and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs
of property and assets and reserves for liabilities
with respect thereto and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf of the Borrower and
its Subsidiaries in connection with such Investment;
and
(4) immediately before and immediately after
giving pro forma effect to any such purchase or other
acquisition, no Default shall have occurred and be
continuing.
(f) Restricted Payments. Declare or pay any dividends on, or
purchase, redeem, retire, defease or otherwise acquire for value, any
of its Equity Interests, now or hereafter outstanding, return any
capital to its stockholders, partners or members (or the equivalent
Persons thereof) as
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such, make any distribution of property, assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such, or issue or sell any Equity
Interests therein or accept any capital contributions, or permit any of
its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Interests in the Borrower, or to issue or sell any
of its Equity Interests in order to acquire such Equity Interests,
except that so long as no Default shall have occurred and be continuing
at the time of any of the transactions described in clauses (iv), (v)
(vi) or (vii) or would occur as a result thereof:
(i) the Borrower may consummate the
Recapitalization;
(ii) the Borrower may issue and sell the Warrants to
the purchasers of the Senior Subordinated Notes in accordance
with the terms of the Senior Subordinated Notes Documents, and
may issue and sell UIC Common Stock to the purchasers of the
Senior Subordinated Notes upon the exercise of any of the
Warrants in accordance with the terms of the Senior
Subordinated Notes Documents;
(iii) the Borrower may declare and make dividends and
other distributions on its outstanding Equity Interests
payable in UIC Common Stock or, solely in the case of the
Permitted Preferred Stock, payable in additional shares of
Permitted Preferred Stock;
(iv) the Borrower may issue and sell additional UIC
Common Stock so long as (A) the gross proceeds received from
any such issuance and sale are at least equal to the Fair
Market Value of the shares being so issued and sold,
determined at the time of such issuance and sale, (B) either
(1) all of the consideration received from any such issuance
and sale shall be in cash or (2) such UIC Common Stock shall
be issued and transferred as part of the noncash consideration
paid for the purchase or other acquisition by the Borrower or
any of its Subsidiaries of Equity Interests in, or property
and assets of, another Person in a transaction otherwise
permitted under Section 5.02(e)(ix) and (C) such issuance and
sale would not result in a Change of Control;
(v) the Borrower may issue and sell Permitted
Preferred Stock so long as (A) the gross proceeds received
from any such issuance and sale are at least equal to the Fair
Market Value of the shares being so issued and sold,
determined at the time of such issuance and sale, and (B) all
of the consideration received from such sale shall be in cash;
(vi) the Borrower may issue and sell UIC Common
Stock, or warrants, rights or options to acquire UIC Common
Stock, to one or more executives and managers of the Borrower
and its Subsidiaries under any stock option plan or stock
purchase plan adopted by the Borrower and its Subsidiaries so
long as (A) the aggregate number of shares of UIC Common Stock
so issued and sold (or subject to all warrants, rights and
options so issued and sold) does not exceed 10% of the
outstanding UIC Common Stock on the date of the related
issuance and sale (on a fully diluted basis) and (B) the
purchase price for any UIC Common Stock so issued and sold, or
the exercise price for any warrants, rights or options so
issued and sold, shall not be less than the Fair Market Value
of the UIC Common Stock on the date of the issuance of such
UIC Common Stock or such warrants, rights or options, as the
case may be, and shall be paid in cash or with a loan or
advance from the Borrower or its applicable Subsidiary
otherwise permitted under Section 5.02(e)(vi);
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(vii) the Borrower may redeem or repurchase UIC
Common Stock, or warrants, rights or options to acquire UIC
Common Stock, owned by retired, terminated, deceased or
departing executives or managers of the Borrower or any of its
Subsidiaries so long as the aggregate amount paid by the
Borrower and its Subsidiaries for all such redemptions and
repurchases shall not exceed the sum of (A) $5,000,000 and (B)
the aggregate amount of all Permitted Affiliate Investments
made in connection with all such redemptions and repurchases
pursuant to this clause (vii) at or prior to the time of such
redemption or repurchase;
(viii) (A) the Borrower may accept capital
contributions from the Equity Investors (and issue and sell
additional UIC Common Stock and Permitted Preferred Stock to
the applicable Equity Investors in consideration thereof) and
(B) any of the Subsidiaries of the Borrower may accept capital
contributions from their respective equity holders (and issue
and sell additional common Equity Interests therein to their
applicable equity holders in consideration thereof) so long as
such capital contribution is not otherwise prohibited under
Section 5.02(e);
(ix) (A) any of the Subsidiaries of the Borrower may
declare and pay or make dividends and other distributions in
cash or in additional common Equity Interests therein, or
issue or sell additional Equity Interests therein, to the
Borrower or any of the Restricted Subsidiaries; provided that
such additional common Equity Interests shall, to the extent
required under the terms of the applicable Collateral
Documents, be pledged as Collateral thereunder to the
Administrative Agent, on behalf of the Secured Parties,
immediately upon the issuance thereof and (B) any of the
Unrestricted Subsidiaries may declare and make dividends and
other distributions to any of the other Unrestricted
Subsidiaries; and
(x) any of the non-wholly owned Subsidiaries of the
Borrower may declare and pay or make dividends and other
distributions, and may issue and sell additional common Equity
Interests therein, to its shareholders, partners or members
(or the equivalent persons thereof) generally so long as the
Borrower and each of the Restricted Subsidiaries that own any
of the Equity Interests therein receive at least their
respective proportionate shares of any such dividend,
distribution or issuance of common Equity Interests (based
upon their relative holdings of the Equity Interests therein
and taking into account the relative preferences, if any, of
the various classes of the Equity Interests therein).
(g) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate amount of all such Capital Expenditures made by the Borrower
and its Subsidiaries during any Fiscal Year to exceed $5,000,000;
provided, however, that if, at the end of any Fiscal Year, the
aggregate amount of all Capital Expenditures made by the Borrower and
its Subsidiaries during such Fiscal Year is less than $5,000,000 (the
amount of such difference being the "Carryover Capital Expenditure
Amount"), then, notwithstanding the foregoing provision of this Section
5.02(g), the Borrower and its Subsidiaries shall be permitted to make
additional Capital Expenditures during the next succeeding two Fiscal
Years in an amount not to exceed the Carryover Capital Expenditure
Amount, if any, from such Fiscal Year; provided further, however, that
any Carryover Capital Expenditure Amount carried forward to the next
two succeeding Fiscal Years shall be deemed to have been utilized to
make Capital Expenditures prior to the utilization of the amount set
forth above in this Section 5.02(g) for Capital Expenditures permitted
to be made in such Fiscal Year, and may not be carried forward to any
subsequent Fiscal
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Years; and provided further, however, that (i) the Borrower shall be
permitted to make additional Capital Expenditures during the Fiscal
Year ending December 31, 1999 comprised solely of Indebtedness assumed
or incurred thereby for the Capitalized Lease set forth in, and
otherwise permitted under, Section 5.02(b)(ii)(E)(1) and (ii) no
Capital Expenditures shall be made by the Borrower or any of its
Subsidiaries on or after December 31, 2005 unless the Borrower and its
Subsidiaries have (and then only to the extent of) any Carryover
Capital Expenditure Amount from the two immediately preceding Fiscal
Years.
(h) Prepayments, Etc. of Indebtedness. (i) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Indebtedness other than:
(A) the prepayment of Advances outstanding from time
to time in accordance with the terms of this Agreement;
(B) so long as no Default under Section 6.01(a) or
6.01(f) or Event of Default shall have occurred and be
continuing or shall occur as a result thereof, any regularly
scheduled or required redemption, repurchase or repayment of
Surviving Indebtedness;
(C) the satisfaction of any Indebtedness incurred
under Section 5.02(b)(ii)(D) or 5.02(b)(ii)(E) that is secured
by a Lien on the property or assets of the Borrower or any of
its Subsidiaries that incurred such Indebtedness, which
property or assets are otherwise permitted to be disposed of
under Section 5.02(d);
(D) the regularly scheduled payment or required
prepayment of any Indebtedness that is refunded, refinanced or
replaced in accordance with Section 5.02(b)(ii)(L);
(E) the prepayment, redemption, purchase, defeasance
or other satisfaction of Indebtedness of any Person existing
at the time such Person is purchased or otherwise acquired by
the Borrower or any of its Subsidiaries to the extent that
such prepayment, redemption, purchase, defeasance or other
satisfaction is required by the terms of such Indebtedness
(and not created in contemplation of the purchase or other
acquisition of such Person by the Borrower or its applicable
Subsidiary); provided that the purchase or other acquisition
of such Person is otherwise expressly permitted under the
terms of the Loan Documents; and
(F) so long as no Default under Section 6.01(a) or
6.01(f) or Event of Default shall have occurred and be
continuing or shall occur as a result thereof, the prepayment,
redemption, purchase, defeasance or other satisfaction of
Indebtedness of the Borrower or any of its Subsidiaries (other
than the Senior Subordinated Notes) (1) if the Performance
Level at the time of such prepayment, redemption, purchase,
defeasance or other satisfaction is Performance Level I or
Performance Level II, with any Excess Cash Flow that, under
the terms of this Agreement, is available to the Borrower from
one or more prior Fiscal Years and (2) if the Performance
Level is Performance Level III or Performance Level IV, with
up to $5,000,000 of the aggregate amount of Excess Cash Flow
that, under the terms of this Agreement, is available to the
Borrower from one or more prior Fiscal Years;
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(ii) Amend, modify or change in any manner any of the terms or
conditions of any of the Surviving Indebtedness, the Senior
Subordinated Notes Documents or the Permitted Preferred Stock
Documents, except (A) as could not adversely affect the rights or
interests of the Lender Parties or (B) as otherwise expressly permitted
under Section 5.02(b)(ii)(L); or
(iii) Permit any of its Subsidiaries to do any of the
foregoing, other than to prepay any Indebtedness payable to the
Borrower or, subject to the terms of the Pledged Indebtedness, the
Restricted Subsidiaries.
(i) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than:
(i) any such agreement with or in favor of the
Secured Parties or the Administrative Agent, on behalf of the
Secured Parties;
(ii) any such agreement with or in favor of the
holders of the Senior Subordinated Notes or the trustee for
the Senior Subordinated Notes, on behalf of the holders
thereof, in each case as such agreement was in effect under
the Note Purchase Agreement on the Closing Date;
(iii) in connection with (A) any Surviving
Indebtedness to the extent such agreement is in effect on the
Closing Date, (B) any Indebtedness otherwise permitted to be
incurred under Section 5.02(b)(ii)(L) to the extent such
agreement is on terms that are no less favorable to the
Borrower or any of its Subsidiaries or to the Lender Parties
than the terms in effect for the Indebtedness being refunded,
refinanced or replaced immediately prior to effecting such
refunding, refinancing or replacement and (C) any Indebtedness
outstanding on the date any Person first becomes a Subsidiary
of the Borrower; provided that such agreement was not created
in contemplation of the purchase or other acquisition of such
Person and does not extend to or cover any property or assets
other than property and assets of the Person becoming such
Subsidiary;
(iv) any such agreement prohibiting other
encumbrances on specific property and assets of the Borrower
or any of its Subsidiaries, which agreement secures the
payment of Indebtedness incurred solely to acquire, construct
or improve such property or assets or to finance the purchase
price therefor (including, without limitation, Capitalized
Leases) and which Indebtedness is otherwise permitted to be
incurred under the terms of this Agreement;
(v) any such agreement with or in favor of the
holders of the Indebtedness of one or more of the Foreign
Subsidiaries (or any agent for the holders of such
Indebtedness) incurred pursuant to Section 5.02(b)(ii)(H);
(vi) any agreement setting forth customary
restrictions on the subletting, assignment or transfer of any
property or asset that is a lease, license, conveyance or
contract of similar property or assets; and
(vii) any restriction or encumbrance imposed pursuant
to an agreement that has been entered into by the Borrower or
any of its Subsidiaries for the sale, lease, transfer or
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other disposition of any of its property or assets so long as
such sale, lease, transfer or other disposition is otherwise
permitted to be made under Section 5.02(d).
(j) Dividends and Other Payment Restrictions Affecting
Subsidiaries. Enter into, create, assume or otherwise suffer to exist
or become effective, or permit any of its Subsidiaries to enter into,
create, assume or otherwise suffer to exist or become effective,
directly or indirectly, any encumbrance or restriction of any kind on
the ability of any of its Subsidiaries (i) to pay dividends or to make
any other distributions on any of the Equity Interests in such
Subsidiary owned or otherwise held by the Borrower or any of its
Subsidiaries, (ii) to repay or prepay or to subordinate any
Indebtedness owed to the Borrower or any of its Subsidiaries, (iii) to
make loans or advances to the Borrower or any of its Subsidiaries, (iv)
to transfer any of its property or assets to the Borrower or any of its
Subsidiaries or (v) to otherwise make Investments in the Borrower or
any of its Subsidiaries (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise); provided, however, that nothing in any of clauses (i)
through (iv) of this Section 5.02(j) shall prohibit or restrict:
(A) this Agreement and the other Loan Documents;
(B) any agreements in effect on the Closing Date and
described on Schedule 5.02(j) hereto;
(C) any applicable law, rule or regulation
(including, without limitation, applicable currency control
laws and applicable state corporate statutes restricting the
payment of dividends in certain circumstances) or Governmental
Authorization;
(D) in the case of clause (iv) of this Section
5.02(j), any agreement setting forth customary restrictions on
the subletting, assignment or transfer of any property or
asset that is a lease, license, conveyance or contract of
similar property or assets;
(E) in the case of clause (iv) of this Section
5.02(j), any agreement with the holder of a Lien otherwise
permitted to exist under Section 5.02(a)(iv) or 5.02(a)(v)
restricting on customary terms the transfer of any property or
assets subject thereto;
(F) any such agreement with or in favor of the
holders of the Indebtedness of one or more of the Foreign
Subsidiaries (or any agent for the holders of such
Indebtedness) incurred pursuant to Section 5.02(b)(ii)(H);
provided that any such restrictions set forth therein shall
not apply to any of the Loan Parties or any of their
Subsidiaries (other than one or more of the Foreign
Subsidiaries);
(G) any agreement evidencing Indebtedness outstanding
on the date a Person first becomes a Subsidiary of the
Borrower; provided that such agreement was not created in
contemplation of the purchase or other acquisition of such
Person by the Borrower or any of its Subsidiaries and does not
extend to or cover any property or assets other than the
property or assets of the Person becoming such Subsidiary;
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(H) any agreement evidencing or setting forth the
terms of any refunding, refinancing or replacement
Indebtedness otherwise permitted to be incurred under Section
5.02(b)(ii)(L) that contains any such restrictions to the
extent such restrictions are no less favorable to the Borrower
or any of its Subsidiaries or to the Lender Parties than the
terms in effect in the Indebtedness being so refunded,
refinanced or replaced immediately prior to such refunding,
refinancing or replacement; and
(I) any agreement that has been entered into by the
Borrower or any of its Subsidiaries for the sale, lease,
transfer or other disposition of any of its property or assets
so long as such sale, lease, transfer or other disposition is
otherwise permitted to be made under Section 5.02(d).
(k) New Subsidiaries. Create, organize, incorporate or acquire
any Subsidiary (each a "New Subsidiary"), or permit any of its
Subsidiaries to create, organize, incorporate or acquire any New
Subsidiary, unless:
(i) either (A) such New Subsidiary constitutes a
Restricted Subsidiary or (B) if such New Subsidiary does not
constitute a Restricted Subsidiary, all Investments necessary
for the creation, organization, incorporation or acquisition
of such New Subsidiary are otherwise permitted to be made
pursuant to Section 5.02(e)(x);
(ii) the Administrative Agent shall have approved the
legal structure (if other than a corporation, limited
partnership or limited liability company organized under the
laws of any state of the United States of America) and
capitalization of such New Subsidiary, such approval not to be
unreasonably withheld or delayed;
(iii) such New Subsidiary shall execute and deliver
to the Administrative Agent, on behalf of the Secured Parties,
promptly following the date of its creation, organization,
incorporation or acquisition, (A) if such New Subsidiary
constitutes a Restricted Subsidiary, either a guarantee, in
substantially the form of Exhibit I hereto (together with each
Guarantee Supplement, in each case as amended, supplemented or
otherwise modified hereafter from time to time in accordance
with the terms thereof and Section 8.01, the "Subsidiaries
Guarantee") or a Guarantee Supplement, a Security Agreement
Supplement and, if necessary or in the reasonable opinion of
the Administrative Agent desirable to properly create and
perfect a lien and security interest in the Equity Interests
in, or the property and assets of, such New Subsidiary, one or
more other mortgages, security agreements or pledge agreements
(or other similar documents), in each case in form and
substance reasonably satisfactory to the Lender Parties, all
duly executed by such New Subsidiary, (B) if such New
Subsidiary constitutes a Foreign Corporation, such
documentation as may be necessary or in the reasonable opinion
of the Administrative Agent desirable to properly create and
perfect a lien and security interest in the Equity Interests
of such Foreign Corporation referred to in clause (v) of this
Section 5.02(k), duly executed by such New Subsidiary and (C)
in each case, such other agreements, instruments, certificates
or documents as the Administrative Agent may reasonably
request, in each case in form and substance reasonably
satisfactory to the Lender Parties;
(iv) if such New Subsidiary constitutes a Restricted
Subsidiary, such New Subsidiary and the owners of all of the
Equity Interests therein shall have taken or shall take
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all of the other actions that may be necessary or that the
Administrative Agent may reasonably deem desirable in order
(A) to perfect and protect any Liens granted under the
Security Agreement, the Security Agreement Supplement and the
other mortgages, security agreements and pledge agreements
referred to in Section 5.01(k) and clause (iii) of this
Section 5.02(k) and (B) to enable the Administrative Agent and
the Lender Parties to exercise and enforce their rights and
remedies under the Loan Documents;
(v) if such New Subsidiary constitutes a Foreign
Corporation, such New Subsidiary and the Borrower and each of
the Restricted Subsidiaries that own any of the Equity
Interests therein shall have taken or shall take all of the
other actions that may be necessary or that the Administrative
Agent may reasonably deem desirable in order to perfect and
protect any Liens granted or intended to be granted under the
Collateral Documents in 66% of the Equity Interests in such
New Subsidiary entitled to vote (within the meaning of
Treasury Regulation Section 1.956-2(c)(2) promulgated under
the Internal Revenue Code) (the "Voting Equity Interests") (on
a fully diluted basis) or, if less, all of the Voting Equity
Interests in such New Subsidiary owned by the Borrower and/or
the Restricted Subsidiaries, and all of the Equity Interests
in such New Subsidiary not entitled to vote (within the
meaning of Treasury Regulation Section 1.956-2(c)(2)
promulgated under the Internal Revenue Code) now or hereafter
owned by the Borrower and/or the Restricted Subsidiaries;
provided, however, that, if as a result of any changes in the
tax laws of the United States of America after the date of
this Agreement the pledge by the Borrower or any of its
Subsidiaries of any additional Equity Interests in such New
Subsidiary to the Administrative Agent, on behalf of the
Secured Parties, would not result in an increase in the
aggregate net consolidated tax liabilities of the Borrower and
its Subsidiaries, then, promptly after the changes in such
laws, all such additional Equity Interests shall be pledged to
the Administrative Agent, on behalf of the Secured Parties,
pursuant to the terms and conditions of the Collateral
Documents and/or one or more additional pledge agreements (or
other similar documents), in form and substance reasonably
acceptable to the Lender Parties; and
(vi) upon the reasonable request of the
Administrative Agent, signed copies of one or more favorable
opinions of special and appropriate local and/or foreign
counsel for such New Subsidiary and, if appropriate, counsel
for each of the owners of the Equity Interests therein as the
Administrative Agent shall reasonably request, addressed to
the Administrative Agent, on behalf of the Secured Parties,
and reasonably acceptable to the Administrative Agent and each
of the other Secured Parties, as to the Subsidiaries Guarantee
or the Guarantee Supplement, as the case may be, the Security
Agreement Supplement and, if applicable, one or more other
mortgages, security agreements, pledge agreements, assignment
agreements (or other similar documents) referred to in clause
(ii) of this Section 5.02(k) being the legal, valid and
binding obligations of such New Subsidiary or such owners of
the Equity Interests therein, as the case may be, enforceable
against such New Subsidiary or each such owner in accordance
with their respective terms, as to the creation, perfection
and priority of the liens and security interests created or
purported to be created therein, as to the choice of New York
law being recognized in the courts of the jurisdiction in
which such New Subsidiary is organized and as such other
matters as the Administrative Agent, or any of the Lenders
through the Administrative Agent, may reasonably request.
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(l) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any change in the nature of its business that
would cause the Borrower or such Subsidiary to no longer be primarily
engaged in one or more of the businesses engaged in by the Borrower and
its Subsidiaries on the date of this Agreement.
(m) Amendments to Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its Constitutive Documents, except where
such amendment, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect or to
adversely affect the rights or interests of the Lender Parties;
provided that copies of any such amendment to the Constitutive
Documents of the Borrower or any such Subsidiary shall be delivered to
the Administrative Agent at least three Business Days prior to the date
on which such amendment is intended to become effective.
(n) Accounting Changes, Etc. Make or permit, or permit any of
its Subsidiaries to make or permit, any change in (i) its accounting
policies or reporting practices, except as required by GAAP in effect
at the time of such change or by applicable Requirements of Law, or
(ii) its Fiscal Year.
(o) Amendments, Etc. of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any
Related Document, or take any other action in connection with any
Related Document that, in each of the foregoing cases under this
Section 5.02(o), either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or permit any
of its Subsidiaries to do any of the foregoing; provided, however,
that, notwithstanding the foregoing provisions of this Section 5.02(o),
no amendment, modification or change of any term or condition of (i)
any of the Related Documents, and no consent, waiver or approval
thereunder, shall be given on or prior to the Closing Date without the
prior written consent of all of the Lender Parties and (ii) Sections
2.1, 8.1 and 8.3 of the Recapitalization Agreement, Section 3 of the
Reorganization Agreement or any of the terms of the THL Subordination
Agreement shall be made at any time without the prior written consent
of the Required Lenders.
(p) Partnerships, Etc. Be or become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in one or more of such partnerships or
joint ventures.
(q) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
SECTION 5.03. Reporting Requirements. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents (other than any such Obligations of any of the Loan
Parties under Section 2.10, 2.12 or 8.04 (or other similar provisions of the
other Loan Documents that are specified under the terms thereof to survive the
payment in full of such other Obligations under or in respect of the Loan
Documents) to the extent no demand or claim thereunder has been made) shall
remain unpaid, any of the Letters of Credit shall remain outstanding or any of
the Lender
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Parties shall have any Commitment hereunder, the Borrower will furnish to the
Administrative Agent and the Lender Parties:
(a) Default Notices. As soon as possible and in any event
within three Business Days after the occurrence of each Default or any
event, development or occurrence that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect continuing on the date of such statement, a statement of a
Responsible Officer of the Borrower setting forth the details of such
Default or such event, development or occurrence (including, without
limitation, the anticipated effect thereof), the period of time such
Default or such event, development or occurrence has existed and been
continuing and the action that the Borrower has taken and/or proposes
to take with respect thereto.
(b) Monthly Financials. During the period commencing on the
Closing Date and ending on May 20, 1999 (or such later date as the
Borrower agrees to continue to deliver monthly financial information to
the holders of the Senior Subordinated Notes), as soon as available and
in any event within 30 days after the end of the first two months of
each Fiscal Quarter, a Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such month and Consolidated
statements of income, stockholders' equity and cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous month and ending with the end of such month and for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such month, setting forth in comparative form, in the
case of each such Consolidated balance sheet, the corresponding figures
as of the last day of the corresponding month in the immediately
preceding Fiscal Year and, in the case of each such Consolidated
statement of income, stockholders' equity and cash flows, the
corresponding figures for the corresponding month in the immediately
preceding Fiscal Year, all in reasonable detail, together with a
certificate of a Senior Financial Officer, in form and substance
reasonably satisfactory to the Administrative Agent, duly certifying
that, subject to the absence of footnote disclosure and normal year-end
audit adjustments, (i) the Consolidated financial statements of the
Borrower and its Subsidiaries delivered with such certificate fairly
present in all material respects the Consolidated financial condition
of the Borrower and its Subsidiaries as of the last day of such month
and the Consolidated results of operations and cash flows of the
Borrower and its Subsidiaries for the month ended on such date and (ii)
the Consolidated financial statements of the Borrower and its
Subsidiaries delivered with such certificate have been prepared in
accordance with GAAP (or a reconciliation statement has been delivered
together therewith conforming such Consolidated financial statements to
GAAP).
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and
Consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for the period commencing at the
end of the previous Fiscal Quarter and ending with the end of such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, setting
forth in comparative form, in the case of each such Consolidated
balance sheet, the corresponding figures as of the last day of the
corresponding period in the immediately preceding Fiscal Year and, in
the case of each such Consolidated statement of income, stockholders'
equity and cash flows, the corresponding figures for the corresponding
period in the immediately preceding Fiscal Year, all in reasonable
detail.
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(d) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such Fiscal Year for the Borrower and its
Subsidiaries, including therein the Consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and
Consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for such Fiscal Year, accompanied
by an unqualified opinion or an opinion otherwise reasonably acceptable
to the Required Lenders of PriceWaterhouseCoopers LLP or other
independent public accountants of nationally recognized standing,
setting forth in comparative form, in the case of each such
Consolidated balance sheet, the corresponding figures as of the last
day of the immediately preceding Fiscal Year, and, in the case of each
such Consolidated statement of income, stockholders' equity and cash
flows, the corresponding figures for the corresponding period in the
immediately preceding Fiscal Year, together with (i) either (A) a
letter from PriceWaterhouseCoopers LLP or such independent public
accountants of nationally recognized standing stating that, in the
course of their regular audit of the Consolidated financial statements
of the Borrower and its Subsidiaries, which audit was conducted by such
accountants in accordance with generally accepted auditing standards,
such accountants have not obtained any knowledge that a Default has
occurred and is continuing or if, in the opinion of such accountants, a
Default has occurred and is continuing, a statement as to the status
and nature thereof or (B) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, the amount of Excess
Cash Flow, if any, for such Fiscal Year and compliance with the
covenants contained in Sections 5.02(g) and 5.04 (including with
respect to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Section, and the calculation of the
amount, ratio or percentage then in existence) and (ii) in the event of
any change in the generally accepted accounting principles used by such
accountants in the preparation of the Consolidated financial statements
of the Borrower and its Subsidiaries referred to above in this Section
5.03(d) from GAAP, such accountants shall also provide a reasonably
detailed description of such changes and, if and to the extent
necessary for the determination of compliance with Section 5.02(g) or
5.04, a statement of reconciliation conforming such Consolidated
financial statements to GAAP.
(e) Compliance Certificate. Together with each delivery to the
Administrative Agent and Lender Parties of the Consolidated financial
statements of the Borrower and its Subsidiaries referred to in Sections
5.03(c) and 5.03(d), a certificate of a Senior Financial Officer, in
form and substance reasonably satisfactory to the Administrative Agent:
(i) duly certifying that, subject, in the case of any
such Consolidated financial statements delivered to the
Administrative Agent and the Lender Parties pursuant to
Section 5.03(c), to the absence of footnote disclosure and
normal year-end audit adjustments, (A) the Consolidated
financial statements of the Borrower and its Subsidiaries
delivered with such certificate fairly present in all material
respects the Consolidated financial condition of the Borrower
and its Subsidiaries as of the last day of such Fiscal Quarter
or such Fiscal Year, as the case may be, and the Consolidated
results of operations and cash flows of the Borrower and its
Subsidiaries for the Fiscal Quarter or the Fiscal Year ended
on such date and (B) the Consolidated financial statements of
the Borrower and its Subsidiaries delivered with such
certificate have been prepared in accordance with GAAP (or a
reconciliation statement has been delivered together therewith
conforming such Consolidated financial statements to GAAP);
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(ii) duly certifying that no Default has occurred and
is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof, the period of time such
Default has existed and been continuing and the action that
the Borrower has taken and/or proposes to take with respect
thereto;
(iii) setting forth a schedule of the computations
used by the Borrower in determining compliance with the
covenants contained in Sections 5.02(g) and 5.04 (including
with respect to each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of
such Section, and the calculation of the amount, ratio or
percentage then in existence) and, in the case of any such
Consolidated financial statements delivered to the
Administrative Agent and the Lender Parties pursuant to
Section 5.03(d), the amount of Excess Cash Flow for the Fiscal
Year covered thereby; and
(iv) in the case of any such Consolidated financial
statements delivered to the Administrative Agent and the
Lender Parties pursuant to Section 5.03(c), setting forth (A)
a description in reasonable detail of all of the changes in
the generally accepted accounting principles applied in the
preparation of such financial statements from GAAP and (B) a
statement of reconciliation, if and to the extent necessary
for determining whether any of the changes in the generally
accepted accounting principles applied in the preparation of
such financial statements would affect the calculation of, or
compliance with, Sections 5.02(g) or 5.04, conforming such
Consolidated financial statements to GAAP.
(f) Forecasts. As soon as available and in any event at least
ten days prior to the first day of each Fiscal Year, commencing with
the Fiscal Year ending December 31, 1999, Consolidated forecasts
prepared by management of the Borrower of balance sheets and statements
of income, stockholders' equity and cash flows on a quarterly basis for
such Fiscal Year, in the form of the forecasts delivered by the
Borrower pursuant to Section 3.01(k)(xiii)(D) or otherwise in a form
reasonably satisfactory to the Administrative Agent and setting forth
in comparative form the corresponding figures for the immediately
preceding Fiscal Year.
(g) Schedule Updates. Promptly and in any event within 30 days
of the end of each Fiscal Quarter and together with any amendment,
waiver or other modification of any of the Loan Documents, amendments
and supplements to Schedules 4.01(dd) and 4.01(ee) to this Agreement,
Schedules III and IV to the Security Agreement and such other Schedules
to any of the Loan Documents as the Administrative Agent shall
reasonably request, in each case so as to ensure that, at the time of
the delivery of such amendments and supplements, such Schedules are
accurate and complete as to the subject matter thereof.
(h) Accountants' Letters, Etc. Promptly upon receipt thereof,
copies of all "management letters" submitted to the Borrower or any of
its Subsidiaries by any independent public accountants of the Borrower
or any of its Subsidiaries in connection with each annual audit of its
financial statements made by such accountants.
(i) Licenses, Etc. Promptly and in any event within five
Business Days after receipt thereof, notice of any actual, pending or
threatened suspension, termination or revocation of any of the
Governmental Authorizations of any of the Loan Parties or any of their
Subsidiaries that is necessary to own or lease and operate their
respective property and assets and to conduct their
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respective businesses as now conducted and as proposed to be conducted,
or any enjoinment, barring or suspension of the ability of any Loan
Party or any such Subsidiary to conduct any of its businesses in the
ordinary course.
(j) Litigation. Promptly and in any event within five Business
Days after the commencement thereof, notice of all actions, suits,
investigations, litigation, arbitrations and proceedings against or
affecting any of the Loan Parties or any of their Subsidiaries or any
of the property or assets thereof in any court or before any arbitrator
or by or before any Governmental Authority of any kind (i) in which
there is a reasonable likelihood of an adverse determination and that,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect (other than the Disclosed Litigation)
or (ii) that could reasonably be expected to adversely affect the
legality, validity, binding effect or enforceability of any aspect of
the Transaction, any of the Loan Documents or the Related Documents or
any of the other transactions contemplated thereby; and promptly after
the occurrence thereof, notice of any adverse change in the status, or
in the reasonably anticipated financial effect on the Borrower or any
of its Subsidiaries, of any such action, suit, investigation,
litigation, arbitration or proceeding or of any of the Disclosed
Litigation (and, in each case, upon the reasonable request of the
Administrative Agent, any other information available to any of the
Loan Parties or any of their Subsidiaries with respect to any of the
foregoing that would enable the Administrative Agent and the Lender
Parties to more fully evaluate such action, suit, investigation,
litigation, arbitration or proceeding, unless the applicable Loan Party
or Subsidiary of a Loan Party is precluded from disclosing any such
report or statement pursuant to a confidentiality agreement with the
applicable Governmental Authority).
(k) Related Document Notices. Promptly and in any event within
five Business Days after the furnishing or receipt thereof, copies of
all documents and all material notices and requests furnished or
received by the Borrower or any of its Subsidiaries under or pursuant
to any of the Related Documents and, from time to time upon the
reasonable request of the Administrative Agent, such information and
reports regarding the Related Documents as the Administrative Agent, or
any of the Lender Parties through the Administrative Agent, may
reasonably request.
(l) Securities Reports, Etc. Promptly and in any event within
five Business Days after the sending or filing thereof, copies of all
proxy statements, financial statements, change reports and other
reports that the Borrower or any of its Subsidiaries sends to its
stockholders, partners or members (or equivalent persons thereto), and
copies of all regular, periodic and special reports and information
forms, and all registration statements, prospectuses and information
memoranda, that the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission or any Governmental Authority that
may be substituted therefor, or with any national or international
securities exchange, and copies of all private placement or offering
memoranda pursuant to which securities of the Borrower or any of its
Subsidiaries that are exempt from registration under the Securities Act
are proposed to be issued and sold thereby.
(m) Creditor Reports. Promptly and in any event within three
Business Days after the furnishing or receipt thereof, copies of any
statement or report furnished to or received from any other holder of
the securities of the Borrower or any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit agreement, receivables
purchase agreement or similar agreement of the Borrower or any of its
Subsidiaries with amounts outstanding or having commitments to extend
credit in an aggregate principal amount of at least $1,000,000
(including, without limitation, any amendments, waivers or consents
given or requested in respect thereof and any notices of default,
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acceleration or redemption delivered thereunder) and not otherwise
required to be furnished to the Administrative Agent and the Lender
Parties pursuant to any other clause of this Section 5.03.
(n) ERISA Events and ERISA Reports; Plan Terminations, Etc.
(i) Promptly and in any event within 15 days after any of the Loan
Parties or any of the ERISA Affiliates knows or has reason to know that
any material ERISA Event has occurred, a statement of a Responsible
Officer of the Borrower describing such material ERISA Event and the
action, if any, that the Borrower, such other applicable Loan Party or
such ERISA Affiliate has taken and/or proposes to take with respect
thereto, together with materials or information filed or to be filed
with any Governmental Authority or any trustee for any Plan as a result
of such material ERISA Event; (ii) on the date on which any records,
documents or other information must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information; (iii) promptly and in any event
within two Business Days after receipt thereof by any of the Loan
Parties or any of the ERISA Affiliates, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan; (iv) promptly following the request
of the Administrative Agent, or any of the Lender Parties through the
Administrative Agent, therefor, a copy of the most recent Schedule B
(Actuarial Information) to the annual report (form 5500) with respect
to each of the Plans; and (v) promptly and in any event within 15
Business Days after receipt thereof by any of the Loan Parties or any
of the ERISA Affiliates from the sponsor of a Multiemployer Plan,
copies of each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or that
could reasonably be expected to be incurred, by such Loan Party or any
such ERISA Affiliate in connection with any event described in
subclause (v)(A) or (v)(B) of this Section 5.03(n).
(o) Tax Reports and Notices. (i) Within ten Business Days
after receipt thereof, copies of all Revenue Agent Reports (Internal
Revenue Service form 886) or other written proposals of the Internal
Revenue Service that propose, determine or otherwise set forth
adjustments (whether positive or negative) to the United States federal
income tax liability of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member aggregating $2,500,000 or more; (ii) promptly and in any
event within five Business Days after the due date (after giving effect
to all applicable extensions) for filing the final federal income tax
return in respect of each taxable year of the Borrower, a certificate
of the Borrower, duly executed by a Responsible Officer thereof,
stating that the common parent of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member has paid to the Internal Revenue Service or
other relevant taxation authority the full amount that such affiliated
group is required to pay in respect of United States federal income
taxes for such taxable year (other than any portion of such amount
which is being contested in good faith and by proper proceedings
diligently conducted and as to which appropriate and adequate reserves
are being maintained in accordance with GAAP) and that the Borrower and
each of its Subsidiaries have received any amount payable to them, and
have not paid amounts in respect of taxes (federal, state, local or
foreign) in excess of the amount the Borrower or such Subsidiary is
required to pay, under the established tax sharing arrangements of the
Borrower and its Affiliates in respect of such taxable year; and (iii)
promptly and in any event within ten Business Days after receipt
thereof, copies of the determination of any request for a ruling or
determination letter from the Internal Revenue Service or any other
taxation authority or Governmental Authority regarding the actual or
asserted tax liability or deficiency of the Borrower or any of its
Subsidiaries.
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(p) Environmental Conditions. Promptly and in any event within
five Business Days after the assertion or occurrence thereof:
(i) notice of any condition or occurrence on or
arising from any property owned or operated by the Borrower or
any of its Subsidiaries that resulted or is alleged to have
resulted in noncompliance in any material respect by the
Borrower or such Subsidiary with any applicable Environmental
Law or Environmental Permit;
(ii) any condition or occurrence on any property
owned or operated by the Borrower or any of its Subsidiaries
that could reasonably be expected to cause such property to be
subject to any material restrictions on the ownership,
occupancy or use thereof or on the transferability of such
property by the Borrower or its applicable Subsidiary under
any Environmental Law; and
(iii) the taking of any removal or remedial action
involving material costs or liabilities in response to the
actual or alleged presence of any Hazardous Material on any
property owned or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law, any
Environmental Permit or any Governmental Authority.
All such notices shall describe in reasonable detail the nature of the
condition, occurrence, removal or remedial action described therein,
the period of time such condition or circumstance has existed and been
continuing and, in the case of each such condition or occurrence, the
action that the Borrower or its applicable Subsidiary has taken and/or
proposes to take with respect thereto.
(q) Insurance. As soon as available and in any event within 30
days after the end of each Fiscal Year, commencing with the Fiscal Year
ending December 31, 1999, a report summarizing the insurance coverage
in effect for the Borrower and each of its Subsidiaries, specifying
therein the type, carrier, amount, deductibles and co-insurance
requirements and expiration dates thereof and containing such
additional information as any of the Lender Parties, through the
Administrative Agent, may reasonably request.
(r) Year 2000 Compliance. Promptly upon the discovery or
determination thereof by any Responsible Officer of the Borrower,
notice (in reasonable detail) of any computer application (including
any such computer application of its or any of its Subsidiary's
suppliers, vendors and customers) that will not be able on a timely
basis to perform properly date-sensitive functions for all dates before
and after January 1, 2000, except to the extent that such failure,
either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(s) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, liabilities
(actual or contingent), performance, properties or prospects of the
Borrower or any of its Subsidiaries as any of the Lender Parties,
through the Administrative Agent, may from time to time reasonably
request.
SECTION 5.04. Financial Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents (other than any such Obligations of any of the Loan
Parties under Section 2.10, 2.12 or 8.04 (or other similar provisions of the
other Loan Documents that are specified under the terms thereof to survive the
payment in full of such other Obligations under or in respect of the Loan
Documents) to the extent no demand or claim thereunder has
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been made) shall remain unpaid, any of the Letters of Credit shall remain
outstanding or any of the Lender Parties shall have any Commitment hereunder,
the Borrower will:
(a) Leverage Ratio. Maintain a Leverage Ratio at all times of
not more than the amount set forth below for and during the period set
forth below:
Period Ratio
------ ------
January 20, 1999 through
March 30, 1999 6.60:1
March 31, 1999 through
June 29, 1999 6.30:1
June 30, 1999 through
September 29, 1999 6.30:1
September 30, 1999 through
December 30, 1999 5.75:1
December 31, 1999 through
March 30, 2000 5.75:1
March 31, 2000 through
June 29, 2000 5.75:1
June 30, 2000 through
September 29, 2000 5.75:1
September 30, 2000 through
December 30, 2000 5.25:1
December 31, 2000 through
March 30, 2001 5.00:1
March 31, 2001 through
June 29, 2001 5.00:1
June 30, 2001 through
September 29, 2001 5.00:1
September 30, 2001 through
December 30, 2001 4.50:1
December 31, 2001 through
March 30, 2002 4.50:1
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Period Ratio
------ ------
March 31, 2002 through
June 29, 2002 4.50:1
June 30, 2002 through
September 29, 2002 4.50:1
September 30, 2002 through
December 30, 2002 4.00:1
December 31, 2002 through
March 30, 2003 4.00:1
March 31, 2003 through
June 29, 2003 4.00:1
June 30, 2003 through
September 29, 2003 4.00:1
September 30, 2003 and
thereafter 3.50:1
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio as of the last day of each Measurement Period of not
less than the amount set forth below for each Measurement Period set
forth below:
Measurement Period
Ending In Ratio
------------------ ------
March 1999 1.15:1
June 1999 1.15:1
September 1999 1.15:1
December 1999 1.15:1
March 2000 1.20:1
June 2000 1.20:1
September 2000 1.20:1
December 2000 1.20:1
March 2001 1.35:1
June 2001 1.35:1
September 2001 1.35:1
December 2001 1.35:1
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Measurement Period
Ending In Ratio
------------------ ------
March 2002 1.40:1
June 2002 1.40:1
September 2002 1.40:1
December 2002 1.40:1
March 2003 and
thereafter 1.50:1
(c) Interest Coverage Ratio. Maintain an Interest Coverage
Ratio as of the last day of each Measurement Period of not less than
the amount set forth below for each Measurement Period set forth below:
Measurement Period
Ending In Ratio
------------------ ------
March 1999 1.60:1
June 1999 1.60:1
September 1999 1.60:1
December 1999 1.60:1
March 2000 1.70:1
June 2000 1.70:1
September 2000 1.75:1
December 2000 1.75:1
March 2001 1.85:1
June 2001 1.85:1
September 2001 2.00:1
December 2001 2.00:1
March 2002 2.00:1
June 2002 2.20:1
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Measurement Period
Ending In Ratio
------------------ ------
September 2002 2.25:1
December 2002 2.25:1
March 2003 2.40:1
June 2003 2.40:1
September 2003 2.50:1
December 2003 2.50:1
March 2004 2.75:1
June 2004 2.75:1
September 2004 2.75:1
December 2004 2.75:1
March 2005 and 3.00:1
thereafter
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable, whether by
scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise, or (ii) the Borrower shall fail to
pay any interest on any Advances, or any of the Loan Parties shall fail
to make any other payment under or in respect of any of the Loan
Documents required to have been made by it, in each case whether by
scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise and, in each case under this clause
(ii), such failure remains unremedied for at least three Business Days
after the same becomes due and payable; or
(b) any representation or warranty made by any of the Loan
Parties (or any of their respective officers) under or in connection
with any of the Loan Documents (including, without limitation, in any
certificate, report, statement or other writing at any time furnished
(or deemed to have been furnished) to the Administrative Agent or any
of the Lender Parties by or on behalf of any
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of the Loan Parties) shall prove to have been incorrect in any material
respect on the date as of which it was made or deemed made; or
(c) (i) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.15, 5.01(b)(i),
5.01(e), 5.01(i) or 5.01(j), any of subclauses (A) through (D) of
Section 5.01(k) or Section 5.02, 5.03 or 5.04 on its part to be
performed or observed or (ii) any of the Loan Parties shall fail to
perform or observe any term, covenant or agreement contained in Section
4 of the Subsidiaries Guarantee or Section 4, 5 or 10(a) or any of
Sections 11, 12, 13, 14(a)(i), 14(b), 15(a), 15(b), 15(c) or 16 of the
Security Agreement on its part to be performed or observed; or
(d) any of the Loan Parties shall fail to perform or observe
any term, covenant or agreement contained in any of the Loan Documents
on its part to be performed or observed that is not otherwise referred
to in Section 6.01(c) if such failure shall remain unremedied for at
least ten consecutive days after the earlier of the date on which (i) a
Responsible Officer of the Borrower or any of its Subsidiaries first
becomes aware of such failure and (ii) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any of
the Lender Parties; or
(e) (i) any of the Loan Parties or any of their Subsidiaries
shall fail to pay any principal of, premium or interest on, or any
other amount payable in respect of, one or more items of Indebtedness
of the Loan Parties and their Subsidiaries (excluding Indebtedness
outstanding hereunder) that is outstanding (or under which one or more
Persons have a commitment to extend credit) in an aggregate principal
amount (or, in the case of any Hedge Agreement, having an Agreement
Value) of at least $5,000,000 at the time of such failure, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreements or instruments relating to all such Indebtedness; or (ii)
any other event shall occur or condition shall exist under the
agreements or instruments relating to one or more items of Indebtedness
of any of the Loan Parties or any of their Subsidiaries (excluding
Indebtedness outstanding hereunder) that is outstanding (or under which
one or more Persons have a commitment to extend credit) in an aggregate
principal amount (or, in the case of any Hedge Agreement, having an
Agreement Value) of at least $5,000,000 at the time of such other event
or condition, and shall continue after the applicable grace period, if
any, specified in all such agreements or instruments, if the effect of
such event or condition is to accelerate, or to permit the acceleration
of, the maturity of such Indebtedness or otherwise to cause, or to
permit the holder thereof to cause, such Indebtedness to mature; or
(iii) one or more items of Indebtedness of any of the Loan Parties or
any of their Subsidiaries (excluding Indebtedness outstanding
hereunder) that is outstanding (or under which one or more Persons have
a commitment to extend credit) in an aggregate principal amount (or, in
the case of any Hedge Agreement, having an Agreement Value) of at least
$5,000,000 shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled or required
prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; or
(f) any of the Loan Parties or any of their Subsidiaries shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any of the Loan Parties or
any of their Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
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arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, administrator or
other similar official for it or for any substantial part of its
property and assets and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of at least 45 consecutive days or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property and assets) shall
occur; or any event or action analogous to or having a substantially
similar effect to any of the events or actions set forth above in this
Section 6.01(f) (other than a solvent reorganization) shall occur under
the Requirements of Law of any jurisdiction applicable to any of the
Loan Parties or any of their Subsidiaries; or any of the Loan Parties
or any of their Subsidiaries shall take any corporate, partnership,
limited liability company or other similar action to authorize any of
the actions set forth above in this Section 6.01(f); or
(g) one or more judgments or orders for the payment of money
in excess of $5,000,000 in the aggregate shall be rendered against one
or more of the Loan Parties and their Subsidiaries and shall remain
unsatisfied and either (i) enforcement proceedings shall have been
commenced by any creditor upon any such judgment or order and remain
unstayed or (ii) there shall be any period of at least 20 consecutive
days during which a stay of enforcement of any such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not give rise
to an Event of Default under this Section 6.01(g) if and for so long as
(A) the amount of such judgment or order which remains unsatisfied is
covered by a valid and binding policy of insurance between the
defendant and the insurer covering full payment thereof and (B) such
insurer has been notified, and has not disputed the claim made for
payment, of the amount of such judgment or order; or
(h) one or more nonmonetary judgments or orders (including,
without limitation, writs or warrants of attachment, garnishment,
execution, distraint or similar process) shall be rendered against one
or more of the Loan Parties and their Subsidiaries that, either
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect, and there shall be any period of at least 20
consecutive days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(i) any provision of any of the Loan Documents after delivery
thereof pursuant to Section 3.01, 3.02, 5.01(k) or 5.02(k) shall for
any reason (other than pursuant to the terms thereof) cease to be valid
and binding on or enforceable against any of the Loan Parties intended
to be a party to it, or any such Loan Party shall so state in writing;
or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01, 5.01(k) or 5.02(k) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected
first priority (subject to the liens and security interests expressly
permitted under Section 5.02(a)) lien on and security interest in the
Collateral purported to be covered thereby; or
(k) any of the following events or conditions shall have
occurred and such event or condition, when aggregated with any and all
other such events or conditions set forth in this Section 6.01(k), has
resulted, or, with respect to clause (i) of this Section 6.01(k), could
reasonably be
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expected to result, in liabilities of one or more of the Loan Parties
and/or the ERISA Affiliates in an aggregate amount exceeding $5,000,000
at any time:
(i) any ERISA Event shall have occurred with respect
to a Plan; or
(ii) any of the Loan Parties or any of the ERISA
Affiliates shall have incurred Withdrawal Liability to a
Multiemployer Plan or liability in connection with the
reorganization, insolvency or termination of a Multiemployer
Plan; or
(iii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA and Section 412 of the
Internal Revenue Code), whether or not waived, shall exist
with respect to one or more of the Plans, or any Lien shall
exist on the property and assets of any of the Loan Parties or
any of the ERISA Affiliates in favor of the PBGC or any Plan;
or
(l) an "Event of Default" (as defined in the applicable Senior
Subordinated Notes Documents) shall have occurred and be continuing
under the Senior Subordinated Notes Documents; or
(m) a Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each of the Lender Parties and the obligation of each
of the Lender Parties to make Advances (other than Swing Line Advances by any of
the Revolving Credit Lenders pursuant to Section 2.02(b)(ii) and Letter of
Credit Advances by the Issuing Bank or any of the Revolving Credit Lenders
pursuant to Section 2.03(c)(i)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under or in respect of this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the United States Federal Bankruptcy Code or a similar order
or action under any other Requirements of Law covering the protection of
creditors' rights or the relief of debtors applicable to the Borrower, (1) the
Commitments of each of the Lender Parties and the obligation of each of the
Lender Parties to make Advances (other than Swing Line Advances by any of the
Revolving Credit Lenders pursuant to Section 2.02(b)(ii) and Letter of Credit
Advances by the Issuing Bank or any of the Revolving Credit Lenders pursuant to
Section 2.03(c)(i)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (2) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent, on behalf of the
Lender Parties, in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative
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Agent determines that any funds held in the L/C Cash Collateral Account are
subject to any right or claim of any Person other than the Agents and the other
Secured Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the Issuing Bank or the Revolving Credit Lenders, as applicable, to
the extent permitted under applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each of the Lender
Parties (in its respective capacities as a Lender, the Swing Line Bank, the
Issuing Bank and a Hedge Bank, in each case if applicable) hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for under the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all of the Lender Parties and all holders of Notes; provided,
however, that the Administrative Agent shall not be required to take any action
(i) that exposes the Administrative Agent to personal liability or that is
contrary to this Agreement or to applicable Requirements of Law or (ii) as to
which the Administrative Agent has not received adequate security or indemnity
(whether pursuant to Section 7.05 or otherwise). If the security or indemnity
furnished to the Administrative Agent for any purpose under or in respect of the
Loan Documents shall, in the good faith opinion of the Administrative Agent, be
insufficient or become impaired, then the Administrative Agent may require
additional security or indemnity and cease, or not commence, to follow the
directions or take the actions indemnified against until such additional
security or indemnity is furnished. The Administrative Agent agrees to give to
each of the Lender Parties prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
(b) The Administrative Agent shall also act as the "collateral
agent" under the Loan Documents, and each of the Lender Parties (in its capacity
as a Lender, the Swing Line Bank, the Issuing Bank and a Hedge Bank, in each
case if applicable, and as a Secured Party) hereby appoints and authorizes the
Administrative Agent to act as the agent of such Lender for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any
of the Loan Parties to secure any of the Secured Obligations, together with such
powers and discretion as are reasonably incidental thereto. The Administrative
Agent may from time to time in its discretion appoint any of the Lender Parties
or any of the affiliates of a Lender Party to act as its co-agent or sub-agent
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights or
remedies thereunder at the direction of the Administrative Agent. In such
capacity, such co-agents and sub-agents shall be entitled to the benefits of all
provisions of this Article VII (including, without limitation,
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Section 7.05, as though such co-agents or sub-agents were the "Administrative
Agent" under the Loan Documents) as if set forth in full herein with respect
thereto. The Administrative Agent shall not be responsible for any gross
negligence or willful misconduct of any of the co-agents or sub-agents selected
by it with reasonable care.
(c) None of the Lead Arranger and Book Manager, the
Syndication Agent, the Documentation Agent or either Co-Arranger shall have any
powers or discretion under this Agreement or any of the other Loan Documents
other than those bestowed upon it as a co-agent or sub-agent from time to time
by the Administrative Agent pursuant to subsection (b) of this Section 7.01, and
each of the Lender Parties hereby acknowledges that none of the Lead Arranger
and Book Manager, the Syndication Agent, the Documentation Agent or either
Co-Arranger shall have any liability under this Agreement or under any of the
other Loan Documents.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Without limiting the generality
of the immediately preceding sentence, the Administrative Agent:
(a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note,
as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07;
(b) may consult with legal counsel (including counsel for any
of the Loan Parties), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts;
(c) makes no representation or warranty to any of the Secured
Parties and shall not be responsible to any of the Secured Parties for
any statements, representations or warranties (whether written or oral)
made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or
conditions of any of the Loan Documents on the part of any of the Loan
Parties or to inspect the property and assets (including the books and
records) of any of the Loan Parties;
(e) shall not be responsible to any of the Secured Parties for
the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the protection or priority of any lien or
security interest created or purported to be created under or in
connection with, any of the Loan Documents or any other instrument or
document furnished pursuant thereto; and
(f) shall incur no liability under or in respect of any of the
Loan Documents by acting upon any notice, consent, order, certificate
or other instrument or writing (which may be by telegram, telecopy or
telex) believed by it to be genuine and signed or sent by the proper
party or parties.
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SECTION 7.03. NationsBank, NMS, MSSF, CIBC and Affiliates.
With respect to its Commitment or Commitments, the Advances made by it and the
Note or Notes issued to it, each of NationsBank, MSSF and CIBC shall have the
same rights and powers under the Loan Documents as any of the other Lender
Parties and may exercise the same as though it were not an Agent hereunder; and
the term "Lender", "Lenders", "Lender Party", "Lender Parties", "Secured Party"
or "Secured Parties" shall, unless otherwise expressly indicated, include
NationsBank, NMS, MSSF, CIBC and their respective affiliates parties hereto in
their respective individual capacities. NationsBank, NMS, MSSF, CIBC and their
respective affiliates (whether or not parties hereto) may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any of the
Loan Parties, any of their respective Subsidiaries and any Person who may do
business with or own securities of any such Loan Party or any such Subsidiary,
all as if NationsBank, NMS, MSSF and CIBC were not Agents hereunder and without
any duty to account therefor to the other Lender Parties.
SECTION 7.04. Lender Credit Decision. Each of the Lender
Parties hereby acknowledges that it has, independently and without reliance upon
any of the Agents or any of the other Lender Parties and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each of the Lender Parties also hereby acknowledges that it
will, independently and without reliance upon any of the Agents or any of the
other Lender Parties 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.
SECTION 7.05. Indemnification. (a) Each of the Lenders hereby
severally agrees to indemnify the Administrative Agent (to the extent not
promptly reimbursed by the Borrower) from and against such Lender's ratable
share (determined as provided below in this Section 7.05(a)) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents; provided, however, that
none of the Lenders shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. In the case of any claim,
investigation, litigation or proceeding to which the indemnity in this Section
7.05(a) applies, such indemnity shall be effective whether or not such claim,
investigation, litigation or proceeding is brought by the Administrative Agent,
any of the Lender Parties or a third party. Without limiting any of the
provisions of the immediately preceding sentence, each of the Lenders hereby
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents, to
the extent that the Administrative Agent is not promptly reimbursed for such
costs and expenses by the Borrower. For purposes of this Section 7.05(a), the
Lenders' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of all Advances
owing to the respective Lenders and outstanding at such time, (ii) in the case
of each of the Revolving Credit Lenders, such respective Revolving Credit
Lender's Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) the aggregate Unused Revolving Credit
Commitments of the respective Revolving Credit Lenders at such time; provided
that the aggregate principal amount of all Swing Line Advances owing to the
Swing Line Bank and
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all Letter of Credit Advances owing to the Issuing Bank and outstanding at such
time shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. The failure of
any of the Lenders to reimburse the Administrative Agent promptly upon demand
for its ratable share of any amount required to be paid by the Lenders to the
Administrative Agent as provided in this Section 7.05(a) shall not relieve any
of the other Lenders of its obligation hereunder to reimburse the Administrative
Agent for its ratable share of such amount, but none of the Lenders shall be
responsible for the failure of any of the other Lenders to reimburse the
Administrative Agent for such other Lender's ratable share of such amount.
(b) Each of the Revolving Credit Lenders hereby severally
agrees to indemnify the Issuing Bank (to the extent not promptly reimbursed by
the Borrower) from and against such Revolving Credit Lender's ratable share
(based upon its Revolving Credit Commitment) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against the Issuing Bank in any way relating to or
arising out of the Loan Documents or any action taken or omitted by the Issuing
Bank under the Loan Documents; provided, however, that none of the Revolving
Credit Lenders shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Issuing Bank's gross negligence or willful
misconduct as determined in a final, nonappealable judgment by a court of
competent jurisdiction. In the case of any claim, investigation, litigation or
proceeding to which the indemnity in this Section 7.05(b) applies, such
indemnity shall be effective whether or not such claim, investigation,
litigation or proceeding is brought by the Issuing Bank, any of the Lender
Parties or a third party. Without limiting any of the provisions of the
immediately preceding sentence, each of the Revolving Credit Lenders hereby
agrees to reimburse the Issuing Bank promptly upon demand for its ratable share
(based upon Revolving Credit Commitment) of any costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Issuing Bank in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or any of the other Loan Documents, to the extent that the Issuing
Bank is not promptly reimbursed for such costs and expenses by the Borrower. The
failure of any of the Revolving Credit Lenders to reimburse the Issuing Bank
promptly upon demand for its ratable share of any amount required to be paid by
the Revolving Credit Lenders to the Issuing Bank as provided in this Section
7.05(b) shall not relieve any of the other Revolving Credit Lenders of its
obligation hereunder to reimburse the Issuing Bank for its ratable share of such
amount, but none of the Revolving Credit Lenders shall be responsible for the
failure of any of the other Revolving Credit Lenders to reimburse the Issuing
Bank for such other Revolving Credit Lender's ratable share of such amount.
(c) Without prejudice to the survival of any other agreement
of any of the Lender Parties hereunder, the agreement and obligations of each of
the Lenders contained in this Section 7.05 shall survive the payment in full of
all principal, interest and other amounts payable under or in respect of this
Agreement or any of the other Loan Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign as to any or all of the Facilities at any time
by giving written notice thereof to the Lender Parties and the Borrower and may
be removed as to all of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been
removed; provided that, so long as no Default shall have occurred and be
continuing, the Borrower shall have the right to consent to any such successor
Administrative Agent, such consent not to be
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unreasonably withheld and to be deemed to have been given if the Borrower does
not object to the proposed successor Administrative Agent within five Business
Days of notice thereof. If no successor Administrative Agent shall have been so
appointed by the Required Lenders (and, if applicable, consented to by the
Borrower), and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties and the other Secured
Parties, appoint a successor Administrative Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any state
thereof and having a combined capital and surplus of at least $250,000,000. If
within 45 days after written notice is given of the retiring Administrative
Agent's resignation or removal as to any or all of the Facilities under this
Section 7.06 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (a) the retiring
Administrative Agent's resignation or removal shall become effective as to such
of the Facilities as to which the Administrative Agent has resigned or been
removed, (b) the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations as to such Facilities under the Loan Documents
and (c) the Required Lenders shall thereafter perform all duties and obligations
of the retiring Administrative Agent as to such Facilities under the Loan
Documents until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above in this Section 7.06. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to all of the Facilities and upon the execution and
filing of such financing statements, or amendments thereto, and such other
instruments and notices, as may be necessary or desirable or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted under the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and upon the execution and filing or recording of
such financing statements, amendments thereto, and such other instruments or
notices, as may be necessary or desirable, as the Required Lenders may request,
in order to continue the perfection of the Liens granted or purported to be
granted by the Collateral Documents, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent as to such Facilities, other
than with respect to funds transfers and other similar aspects of the
administration of Borrowings under such Facilities, issuances of Letters of
Credit (notwithstanding any resignation as Administrative Agent with respect to
the Letter of Credit Facility) and payments by the Borrower in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents as to such Facilities, other
than as aforesaid. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent as to any of the Facilities shall have
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent as to such Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes or any of the other Loan Documents, nor
consent to any departure by any of the Loan Parties therefrom, shall in any
event be effective unless the same shall be in writing and signed by each of the
Loan Parties party to such Loan Document and directly affected by such
amendment, waiver or consent
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and signed (or in the case of the Collateral Documents, consented to) by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that:
(a) no amendment, waiver or consent shall, unless in writing
and signed by the Borrower and all of the Lenders (other than any of
the Lenders that is, at such time, a Defaulting Lender), do any of the
following at any time:
(i) waive any of the conditions specified in Section
3.01 or 3.02 or, in the case of the Initial Extension of
Credit, Section 3.03;
(ii) change the number of Lenders or the percentage
of the Commitments or the aggregate outstanding principal
amount of Advances or the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be
required for the Lender Parties or any of them to take any
action hereunder;
(iii) release all or substantially all of the value
of the guarantees of the Restricted Subsidiaries under the
Subsidiaries Guarantee;
(iv) release all or substantially all of the
Collateral in any transaction or series of related
transactions; or
(v) amend this Section 8.01;
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Borrower and the Required Lenders and each of the
Lenders (other than any of the Lenders that is, at such time, a
Defaulting Lender) that has a Commitment under the Term A Facility, the
Term B Facility or the Revolving Credit Facility if such Lender is
directly affected by such amendment, waiver or consent:
(i) increase the Commitments of such Lender;
(ii) reduce the principal of, or stated rate of
interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender; or
(iii) postpone any date scheduled for any payment of
principal of, or interest on, the Notes held by such Lender
pursuant to Section 2.04 or 2.07 or any date fixed for any
payment of fees or the Guaranteed Obligations payable
hereunder or thereunder to such Lender; and
(c) no amendment, waiver or consent shall, unless in writing
and signed by the Borrower and the Required Lenders and, if the Lenders
under any such Facility are directly affected by such amendment, waiver
or consent, Lenders holding more than 50% of the aggregate Commitments
under the Term A Facility, the Term B Facility or the Revolving Credit
Facility, change the order of application of any reduction in the
Commitments or any prepayment of Advances between the Term A Facility
and the Term B Facility from the application thereof set forth in the
applicable provisions of Section 2.05(b) or 2.06(b), respectively, in
any manner that materially
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affects the Lenders under such Facility or permanently reduce the
Revolving Credit Facility at any time when all or a portion of the Term
Facilities remain in effect;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case may
be, in addition to the Lenders required above to take such action, affect the
rights or duties of the Swing Line Bank or the Issuing Bank under this Agreement
or any of the other Loan Documents; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lender Parties required above to take such action,
affect the rights or duties of the Administrative Agent under this Agreement or
any of the other Loan Documents. Notwithstanding any of the foregoing provisions
of this Section 8.01, none of the defined terms set forth in Section 1.01 shall
be amended, supplemented or otherwise modified hereafter in any manner that
would change the meaning, purpose or effect of this Section 8.01 or any section
referred to herein unless such amendment, supplement or modification is agreed
to in writing by the number and percentage of Lenders (and the Swing Line Bank,
the Issuing Bank and Administrative Agent, in each case, if applicable)
otherwise required to amend such section under the terms of this Section 8.01.
SECTION 8.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered:
(i) if to the Borrower, at its address at 8825 Page
Boulevard, St. Louis, Missouri 63114, Telecopier No.: (314) 253-5941,
Attention: President;
(ii) if to any of the Initial Lenders, the Swing Line Bank or
the Issuing Bank, at its Base Rate Lending Office specified opposite
its name on Part B of Schedule I hereto;
(iii) if to any of the other Lender Parties, at its Base Rate
Lending Office specified on Schedule I to the Assignment and Acceptance
pursuant to which it became a Lender Party;
(iv) if to the Administrative Agent, at its address at
Independence Center, 101 North Tryon Street, 15th Floor, NC1-001-15-04,
Charlotte, North Carolina 28255 (Telecopier No. (704) 388-9436),
Attention: Corporate Credit Services; or
(v) as to the Borrower or the Administrative Agent, at such
other address as shall be designated by such party in a written notice
to each of the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to
both the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telecopied
or telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively, addressed as aforesaid, except that notices and communications to
the Administrative Agent pursuant to Article II, III or VII shall not be
effective until received by the Administrative Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of an originally executed counterpart
thereof.
(b) If any notice required under this Agreement is permitted
to be made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any of
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the Lender Parties shall be binding upon the Borrower and the other Loan Parties
notwithstanding any inconsistency between the notice provided by telephone and
any subsequent writing in confirmation thereof provided to the Administrative
Agent or such Lender Party; provided that any such action taken or omitted to be
taken by the Administrative Agent or any such Lender Party shall have been in
good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any of the Lender Parties or the Administrative Agent to exercise, and no delay
in exercising, any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof or consent thereto; nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by applicable law.
SECTION 8.04. Costs and Expenses; Indemnification. (a) The
Borrower hereby agrees to pay on demand (i) all reasonable costs and expenses of
each of the Agents in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, audit, insurance, consultant and search
fees and expenses and (B) the reasonable fees and expenses of one principal
counsel for the Agents and other special and local counsel for the Agents and
the Lender Parties with respect thereto, with respect to advising each such
Agent as to its rights and responsibilities, or the protection or preservation
of rights or interests, under the Loan Documents, with respect to negotiations
with any of the Loan Parties or with other creditors of any of the Loan Parties
or any of their Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each of the
Agents and the Lender Parties in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, or in any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally
(including, without limitation, the reasonable fees and expenses of counsel for
each of the Agents and each of the Lender Parties with respect thereto).
(b) The Borrower hereby agrees to indemnify and hold harmless
each of the Agents, each of the Lender Parties and each of their respective
affiliates and their respective officers, directors, employees, agents,
representatives and advisors (each an "Indemnified Party") from, and hold each
of them harmless against, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) any
aspect of the Transaction, the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents, the
Related Documents or any of the transactions contemplated thereby, (ii) any
acquisition or proposed acquisition by any of the Equity Investors, any of their
respective Affiliates or any other Person of all or any portion of the Equity
Interests in or debt securities of, or all or substantially all the property and
assets of, the Borrower or any of its Subsidiaries or other Affiliates or (iii)
the actual or alleged presence of Hazardous Materials on any property of any of
the Loan Parties or any of their Subsidiaries or any Environmental Action
relating in any way to any of the Loan Parties or any of their Subsidiaries,
except to the extent such claim, damage, loss, liability or expense is
determined to have resulted from (A) such Indemnified Party's or any Related
Indemnified Party's gross negligence or willful misconduct, (B) claims of any of
the Lender Parties solely against one or more other Lender Parties (and not by
one or more Lender Parties against the Administrative Agent or one
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or more of the other Agents) that have not resulted from the action, inaction,
participation or contribution of the Borrower or its Subsidiaries or other
Affiliates or any of their respective officers, directors, stockholders,
partners, members, employees, agents, representative or advisors or (C) any
action brought by the Borrower or any of its Subsidiaries against one or more
Indemnified Parties in which the Borrower or its applicable Subsidiary, as the
case may be, prevails in a final, nonappealable judgment by a court of competent
jurisdiction. In the case of any claim, investigation, litigation or other
proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such claim, investigation,
litigation or proceeding is brought by any of the Loan Parties, its directors,
stockholders or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the Transaction (or any aspect
thereof) or any of the other transactions contemplated hereby are consummated.
The Borrower also hereby agrees that none of the Indemnified Parties shall have
any liability (whether direct or indirect, in contract, tort or otherwise) to
the Borrower, any of the other Loan Parties or any of its or their respective
Affiliates or its or their respective officers, directors, stockholders,
partners, members, employees, agents, representatives or advisors, and the
Borrower hereby further agrees not to assert any claim against any of the
Indemnified Parties on any theory of liability, for special, indirect,
consequential or punitive damages, arising out of or otherwise relating to any
aspect of the Transaction, the Facilities, the actual or proposed use of the
proceeds of any Advances or any Letters of Credit, the Loan Documents, the
Related Documents or any of the other transactions contemplated thereby, except,
in the case of any such Indemnified Party, for direct, as opposed to
consequential, damages that are determined to have resulted from such
Indemnified Party's or any Related Indemnified Party's gross negligence or
willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of any of
the Lender Parties other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.06 or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to any of the Lender Parties
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), or if
the Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall,
upon demand by such Lender Party, pay to the Administrative Agent for the
account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (excluding
any loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance. A certificate of the Lender Party
requesting compensation pursuant to this Section 8.04(c), submitted to the
Borrower by such Lender Party (with a copy to the Administrative Agent) and
specifying therein the amount of such additional compensation (including the
basis of calculation thereof), shall be conclusive and binding for all purposes,
absent manifest error.
(d) If any of the Loan Parties fails to pay when due any
costs, expenses or other amounts payable by it under or in respect of any of the
Loan Documents (including, without limitation, fees and expenses of counsel and
indemnification payments), such amount may be paid on behalf of such Loan Party
by the Administrative Agent or any of the Lender Parties, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement
of any of the Loan Parties under or in respect of this Agreement or any of the
other Loan Documents, the agreements and obligations of the Borrower contained
in Sections 2.10 and 2.12 and in this Section 8.04 shall survive the payment in
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full of principal, interest and all other amounts payable under or in respect of
this Agreement or any of the other Loan Documents.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each of the Agents and the Lender Parties and each
of their respective affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and
otherwise 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 Agent, such Lender Party or such affiliate to or for the credit or the
account of the Borrower against any and all of the Obligations of the Borrower
now or hereafter existing under and in respect of this Agreement and the other
Loan Documents, irrespective of whether such Agent or such Lender Party shall
have made any demand under this Agreement or any such other Loan Document and
although such Obligations may be unmatured. Each of the Agents and the Lender
Parties hereby agrees promptly to notify the Borrower after any such setoff and
application is made by such Agent or such Lender Party, as the case may be, or
any of its affiliates; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of each
of the Agents and each of the Lender Parties and their respective affiliates
under this Section 8.05 are in addition to any other rights and remedies
(including, without limitation, other rights of setoff) that such Agent, such
Lender Party and their respective affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each of the Initial Lenders, the Swing Line Bank and the Initial Issuing Bank
that such Initial Lender, the Swing Line Bank and the Initial Issuing Bank has
executed it and, thereafter, shall be binding upon and inure to the benefit of,
and be enforceable by, the Borrower, each of the Agents and each of the Lender
Parties and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of all of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each of the
Lenders may, and so long as no Default has occurred and is continuing, if
demanded by the Borrower (following (i) a demand by such Lender for the payment
of additional compensation pursuant to Section 2.10(a), 2.10(b) or 2.12, (ii) an
assertion by such Lender pursuant to Section 2.10(c) or 2.10(d) that it is
impractical or unlawful for such Lender to make Eurodollar Rate Advances or
(iii) a refusal by such Lender to approve any amendment or waiver of, or consent
to departure from, any of the terms or conditions of this Agreement or any of
the other Loan Documents; provided that the Borrower may not demand the
replacement of one or more Lenders pursuant to this clause (iii) holding, in the
aggregate, more than 10% of the aggregate Commitments under all of the
Facilities as of the date of any such proposed demand or the date of any such
proposed amendment, waiver or consent), upon at least five Business Days' notice
to such Lender and the Administrative Agent, each of such Lenders will, assign
to one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
provided, however, that:
(A) each such assignment with respect to any of the Facilities
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of such Facility;
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(B) except in the case of an assignment to a Person that
immediately prior to such assignment was a Lender or an affiliate or an
Approved Fund of a Lender or an assignment of all of a Lender's rights
and obligations under one or more of the Facilities, the aggregate
amount of the Commitments of the assigning Lender under all of the
Facilities being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 or such other
amount as the Administrative Agent and the assigning Lender and, so
long as no Default has occurred and is continuing, the Borrower shall
agree;
(C) each such assignment shall be to an Eligible Assignee;
(D) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower with the approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed, and either shall be an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other
such assignments that, in the aggregate, cover all of the rights and
obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to make any such assignment
as a result of a demand by the Borrower pursuant to this Section
8.07(a) unless and until such Lender shall have received one or more
payments from one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of all
Advances owing to such Lender, together with accrued interest thereon
to the date of payment of such principal amount, and from the Borrower
and/or one or more Eligible Assignees in an aggregate amount equal to
all other amounts payable to such Lender under this Agreement and the
Notes (including, without limitation, any amounts owing under Sections
2.10, 2.12 and 8.04);
(F) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment; and
(G) the Lender assignor (or, if such assignment is being made
pursuant to a demand by the Borrower therefor under this Section
8.07(a), the Borrower or the Lender assignee) shall pay to the
Administrative Agent a processing and recordation fee of $3,500.
(b) The Issuing Bank may assign to any other Person all, but
not a portion of, its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
and
(ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(c) The Swing Line Bank may not assign its rights and
obligations hereunder, but may terminate all such rights and obligations if, at
any time, the Swing Line Bank ceases to have a Revolving
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Credit Commitment in an amount at least equal to the amount of the Swing Line
Facility on the date of this Agreement.
(d) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or the
Issuing Bank hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 8.04 (and other similar provisions of
the other Loan Documents that are specified under the terms of such other Loan
Documents to survive the payment in full of the Obligations of the Loan Parties
under and in respect of the Loan Documents) to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations (other than its obligations under Section 7.05 to the extent any
claim thereunder relates to an event arising prior to such assignment) 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).
(e) By executing and delivering an Assignment and Acceptance,
the Lender or the Issuing Bank assignor thereunder and the assignee thereunder
(or, solely with respect to the assignments and assumptions of the Existing
Advances being made on the Effective Date pursuant to Section 2.01(a), 2.01(b)
or 2.01(c), by executing and delivering this Agreement, the Existing Lenders and
the other Initial Lenders) confirm to and agree with each other and the other
parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance
(or, in the case of the Existing Lenders, this Agreement), such
assigning Lender or Issuing Bank 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 any of the other Loan Documents, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, this
Agreement or any of the other Loan Documents, or any other instrument
or document furnished pursuant hereto or thereto;
(ii) such assigning Lender or Issuing Bank makes no
representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of the other Loan
Parties or the performance or observance by the Borrower or any of the
other Loan Parties of any of its Obligations under or in respect of any
of the Loan Documents, or any other instrument or document furnished
pursuant thereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01 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;
(iv) such assignee will, independently and without reliance
upon any of the Agents, such assigning Lender or any of the other
Lender Parties 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;
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(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each of the Agents
to take such action as an agent on its behalf and to exercise such
powers and discretion under the Loan Documents as are delegated to such
Agent by the terms hereof, together with such powers and discretion as
are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender Party.
With respect to the assignments and assumptions of the Existing Advances being
made on the Effective Date pursuant to Section 2.01(a), 2.01(b) or 2.01(c), by
executing and delivering this Agreement, each of the Existing Lenders and each
of the other Initial Lenders hereby represents and warrants that its name set
forth on Schedule I hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim.
(f) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at its
address set forth in Section 8.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each of the
Facilities of, and principal amount of the Advances owing under each of the
Facilities to, each of the Lender Parties from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the Lender
Parties shall treat each Person whose name is recorded in the Register as a
Lender Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, any of the Agents or any of the Lender
Parties at any reasonable time and from time to time during normal business
hours and upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender or Issuing Bank and an assignee, together with any Note
or Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. In the case of any assignment by a Lender, within ten
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note or Notes from the Borrower payable to
or to the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it under each of the Facilities pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment under one or
more of the Facilities, a new Note or Notes from the Borrower payable to or to
the order of the assigning Lender in an amount equal to the Commitment retained
by it under each such Facility. Each of the new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A-1,
A-2 or A-3 hereto, as appropriate.
(h) Each of the Lender Parties may sell participations to one
or more Persons (other than any of the Loan Parties or any of their respective
Affiliates) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes, if any, held by
it); provided, however, that:
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(i) such Lender Party's obligations under this Agreement
(including, without limitation, its Commitments) shall remain
unchanged;
(ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations;
(iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement;
(iv) the Borrower, the Administrative Agent and the other
Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party's rights and
obligations under and in respect of this Agreement and the other Loan
Documents; and
(v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any of the
Loan Documents, or any consent to any departure by any of the Loan
Parties therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or stated rate of interest on,
the Notes or any fees or other amounts payable hereunder, in each case
to the extent subject to such participation, or postpone any date
scheduled for any payment of principal of, or interest on, the Notes
pursuant to Section 2.04 or 2.07 or any date fixed for the payment of
any fees or the Guaranteed Obligations payable hereunder or thereunder,
in each case to the extent subject to such participation, or release
all or substantially all of the Collateral in any transaction or series
of related transactions.
(i) Any of the Lender Parties may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed assignee
or participant, as the case may be, any information relating to the Borrower or
any of its Subsidiaries or to any aspect of the Transaction that has been
furnished to such Lender Party by or on behalf of the Borrower or any of its
Subsidiaries; provided, however, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information received by it from
such Lender Party on substantially the same terms as those set forth in Section
8.09.
(j) Any of the Lender Parties may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Note or Notes
held by it) in favor of any Federal Reserve Bank in accordance with Regulation A
of the Board of Governors of the Federal Reserve System.
SECTION 8.08. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for:
(a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection
therewith;
(b) the validity, sufficiency or genuineness of any documents,
or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged;
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(c) payment by the Issuing Bank against presentation of any
documents that do not comply with the terms of a Letter of Credit,
including the failure of any documents to bear any reference or
adequate reference to the Letter of Credit, unless such documents are
substantially different from the applicable form specified in such
Letter of Credit; or
(d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit;
except that the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any direct, but
not consequential, damages suffered by the Borrower that the Borrower proves
were caused by (i) the Issuing Bank's willful misconduct or gross negligence as
determined in a final, nonappealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank's
failure to make lawful payment under a Letter of Credit after the presentation
to it of a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in limitation of the
foregoing, 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.
SECTION 8.09. Confidentiality. Neither any of the Agents nor
any of the Lender Parties shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (a) to such Agent's or
such Lender Party's respective affiliates and their respective officers,
directors, employees, agents, representatives, attorneys, auditors and other
advisors on a confidential basis, (b) to one or more of the other Agents or
other Secured Parties, (c) to actual or prospective Eligible Assignees and
participants, in each case on a confidential basis and otherwise in accordance
with Section 8.07(i), (d) as required by any applicable Requirements of Law or
by subpoena or any other judicial or other legal process, (e) to any rating
agency when required by it; provided that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any
Confidential Information received by it from such Lender Party, (f) as requested
or required by any Governmental Authority or any state, federal or foreign
authority or examiner regulating banks or banking, (g) to any other Person to
which such disclosure may be necessary in connection with any claim, suit,
litigation or proceeding to which such Agent or such Lender Party is a party and
(h) if an Event of Default shall have occurred and be continuing, to the extent
such Agent or such Lender Party reasonably determines that such disclosure is
necessary in the enforcement of or for the protection of the rights and remedies
afforded to it under this Agreement or any of the other Loan Documents.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an originally executed
counterpart of this Agreement.
SECTION 8.11. Governing Law; Jurisdiction, Etc. (a) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property and assets, to the
nonexclusive jurisdiction of any New York state court or any federal court of
the United States of America sitting in New York City, New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan
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Documents to which it is a party, or for recognition or enforcement of any
judgment in respect thereof, 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 any such New York state court or, to
the fullest extent permitted by applicable law, in any such federal court. Each
of the parties hereto hereby irrevocably consents to the service of copies of
any summons and complaint and any other process which may be served in any such
action or proceeding by certified mail, return receipt requested, or by
delivering a copy of such process to such party, at its address specified in
Section 8.02, or by any other method permitted by applicable law. Each of the
parties hereto hereby 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 applicable law. Nothing
in this Agreement shall affect any right that any of the parties hereto may
otherwise have to bring any action or proceeding relating to this Agreement or
any of the other Loan Documents in the courts of any jurisdiction.
(c) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any action
or proceeding arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party in any New York state court or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement, any of the other
Loan Documents, any documents delivered pursuant to the Loan Documents, the
Advances, the Letters of Credit, any aspect of the Transaction or any of the
other transactions contemplated hereby or thereby or the actions of any of the
Agents or any of the Lender Parties in the negotiation, administration,
performance or enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE BORROWER
UNITED INDUSTRIES CORPORATION
By ________________________________________
Name:
Title:
THE AGENTS
NATIONSBANK, N.A., as Administrative Agent
By ________________________________________
Name:
Title:
NATIONSBANC MONTGOMERY SECURITIES
LLC, as Lead Arranger and Book Manager
and a Co-Arranger
By ________________________________________
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication Agent and a Co-Arranger
By ________________________________________
Name:
Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, as Documentation Agent
By ________________________________________
Name:
Title:
THE EXISTING LENDERS AND
THE INITIAL LENDER PARTIES
NATIONSBANK, N.A., as an Existing Lender,
an Initial Lender and the Initial Issuing Bank
By ________________________________________
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
as an Existing Lender and an Initial Lender
By ________________________________________
Name:
Title:
CIBC INC., as an Existing Lender and an Initial
Lender
By ________________________________________
Name:
Title: