Exhibit (b)(8)
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CREDIT AGREEMENT
among
BUILDING ONE SERVICES CORPORATION,
VARIOUS LENDING INSTITUTIONS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS DOCUMENTATION AGENT,
XXXXXXX XXXXX BARNEY INC.,
AS SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
________________________________
Dated as of April 30, 1999
________________________________
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SECTION 1. Amount and Terms of Credit................................. 1
1.01 Commitments................................................. 1
1.02 Minimum Borrowing Amounts, etc.............................. 5
1.03 Notice of Borrowing......................................... 5
1.04 Disbursement of Funds....................................... 6
1.05 Notes....................................................... 7
1.06 Conversions................................................. 8
1.07 Pro Rata Borrowings......................................... 9
1.08 Interest.................................................... 9
1.09 Interest Periods............................................ 10
1.10 Increased Costs; Illegality; etc............................ 11
1.11 Compensation................................................ 13
1.12 Change of Lending Office.................................... 14
1.13 Replacement of Banks........................................ 14
1.14 Additional Commitments...................................... 16
SECTION 2. Letters of Credit.......................................... 19
2.01 Letters of Credit........................................... 19
2.02 Letter of Credit Requests................................... 21
2.03 Letter of Credit Participations............................. 21
2.04 Agreement to Repay Letter of Credit Drawings................ 23
2.05 Increased Costs............................................. 24
SECTION 3. Fees; Commitments.......................................... 25
3.01 Fees........................................................ 25
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan Commitment................................... 26
3.03 Mandatory Reduction of Commitments.......................... 27
SECTION 4. Payments................................................... 27
4.01 Voluntary Prepayments....................................... 27
4.02 Mandatory Repayment......................................... 29
4.03 Method and Place of Payment................................. 35
4.04 Net Payments................................................ 36
SECTION 5. Conditions Precedent to Initial Credit Events.............. 38
5.01 Execution of Agreement; Notes............................... 38
5.02 Officer's Certificate....................................... 38
5.03 Opinions of Counsel......................................... 38
5.04 Corporate Documents; Proceedings............................ 39
5.05 Adverse Change, etc......................................... 39
(i)
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5.06 Litigation.................................................. 40
5.07 Approvals................................................... 40
5.08 Transaction................................................. 40
5.09 Security Documents; etc..................................... 41
5.10 Subsidiaries Guaranty....................................... 42
5.11 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Employment Agreements; Collective
Bargaining Agreements; Existing Indebtedness Agreements;
Material Contracts; Tax Allocation Agreements.................... 42
5.12 Consent Letter.............................................. 44
5.13 Solvency Certificate; Insurance Certificates................ 44
5.14 Financial Statements; Pro Forma Financial Statements;
Projections...................................................... 44
5.15 Payment of Fees............................................. 45
SECTION 6. Conditions Precedent to All Credit Events.................. 45
6.01 No Default; Representations and Warranties.................. 45
6.02 Notice of Borrowing; Letter of Credit Request............... 45
6.03 Compliance With Indentures.................................. 45
SECTION 7. Representations and Warranties............................. 47
7.01 Company Status.............................................. 47
7.02 Company Power and Authority................................. 48
7.03 No Violation................................................ 48
7.04 Litigation.................................................. 48
7.05 Use of Proceeds; Margin Regulations......................... 48
7.06 Governmental Approvals...................................... 49
7.07 Investment Company Act...................................... 49
7.08 Public Utility Holding Company Act.......................... 49
7.09 True and Complete Disclosure................................ 50
7.10 Financial Condition; Financial Statements................... 50
7.11 Security Interests.......................................... 51
7.12 Compliance with ERISA....................................... 51
7.13 Capitalization.............................................. 52
7.14 Subsidiaries................................................ 52
7.15 Intellectual Property, etc.................................. 53
7.16 Compliance with Statutes, etc............................... 53
7.17 Environmental Matters....................................... 53
7.18 Properties.................................................. 54
7.19 Labor Relations............................................. 54
7.20 Tax Returns and Payments.................................... 54
7.21 Existing Indebtedness....................................... 55
7.22 Insurance................................................... 55
7.23 Representations and Warranties in Other Documents........... 55
7.24 Transaction................................................. 55
7.25 Year 2000 Compliance........................................ 55
7.26 Subordination............................................... 55
(ii)
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SECTION 8. Affirmative Covenants...................................... 56
8.01 Information Covenants....................................... 56
8.02 Books, Records and Inspections.............................. 59
8.03 Insurance................................................... 60
8.04 Payment of Taxes............................................ 61
8.05 Corporate Franchises........................................ 61
8.06 Compliance with Statutes; etc............................... 61
8.07 Compliance with Environmental Laws.......................... 61
8.08 ERISA....................................................... 62
8.09 Good Repair................................................. 63
8.10 End of Fiscal Years; Fiscal Quarters........................ 63
8.11 Additional Security; Further Assurances..................... 63
8.12 Foreign Subsidiaries Security............................... 64
8.13 Use of Proceeds............................................. 65
8.14 Permitted Acquisitions...................................... 65
8.15 Maintenance of Company Separateness......................... 67
8.16 Performance of Obligations.................................. 67
8.17 Year 2000 Compliance........................................ 67
8.18 Margin Regulations.......................................... 67
8.19 Common Stock Repurchase..................................... 68
SECTION 9. Negative Covenants......................................... 68
9.01 Changes in Business......................................... 68
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc...... 68
9.03 Liens....................................................... 71
9.04 Indebtedness................................................ 73
9.05 Advances; Investments; Loans................................ 75
9.06 Dividends; etc.............................................. 78
9.07 Transactions with Affiliates................................ 80
9.08 Consolidated Interest Coverage Ratio........................ 80
9.09 Adjusted Total Leverage Ratio............................... 81
9.10 Capital Expenditures........................................ 81
9.11 Designated Senior Debt...................................... 83
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Issuances of Capital
Stock; etc.................................................. 83
9.13 Limitation on Issuance of Capital Stock..................... 85
9.14 Limitation on Certain Restrictions on Subsidiaries.......... 86
9.15 Limitation on the Creation of Subsidiaries and Joint
Ventures.................................................... 87
SECTION 10. Events of Default......................................... 88
10.01 Payments................................................... 88
10.02 Representations, etc....................................... 88
10.03 Covenants.................................................. 88
10.04 Default Under Other Agreements............................. 88
(iii)
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10.05 Bankruptcy, etc............................................ 88
10.06 ERISA...................................................... 89
10.07 Security Documents......................................... 89
10.08 Subsidiaries Guaranty...................................... 90
10.09 Judgments.................................................. 90
10.10 Ownership.................................................. 90
SECTION 11. Definitions............................................... 90
SECTION 12. The Agents................................................ 123
12.01 Appointment................................................ 123
12.02 Delegation of Duties....................................... 124
12.03 Exculpatory Provisions..................................... 124
12.04 Reliance by Agents......................................... 124
12.05 Notice of Default.......................................... 125
12.06 Nonreliance on Agents and Other Banks...................... 125
12.07 Indemnification............................................ 126
12.08 Agents in their Individual Capacities...................... 126
12.09 Holders.................................................... 127
12.10 Resignation of the Agents.................................. 127
SECTION 13. Miscellaneous............................................. 128
13.01 Payment of Expenses, etc................................... 128
13.02 Right of Setoff............................................ 129
13.03 Notices.................................................... 129
13.04 Benefit of Agreement....................................... 129
13.05 No Waiver; Remedies Cumulative............................. 132
13.06 Payments Pro Rata.......................................... 132
13.07 Calculations; Computations................................. 132
13.08 Governing Law; Submission to Jurisdiction; Venue........... 133
13.09 Counterparts............................................... 134
13.10 Effectiveness.............................................. 134
13.11 Headings Descriptive....................................... 134
13.12 Amendment or Waiver; etc................................... 134
13.13 Survival................................................... 136
13.14 Domicile of Loans and Commitments.......................... 136
13.15 Confidentiality............................................ 136
13.16 Waiver of Jury Trial....................................... 136
13.17 Register................................................... 136
13.18 Limitation on Additional Amounts, etc...................... 137
13.19 Certain Agreements with Respect to the Convertible
Subordinated Notes......................................... 137
13.20 Post-Closing Actions....................................... 138
SCHEDULE I List of Banks and Commitments
SCHEDULE II Bank Addresses
(iv)
SCHEDULE III Real Properties
SCHEDULE IV Existing Indebtedness
SCHEDULE V Pension Plans
SCHEDULE VI Existing Investments
SCHEDULE VII Subsidiaries
SCHEDULE VIII Insurance
SCHEDULE IX Existing Liens
SCHEDULE X Capitalization
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B-1 - Form of Tranche A Term Note
EXHIBIT B-2 - Form of Tranche B Term Note
EXHIBIT B-3 - Form of Revolving Note
EXHIBIT B-4 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 - Form of Opinion of Xxxxxx, Xxxxx & Xxxxxxx, LLP,
special counsel to the Credit Parties
EXHIBIT E-2 - Form of Opinion of X'Xxxxxxxx Graev & Karabell LLP,
special counsel to the Credit Parties
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G - Form of Pledge Agreement
EXHIBIT H - Form of Security Agreement
EXHIBIT I - Form of Subsidiaries Guaranty
EXHIBIT J - Form of Consent Letter
EXHIBIT K - Form of Solvency Certificate
EXHIBIT L - Form of Assignment and Assumption Agreement
EXHIBIT M - Form of Intercompany Note
EXHIBIT N - Form of Shareholder Subordinated Note
EXHIBIT O-1 - Form of Tranche B Term Loan Commitment Agreement
EXHIBIT O-2 - Form of Additional Revolving Loan Commitment Agreement
(v)
CREDIT AGREEMENT, dated as of April 30, 1999, among BUILDING ONE
SERVICES CORPORATION, a Delaware corporation (the "Borrower"), the lenders from
time to time party hereto (each, a "Bank" and, collectively, the "Banks"),
XXXXXXX XXXXX CREDIT PARTNERS L.P., as Documentation Agent (in such capacity,
the "Documentation Agent"), XXXXXXX XXXXX BARNEY INC., as Syndication Agent (in
such capacity, the "Syndication Agent"), and BANKERS TRUST COMPANY, as
Administrative Agent (in such capacity, the "Administrative Agent" and, together
with the Documentation Agent and the Syndication Agent, each, an "Agent" and
collectively the "Agents"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 11 are used herein as so defined.
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
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1.01 Commitments. (a) Subject to and upon the terms and conditions
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set forth herein, each Bank with a Tranche A Term Loan Commitment severally
agrees to make a term loan (each, a "Tranche A Term Loan" and, collectively, the
"Tranche A Term Loans") to the Borrower, which Tranche A Term Loans:
(i) shall be incurred by the Borrower pursuant to a single drawing
on the Initial Borrowing Date for the purposes described in Section
7.05(a);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided, that (x) except as otherwise
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specifically provided in Section 1.10(b), all Tranche A Term Loans made as
part of the same Borrowing shall at all times consist of Tranche A Term
Loans of the same Type and (y) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this
clause (y) shall no longer be applicable), no more than three Borrowings of
Tranche A Term Loans to be maintained as Eurodollar Loans may be incurred
prior to the 90th day after the Initial Borrowing Date (or, if later, the
last day of the Interest Period applicable to the third Borrowing of
Eurodollar Loans referred to below), each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of which
Borrowings may only be made on, or within five Business Days after, the
Initial Borrowing Date, the second of which Borrowings may only be made on
the last day of the Interest Period of the first such Borrowing and the
third of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing; and
(iv) shall be made by each Bank in that initial aggregate principal
amount as is equal to the Tranche A Term Loan Commitment of such Bank on
the Initial Borrowing
Date (before giving effect to the termination thereof on such date pursuant
to Section 3.03(b)).
Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forth
(including, on and after the initial Additional Revolving Loan Commitment Date,
Section 1.14), each RL Bank severally agrees, at any time and from time to time
on and after the Initial Borrowing Date and prior to the Revolving Loan Maturity
Date, to make a revolving loan or revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall, at the option of the Borrower, be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
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that (x) except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans made as part of the same Borrowing shall at all times be of
the same Type and (y) unless the Administrative Agent has determined that
the Syndication Date has occurred, no more than three Borrowings of
Revolving Loans to be maintained as Eurodollar Loans may be incurred prior
to the 90th day after the Initial Borrowing Date (or, if later, the last
day of the Interest Period applicable to the third Borrowing of Eurodollar
Loans referred to below), each of which Borrowings of Eurodollar Loans may
only have an Interest Period of one month, and the first of which
Borrowings may only be made on the same date as the initial Borrowing of
Tranche A Term Loans that are maintained as Eurodollar Loans, the second of
which Borrowings may only be made on the last day of the Interest Period of
the first such Borrowing and the third of which Borrowings may only be made
on the last day of the Interest Period of the second such Borrowing;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such
time; and
(v) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to (x) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
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incurrence of, the respective incurrence of Revolving Loans) then
outstanding, exceeds an amount equal to the Total Revolving Loan Commitment
then in effect.
(c) Subject to and upon the terms and conditions set forth herein,
BTCo in its individual capacity agrees to make at any time and from time to time
on and after the Initial Borrowing Date and prior to the Swingline Expiry Date,
a revolving loan or revolving loans to the Borrower (each, a "Swingline Loan"
and, collectively, the "Swingline Loans"), which Swingline Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with (x) the aggregate principal amount of all
Revolving Loans then outstanding and (y) the aggregate amount of all Letter
of Credit Outstandings at such time, an amount equal to the Total Revolving
Loan Commitment at such time (after giving effect to any changes thereto on
such date); and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
Notwithstanding anything contained in this Section 1.01(c), (i) BTCo shall not
be obligated to make any Swingline Loans at a time when a Bank Default exists
unless BTCo has entered into arrangements satisfactory to it and the Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and
(ii) BTCo will not make a Swingline Loan after it has received written notice
from the Borrower or the Required Banks stating that a Default or an Event of
Default exists until such time as BTCo shall have received a written notice of
(i) rescission of such notice from the party or parties originally delivering
the same or (ii) a waiver of such Default or Event of Default from the Required
Banks.
(d) On any Business Day, BTCo may, in its sole discretion, give
notice to the XX Xxxxx that its outstanding Swingline Loans shall be funded with
a Borrowing of Revolving Loans (provided that each such notice shall be deemed
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to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all XX
Xxxxx pro rata based on each RL Bank's RL Percentage (determined before giving
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effect to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), and the proceeds thereof shall be applied directly to
repay BTCo for such outstanding Swingline Loans. Each RL Bank hereby
irrevocably agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the
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amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified in
Section 5 or 6 are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan Commitment at such
time. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each RL Bank (other than BTCo) hereby agrees that it shall
forthwith purchase from BTCo (without recourse or warranty) such assignment of
the outstanding Swingline Loans as shall be necessary to cause the XX Xxxxx to
share in such Swingline Loans ratably based upon their respective RL Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
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interest payable on the Swingline Loans shall be for the account of BTCo until
the date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the RL Bank purchasing same
from and after such date of purchase (or, if earlier, from the date on which the
Mandatory Borrowing would otherwise have occurred, so long as the payments
required by following clause (y) have in fact been made) and (y) at the time any
purchase of assignments pursuant to this sentence is actually made, the
purchasing RL Bank shall be required to pay BTCo interest on the principal
amount of assignment purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such assignment, at the rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
(e) Subject to Section 1.14 and the other terms and conditions set
forth herein, each Bank with a Tranche B Term Loan Commitment severally agrees
to make on each Tranche B Term Loan Commitment Date a term loan (each, a
"Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the
Borrower, which Tranche B Term Loans:
(i) shall be incurred by the Borrower on such Tranche B Term Loan
Commitment Date for the purposes described in Section 7.05(c);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided, that except as otherwise specifically
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provided in Section 1.10(b), all Tranche B Term Loans made as part of the
same Borrowing shall at all times consist of Tranche B Term Loans of the
same Type; and
(iv) shall be made by each such Bank in that initial aggregate
principal amount as is equal to the Tranche B Term Loan Commitment of such
Bank on such Tranche B Term Loan Commitment Date (before giving effect to
the termination thereof on such date pursuant to Section 3.03(c)).
Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
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1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
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of each Borrowing of Loans under a respective Tranche shall not be less than the
Minimum Borrowing Amount applicable to such Tranche, provided that Mandatory
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Borrowings shall be made in the amounts required by Section 1.01(d). More than
one Borrowing may be incurred on any day, provided, that at no time shall there
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be outstanding more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make
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a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such written notice or written
confirmation of telephonic notice (each, a "Notice of Borrowing") shall, except
as otherwise expressly provided in Section 1.10, be irrevocable, and, in the
case of each written notice and each confirmation of telephonic notice, shall be
given by an Authorized Officer of the Borrower in the form of Exhibit A,
appropriately completed to specify: (i) the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) whether the respective Borrowing shall
consist of Tranche A Term Loans, Tranche B Term Loans or Revolving Loans, (iv)
whether the respective Borrowing shall consist of Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto and (v) in the case of a
Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, the purchase price of a Permitted Acquisition, (x)
a reference to the officer's certificate, if any, delivered in accordance with
Section 8.14, (y) the aggregate principal amount of such Revolving Loans to be
utilized in connection with such Permitted Acquisition and (z) the Total
Unutilized Revolving Loan Commitment then in effect after giving effect to the
respective Permitted Acquisition (and all payments to be made in connection
therewith). The Administrative Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing, of such Bank's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice (or deemed
notice) specified in Section 1.01(d), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in such Section 1.01(d).
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(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or the Letter of Credit Issuer, as the case may be,
in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Administrative Agent's, BTCo's or the respective Letter of Credit
Issuer's, as the case may be, record of the terms of such telephonic notice
shall be conclusive evidence of the contents of such notice, absent manifest
error.
1.04 Disbursement of Funds. (a) Not later than 1:00 P.M. (New York
---------------------
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(d)), each Bank
with a Commitment under the respective Tranche will make available its pro rata
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share (determined in accordance with Section 1.07), if any, of each Borrowing
requested to be made on such date (or in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below. All
amounts shall be made available to the Administrative Agent in U.S. Dollars and
in immediately available funds at the Payment Office and the Administrative
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the
overnight Federal Funds Rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08.
(b) Nothing in this Agreement shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by such
Bank hereunder.
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1.05 Notes. (a) The Borrower's obligation to pay the principal of,
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and interest on, all the Loans made to it by each Bank shall be set forth on the
Register maintained by the Administrative Agent pursuant to Section 13.17 and,
subject to the provisions of Section 1.05(g), shall be evidenced (i) if Tranche
A Term Loans, by a promissory note substantially in the form of Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, a "Tranche A Term
Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term
Loans, by a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Revolving Loans, by a
promissory note substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes") and (iv) if Swingline Loans, by a
promissory note substantially in the form of Exhibit B-4 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Bank with a Tranche A Term
Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to such
Bank or its registered assigns and be dated the Initial Borrowing Date (or, in
the case of any Tranche A Term Note issued after the Initial Borrowing Date, the
date of issuance thereof), (iii) be in a stated principal amount equal to the
Tranche A Term Loan Commitment of such Bank on the Initial Borrowing Date (or,
in the case of any Tranche A Term Note issued after the Initial Borrowing Date,
in a stated principal amount equal to the outstanding principal amount of the
Tranche A Term Loan of such Bank on the date of the issuance thereof) and be
payable in the principal amount of Tranche A Term Loans evidenced thereby from
time to time, (iv) mature on the Tranche A Term Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank with a Tranche B Term
Loan Commitment and/or outstanding Tranche B Term Loans shall (i) be executed by
the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the date of issuance thereof, (iii) be in a stated principal amount equal
to the Tranche B Term Loan Commitment of such Bank on the Tranche B Term Loan
Commitment Date on which such Tranche B Term Loan Commitment becomes effective
(or, in the case of any Tranche B Term Note issued after such Tranche B Term
Loan Commitment Date, in a stated principal amount equal to the outstanding
principal amount of the Tranche B Term Loan of such Bank on the date of the
issuance thereof) and be payable in the principal amount of Tranche B Term Loans
evidenced thereby from time to time, (iv) mature on the Tranche B Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Revolving Note issued to each RL Bank shall (i) be executed
by the Borrower, (ii) be payable to such RL Bank or its registered assigns and
be dated the date of issuance thereof, (iii) be in a stated principal amount
equal to the Revolving Loan Commitment
-7-
of such RL Bank and be payable in the principal amount of the outstanding
Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(e) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to BTCo or its registered assigns and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount equal to the
Maximum Swingline Amount and be payable in the principal amount of the
outstanding Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(f) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(g) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Banks which at any
time specifically request the delivery of such Notes. No failure of any Bank to
request or obtain a Note evidencing its Loans to the Borrower shall affect or in
any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) which would otherwise be evidenced thereby in accordance
with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit
Documents. Any Bank which does not have a Note evidencing its outstanding Loans
shall in no event be required to make the notations otherwise described in
preceding clause (f). At any time when any Bank requests the delivery of a Note
to evidence any of its Loans, the Borrower shall promptly execute and deliver to
the respective Bank the requested Note in the appropriate amount or amounts to
evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
-----------
any Business Day occurring on or after the Initial Borrowing Date, all or a
portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of Loans (other than Swingline Loans, which shall
at all times be maintained as Base Rate Loans) made pursuant to one or more
Borrowings of one or more Types of Loans under a single Tranche into a Borrowing
or Borrowings of another Type of Loan under such Tranche; provided, that (i)
--------
except as otherwise provided in Section 1.10(b) or unless the Borrower pays all
breakage costs and other amounts owing to each Bank pursuant to Section 1.11
concurrently with any such conversion, Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted, and no partial conversion of a Borrowing of Eurodollar
Loans shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii)
-8-
unless the Required Lenders otherwise agree, Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion, (iii) unless the Administrative Agent
has determined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 90th day after the Initial
Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans may only be
made if any such conversion is effective on the first day of the first, second
or third Interest Period referred to in clause (y) of each of Sections
1.01(a)(iii) and 1.01(b)(ii) and so long as such conversion does not result in a
greater number of Borrowings of Eurodollar Loans prior to the 90th day after the
Initial Borrowing Date as are permitted under each of Sections 1.01(a)(iii) and
1.01(b)(ii) and (iv) Borrowings of Eurodollar Loans resulting from this Section
1.06 shall be limited in number as provided in Section 1.02. Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at its Notice Office, prior to 12:00 Noon (New York time), at least three
Business Days' (or one Business Day's in the case of a conversion into Base Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing)
(each, a "Notice of Conversion") specifying the Loans to be so converted, the
Borrowing(s) pursuant to which the Loans were made and, if to be converted into
a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Bank prompt notice of any such
proposed conversion affecting any of its Loans. Upon any such conversion, the
proceeds thereof will be deemed to be applied directly on the day of such
conversion to prepay the outstanding principal amount of the Loans being
converted.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
-------------------
Tranche B Term Loans and Revolving Loans under this Agreement shall be incurred
by the Borrower from the Banks pro rata on the basis of such Banks' Tranche A
--- ----
Term Loan Commitments, Tranche B Term Loan Commitments or Revolving Loan
Commitments, as the case may be, in each case as in effect on the date of the
respective Borrowing; provided that all Borrowings of Revolving Loans made
--------
pursuant to a Mandatory Borrowing shall be incurred from the XX Xxxxx pro rata
--- ----
on the basis of their respective RL Percentages. It is understood that no Bank
shall be responsible for any default by any other Bank of its obligation to make
Loans hereunder and that each Bank shall be obligated to make the Loans to be
made by it hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate
--------
Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Base Rate, each as in effect from time to
----
time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the relevant Applicable Margin plus the Eurodollar Rate for such
----
Interest Period, each as in effect from time to time.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (x) the rate
-9-
which is 2% in excess of the rate borne by the respective such Loans immediately
prior to the respective payment default and (y) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans from time to time. Interest
which accrues under this Section 1.08(c) shall be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount prepaid or
repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives a Notice of
----------------
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the Borrower shall have the right to elect by giving the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower (but otherwise subject to clause (y) of the proviso
to Sections 1.01(a)(iii) and 1.01(b)(ii) and to clause (iii) of the proviso to
Section 1.06), be a one, two, three, six or, to the extent available to each
Bank with outstanding Loans and/or Commitments under the respective Tranche,
nine or twelve month period. Notwithstanding anything to the contrary contained
above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period applicable thereto expires;
-10-
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period for any
--------
Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall be
selected which would extend beyond the respective Maturity Date for such
Tranche;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans or Tranche B Term Loans shall be elected which extends beyond
any date upon which a Scheduled Repayment of such Tranche of Term Loans
will be required to be made under Section 4.02(b) if, after giving effect
to the election of such Interest Period, the aggregate principal amount of
such Tranche A Term Loans or Tranche B Term Loans, as the case may be,
which have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of such Tranche A Term Loans or
Tranche B Term Loans, as the case may be, then outstanding less the
aggregate amount of such required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, the Borrower shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any changes
arising after Effective Date affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the date of this
Agreement in any applicable law, governmental rule, regulation, guideline,
order or request (whether or not having the force of law), or in
-11-
the interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, guideline, order or
request, such as, for example, but not limited to, (A) a change in the
basis of taxation of payment to any Bank of the principal of or interest on
such Eurodollar Loans or any other amounts payable hereunder (except for
changes with respect to any tax imposed on, or determined by reference to,
the net income, net profits or capital (including branch profits tax) of
such Bank or any franchise tax based on the net income or net profits of
such Bank pursuant to the laws of the jurisdiction in which such Bank is
organized, or in which such Bank's principal office or applicable lending
office is located or any subdivision thereof or therein), or (B) a change
in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate and/or (y) other circumstances affecting such Bank, the
interbank Eurodollar market or the position of such Bank in such market; or
(iii) at any time since the date of this Agreement, that the making
or continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank with any law, governmental rule, regulation, guideline or order
(or would conflict with any governmental rule, regulation, guideline,
request or order not having the force of law but with which such Bank
customarily complies even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and (except in the case of clause (i)) to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter, (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the Banks
that the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower agrees, subject to the provisions
of Section 13.18 (to the extent applicable), to pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts received or receivable
hereunder but without duplication of any payments due under Section 4.04 (a
written notice as to the additional amounts owed to such Bank, showing in
reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(a) upon the subsequent receipt
of such notice) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
-12-
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or
(iii)), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Bank to convert each such Eurodollar Loan into a Base Rate Loan (which
conversion, in the case of the circumstance described in Section 1.10(a)(iii),
shall occur no later than the last day of the Interest Period then applicable to
such Eurodollar Loan or such earlier day as shall be required by applicable
law); provided, that if more than one Bank is affected at any time, then all
--------
affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank or any corporation controlling such Bank
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Bank's or such
other corporation's capital or assets as a consequence of such Bank's Commitment
or Commitments hereunder or its obligations hereunder to a level below that
which such Bank or such other corporation could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Bank's or such other corporation's policies with respect to capital adequacy),
then from time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), accompanied by the notice referred to in the last
sentence of this clause (c), the Borrower agrees, subject to the provisions of
Section 13.18 (to the extent applicable), to pay to such Bank such additional
amount or amounts as will compensate such Bank or such other corporation for
such reduction in the rate of return to such Bank or such other corporation.
Each Bank, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower (a copy of which shall be sent by such Bank to the
Administrative Agent), which notice shall set forth in reasonable detail the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice. A Bank's reasonable good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto.
1.11 Compensation. The Borrower agrees, subject to the provisions of
------------
Section 13.18 (to the extent applicable), to compensate each Bank, promptly upon
its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Eurodollar Loans) which such Bank may sustain:
(i) if for any reason (other than a default by such Bank or any Agent) a
Borrowing of, or conversion
-13-
from or into, Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion given by the Borrower (whether or
not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.01 or
4.02 or as a result of an acceleration of the Loans pursuant to Section 10 or as
a result of the replacement of a Bank pursuant to Section 1.13 or 13.12(b)) or
conversion of any Eurodollar Loans of the Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto; (iii) if any prepayment
of any Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or (y) an election made by the Borrower pursuant to Section
1.10(b). Each Bank's calculation of the amount of compensation owing pursuant to
this Section 1.11 shall be made in good faith. A Bank's basis for requesting
compensation pursuant to this Section 1.11 and a Bank's calculation of the
amount thereof, shall, absent manifest error, be final and conclusive and
binding on all parties hereto.
1.12 Change of Lending Office. Each Bank agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans or Letters of
Credit affected by such event; provided, that such designation is made on such
--------
terms that, in the sole judgment of such Bank, such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequences of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Section 1.10,
2.05 or 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting
--------------------
Bank, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Bank which results in such Bank charging to the Borrower
increased costs in a material amount in excess of those being generally charged
by the other Banks or (z) in the case of a refusal by a Bank to consent to a
proposed change, waiver, discharge or termination with respect to this Agreement
which has been approved by the Required Banks as provided in Section 13.12(b),
the Borrower shall have the right, in accordance with Section 13.04(b), if no
Default or Event of Default then exists or would exist after giving effect to
such replacement, to replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") and each of whom shall be reasonably acceptable to the Administrative
Agent or, at the option of the Borrower, to replace only (a) the Revolving Loan
Commitment (and outstandings pursuant thereto) of the Replaced Bank with an
identical Revolving Loan Commitment provided by the Replacement Bank or (b) in
the case of a replacement as provided in Section 13.12(b) where the consent of
the respective Bank is required with respect to less than all Tranches of its
Loans or Commitments, the Commitments and/or outstanding Loans of such Bank in
respect of each Tranche where the consent of such Bank would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Bank; provided that:
--------
-14-
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Bank) pursuant to
which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans and participations in Letter of Credit Outstandings and/or
(b) the outstanding Term Loans of any Tranche, the outstanding Term Loans
of the respective Tranche or Tranches) of, and in each case (except for the
replacement of only the outstanding Term Loans of any or all Tranches of
Term Loans of the respective Bank) participations in Letters of Credit by,
the Replaced Bank and, in connection therewith, shall pay to (x) the
Replaced Bank in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all
outstanding Loans (or of the Loans of the respective Tranche being
replaced) of the Replaced Bank, (B) an amount equal to all Unpaid Drawings
(unless there are no Unpaid Drawings with respect to the Tranche being
replaced) that have been funded by (and not reimbursed to) such Replaced
Bank, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche,
in the case of the replacement of less than all Tranches of Loans then held
by the respective Replaced Bank) pursuant to Section 3.01, (y) except in
the case of the replacement of only the outstanding Term Loans of one or
more Tranches of a Replaced Bank, each Letter of Credit Issuer an amount
equal to such Replaced Bank's RL Percentage of any Unpaid Drawing relating
to Letters of Credit issued by such Letter of Credit Issuer (which at such
time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank and (z) in the case of any
replacement of Revolving Loan Commitments, BTCo an amount equal to such
Replaced Bank's RL Percentage of any Mandatory Borrowing to the extent such
amount was not theretofore funded by such Replaced Bank; and
(ii) all obligations of the Borrower then owing to the Replaced Bank
(other than those (a) specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being,
paid, but including all amounts, if any, owing under Section 1.11 or (b)
relating to any Tranche of Loans and/or Commitments of the respective
Replaced Bank which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Bank
concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 13.17
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder and, unless the respective Replaced Bank
continues to have outstanding Term Loans and/or a Revolving Loan Commitment
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which
shall survive as to such Replaced Bank
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and (y) except in the case of the replacement of only outstanding Term Loans,
the RL Percentages of the Banks shall be automatically adjusted at such time to
give effect to such replacement.
1.14 Additional Commitments. (a) So long as the Additional Loan
----------------------
Commitment Requirements are satisfied at the time of the delivery of the written
notice referred to below, the Borrower shall have the right at any time and from
time to time and upon at least 30 days prior written notice to the
Administrative Agent, to request on one or more occasions that one or more Banks
(and/or one or more other Persons which will become Banks as provided below)
provide:
(I) Tranche B Term Loan Commitments and, subject to the applicable
terms and conditions contained in this Agreement and the relevant Tranche B
Term Loan Commitment Agreement, make Tranche B Term Loans pursuant thereto,
it being understood and agreed, however, that (i) no Bank shall be
obligated to provide a Tranche B Term Loan Commitment as a result of any
request by the Borrower, (ii) until such time, if any, as (x) such Bank has
agreed in its sole discretion to provide a Tranche B Term Loan Commitment
and executed and delivered to the Administrative Agent a Tranche B Term
Loan Commitment Agreement in respect thereof as provided in Section 1.14(b)
below and (y) the other conditions set forth in Section 1.14(b) shall have
been satisfied, such Bank shall not be obligated to fund any Tranche B Term
Loans, (iii) any Bank (or, in the circumstances contemplated by clause
(vii) below, any other Person which will qualify as an Eligible Transferee)
may so provide a Tranche B Term Loan Commitment without the consent of any
other Bank, (iv) each provision of Tranche B Term Loan Commitments pursuant
to this Section 1.14 on a given date, and the amount of each Tranche B Term
Loan Sub-Facility, shall be in a minimum aggregate amount (for all Banks
(including, in the circumstances contemplated by clause (vii) below,
Eligible Transferees who will become Banks)) of at least $20,000,000, (v)
the aggregate amount of all Tranche B Term Loan Commitments permitted to be
provided pursuant to this Section 1.14 and the aggregate principal amount
of Tranche B Term Loans permitted to be made pursuant to Section 1.01(e)
shall not, in either case, when added to the aggregate amount of all
Additional Revolving Loan Commitments permitted to be provided pursuant to
this Section 1.14, exceed $100,000,000, (vi) the up-front fees payable in
respect of the Tranche B Term Loan Commitments and Tranche B Term Loans
under a Tranche B Term Loan Sub-Facility shall be as set forth in the
Tranche B Term Loan Commitment Agreement for such Tranche B Term Loan Sub-
Facility, (vii) if, after the Borrower has requested the then existing
Banks (other than Defaulting Banks) to provide Tranche B Term Loan
Commitments pursuant to this Section 1.14 on the terms to be applicable to
the respective Tranche B Term Loan Sub-Facility, the Borrower has not
received Tranche B Term Loan Commitments in an aggregate amount equal to
that amount of Tranche B Term Loan Commitments which the Borrower desires
to obtain pursuant to such request (as set forth in the notice provided by
the Borrower to the Administrative Agent as provided above), then the
Borrower may request Tranche B Term Loan Commitments from Persons which
would qualify as Eligible Transferees hereunder in aggregate amount equal
to such deficiency on terms which are no more favorable to such Eligible
Transferee in any respect than the terms offered to the Banks, provided
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that any such Tranche B Term Loan Commitments provided by any such Eligible
Transferee which is not already a Bank shall be in a minimum amount (for
such
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Eligible Transferee) of at least $5,000,000, and (viii) all actions
taken by the Borrower pursuant to this Section 1.14(a)(I) shall be done in
coordination with the Administrative Agent; and/or
(II) Additional Revolving Loan Commitments and, subject to the
applicable terms and conditions contained in this Agreement and the
relevant Additional Revolving Loan Commitment Agreement, make Revolving
Loans pursuant to Section 1.01(b), it being understood and agreed, however,
that (i) no Bank shall be obligated to provide an Additional Revolving Loan
Commitment as a result of any request by the Borrower, (ii) until such
time, if any, as (x) such Bank has agreed in its sole discretion to provide
an Additional Revolving Loan Commitment and executed and delivered to the
Administrative Agent an Additional Revolving Loan Commitment Agreement in
respect thereof as provided in Section 1.14(c) and (y) such other
conditions set forth in Section 1.14(c) shall have been satisfied, such
Bank shall not be obligated to fund any Revolving Loans, or participate in
any Letters of Credit, in excess of the amounts provided for in Section
1.01(b) or 2.03, as the case may be, before giving effect to such
Additional Revolving Loan Commitments provided pursuant to this Section
1.14, (iii) any Bank (or, in the circumstances contemplated by clause (vii)
below, any other Person which will qualify as an Eligible Transferee) may
so provide an Additional Revolving Loan Commitment without the consent of
any other Bank, (iv) each provision of Additional Revolving Loan
Commitments on a given date pursuant to this Section 1.14 shall be in a
minimum aggregate amount (for all Banks (including, in the circumstances
contemplated by clause (vii) below, Eligible Transferees who will become
Banks)) of at least $20,000,000, (v) the aggregate amount of all Additional
Revolving Loan Commitments permitted to be provided pursuant to this
Section 1.14, when added to the aggregate amount of all Tranche B Term Loan
Commitments permitted to be provided pursuant to this Section 1.14 or the
aggregate principal amount of Tranche B Term Loans permitted to be made
pursuant to Section 1.01(e), shall not, in either case, exceed
$100,000,000, (vi) the fees payable to any Bank providing an relevant
Additional Revolving Loan Commitment shall be as set forth in the relevant
Additional Revolving Loan Commitment Agreement, (vii) if, after the
Borrower has requested the then existing Banks (other than Defaulting
Banks) to provide Additional Revolving Loan Commitments pursuant to this
Section 1.14 on the terms to be applicable thereto, the Borrower has not
received Additional Revolving Loan Commitments in an aggregate amount equal
to that amount of the Additional Revolving Loan Commitments which the
Borrower desires to obtain pursuant to such request (as set forth in the
notice provided by the Borrower to the Administrative Agent as provided
above), then the Borrower may request Additional Revolving Loan Commitments
from Persons which would qualify as Eligible Transferees hereunder in
aggregate amount equal to such deficiency on terms which are no more
favorable to such Eligible Transferee in any respect than the terms offered
to the Banks, provided that any such Additional Revolving Loan Commitments
--------
provided by any such Eligible Transferee which is not already a Bank shall
be in a minimum amount (for such Eligible Transferee) of at least
$5,000,000, and (viii) all actions taken by the Borrower pursuant to this
Section 1.14(a)(II) shall be done in coordination with the Administrative
Agent.
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(b) At the time of any provision of Tranche B Term Loan Commitments
pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent and
each such Bank or other Eligible Transferee (each, a "Tranche B Term Loan Bank")
which agrees to provide a Tranche B Term Loan Commitment shall execute and
deliver to the Administrative Agent a Tranche B Term Loan Commitment Agreement
substantially in the form of Exhibit O-1, subject to such modifications in form
and substance satisfactory to the Administrative Agent as may be necessary or
appropriate in the case of any Tranche B Term Loan Sub-Facility (with the
effectiveness of such Tranche B Term Loan Bank's Tranche B Term Loan Commitment
to occur upon delivery of such Tranche B Term Loan Commitment Agreement to the
Administrative Agent, the payment of any fees required in connection therewith
and the satisfaction of the other conditions in this Section 1.14(b) to the
satisfaction of the Administrative Agent), (ii) if the proceeds of the Tranche B
Term Loans of the respective Tranche B Term Loan Sub-Facility are to be utilized
to finance a Permitted Acquisition on the respective Tranche B Term Loan
Commitment Date, the Borrower shall deliver to the Administrative Agent the
officer's certificate required to be delivered pursuant to Section 8.14(a)(x) in
connection with such Permitted Acquisition , (iii) the Additional Loan
Commitment Requirements shall have been satisfied and (iv) the Borrower shall
deliver to the Administrative Agent an opinion, in form and substance
satisfactory to the Agents, from counsel to the Borrower satisfactory to the
Agents and dated such date, covering such matters similar to those set forth in
the opinion of counsel delivered to the Administrative Agent on the Initial
Borrowing Date pursuant to Section 5.03 and such other matters as the Agents may
reasonably request. The Administrative Agent shall promptly notify each Bank as
to the occurrence of each Tranche B Term Loan Commitment Date, and (x) on each
such date Schedule I shall be deemed modified to reflect the Tranche B Term Loan
Commitments of such Tranche B Term Loan Banks and (y) to the extent requested by
such Tranche B Term Loan Banks, Tranche B Term Notes will be issued, at the
Borrower's expense, to such Tranche B Term Loan Banks, to be in conformity with
the requirements of Section 1.05 (with appropriate modifications) to the extent
needed to reflect the new Tranche B Term Loan Commitments.
(c) At the time of any provision of Additional Revolving Loan
Commitments pursuant to this Section 1.14, (i) the Borrower, the Administrative
Agent and each such Bank or other Eligible Transferee (each, an "Additional
Revolving Loan Bank") which agrees to provide an Additional Revolving Loan
Commitment shall execute and deliver to the Administrative Agent a Revolving
Loan Commitment Agreement substantially in the form of Exhibit O-2, subject to
such modifications in form and substance satisfactory to the Administrative
Agent as may be necessary or appropriate (with the effectiveness of such
Additional Revolving Loan Bank's Additional Revolving Loan Commitment to occur
upon delivery of such Revolving Loan Commitment Agreement to the Administrative
Agent, the payment of any fees required in connection therewith and the
satisfaction of the other conditions in this Section 1.14(c) to the satisfaction
of the Administrative Agent), (ii) if the proceeds of the Revolving Loans to be
incurred pursuant to such Additional Revolving Loan Commitment are to be
utilized to finance a Permitted Acquisition on the respective Additional
Revolving Loan Commitment Date, the Borrower shall deliver to the Administrative
Agent the officer's certificate required to be delivered pursuant to Section
8.14(a)(x) in connection with such proposed Permitted Acquisition, (iii) the
Additional Loan Commitment Requirements shall have been satisfied, (iv) the
Borrower shall, in coordination with the Administrative Agent, repay all
outstanding Revolving Loans of the XX Xxxxx, and incur additional Revolving
Loans from other XX Xxxxx in each case so that
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the XX Xxxxx participate in each Borrowing of Revolving Loans pro rata on the
basis of their respective Revolving Loan Commitments (after giving effect to any
increase in the Total Revolving Loan Commitment pursuant to this Section 1.14)
and with the Borrower being obligated to pay the respective XX Xxxxx the costs
of the type referred to in Section 1.11 in connection with any such repayment
and/or Borrowing and (v) the Borrower shall deliver to the Administrative Agent
an opinion, in form and substance satisfactory to the Agents, from counsel to
the Borrower satisfactory to the Agents and dated such date, covering such
matters similar to those set forth in the opinion of counsel delivered to the
Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 and
such other matters as the Agents may reasonably request. The Administrative
Agent shall promptly notify each Bank as to the occurrence of each Additional
Revolving Loan Commitment Date, and (w) on each such date, the Total Revolving
Loan Commitment under, and for all purposes of, this Agreement shall be
increased by the aggregate amount of such Additional Revolving Loan Commitments,
(x) on each such date Schedule I shall be deemed modified to reflect the revised
Revolving Loan Commitments of the affected Banks, (y) upon surrender of any old
Revolving Notes by the respective Additional Revolving Loan Bank (or, if lost, a
standard lost note indemnity in form and substance reasonably satisfactory to
the Borrower), to the extent requested by any Additional Revolving Loan Bank, a
new Revolving Note will be issued, at the Borrower's expense, to such Additional
Revolving Loan Bank, to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Revolving Loan Commitment of such Bank and (z) on such date with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations by the Banks in such Letters of Credit and
Unpaid Drawings to reflect the new RL Percentages of the Banks.
SECTION 2. Letters of Credit.
-----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Initial Borrowing Date and
prior to the tenth Business Day (or the 30th day in the case of Trade Letters of
Credit) preceding the Revolving Loan Maturity Date to issue, (x) for the account
of the Borrower and for the benefit of any holder (or any trustee, agent or
other similar representative for any such holders) of L/C Supportable
Indebtedness, irrevocable sight standby letters of credit in a form customarily
used by such Letter of Credit Issuer or in such other form as has been approved
by such Letter of Credit Issuer (each such standby letter of credit, a "Standby
Letter of Credit") in support of such L/C Supportable Indebtedness and (y) for
the account of the Borrower and for the benefit of sellers of goods to the
Borrower or any Subsidiary Guarantor in the ordinary course of business,
irrevocable sight trade letters of credit in a form customarily used by such
Letter of Credit Issuer or in such other form as has been approved by such
Letter of Credit Issuer (each such trade letter of credit, a "Trade Letter of
Credit," and each such Standby Letter of Credit and Trade Letter of Credit, a
"Letter of Credit" and, collectively, the "Letters of Credit").
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time on and after the Initial Borrowing Date and prior to the tenth
Business Day (or the 30th day in the case of Trade Letters of Credit) preceding
the Revolving Loan Maturity Date, following its receipt of the respective Letter
of Credit Request, issue for the account of the Borrower one or more Letters of
Credit, (x)
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in the case of Trade Letters of Credit, in support of trade obligations of the
Borrower or any Subsidiary Guarantor that arise in the ordinary course of
business or (y) in the case of Standby Letters of Credit, in support of such L/C
Supportable Indebtedness as is permitted to remain outstanding hereunder.
Notwithstanding the foregoing, no Letter of Credit Issuer shall be under any
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good xxxxx xxxxx
material to it; or
(ii) such Letter of Credit Issuer shall have received written notice
from the Borrower or the Required Banks prior to the issuance of such
Letter of Credit of the type described in clause (vi) of Section 2.01(c) or
the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $25,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans then outstanding and all Swingline Loans then
outstanding, the Total Revolving Loan Commitment at such time; (ii) (x) each
Standby Letter of Credit shall have an expiry date occurring not later than one
year after such Standby Letter of Credit's date of issuance, provided, that any
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such Standby Letter of Credit may be extendable for successive periods of up to
one year, but not beyond the tenth Business Day preceding the Revolving Loan
Maturity Date, on terms acceptable to the Letter of Credit Issuer and (y) each
Trade Letter of Credit shall have an expiry date occurring not later than 180
days after such Trade Letter of Credit's date of issuance; (iii) (x) no Standby
Letter of Credit shall have an expiry date occurring later than the tenth
Business Day preceding the Revolving Loan Maturity Date and (y) no Trade Letter
of Credit shall have an expiry date occurring later than 30 days prior to the
Revolving Loan Maturity Date; (iv) each Letter of Credit shall be denominated in
U.S. Dollars; (v) the Stated Amount of each Letter of Credit shall not be less
than $100,000 or such lesser amount as is acceptable to the respective Letter of
Credit Issuer; and (vi) no Letter of Credit Issuer will issue any Letter of
Credit after it has received written notice from the Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time as
such Letter of Credit Issuer shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering the
same or (y) a waiver of such Default or Event of Default by the Required Banks.
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(d) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' RL Percentage of the Letter of Credit Outstandings, as the case
may be.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires
-------------------------
that a Letter of Credit be issued, the Borrower shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof prior to
12:00 Noon (New York time) at least five Business Days (or such shorter period
as may be acceptable to the respective Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day) which written notice
shall be in the form of Exhibit C (each, a "Letter of Credit Request"). Each
Letter of Credit Request shall include any other documents as such Letter of
Credit Issuer customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and it will not violate the requirements of, Section
2.01(c). Unless the respective Letter of Credit Issuer has received notice from
any Agent or the Required Banks before it issues a Letter of Credit that one or
more of the applicable conditions specified in Section 5 or 6, as the case may
be, are not then satisfied, or that the issuance of such Letter of Credit would
violate Section 2.01(c), then such Letter of Credit Issuer may issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Letter of Credit Issuer's usual and customary practice.
2.03 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Bank, and each such RL Bank (each, a "Participant") shall be deemed irrevocably
and unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Participant's RL Percentage, in such Letter of Credit,
each substitute Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
Letter of Credit Fees shall be payable directly to the Administrative Agent for
the account of the XX Xxxxx as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees with respect to
such Letters of Credit) and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Loan Commitments or the RL
Percentages of the XX Xxxxx pursuant to Section 1.13, 1.14(c) or 13.04(b), it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new RL Percentages
of the assigning and assignee Bank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any
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action taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's RL Percentage of such payment
in U.S. Dollars and in same day funds. If the Administrative Agent so notifies
any Participant required to fund a payment under a Letter of Credit prior to
11:00 A.M. (New York time) on any Business Day, such Participant shall make
available to the Administrative Agent at the Payment Office for the account of
the respective Letter of Credit Issuer such Participant's RL Percentage of the
amount of such payment on such Business Day in same day funds (and, to the
extent such notice is given after 11:00 A.M. (New York time) on any Business
Day, such Participant shall make such payment on the immediately following
Business Day). If and to the extent such Participant shall not have so made its
RL Percentage of the amount of such payment available to the Administrative
Agent for the account of the respective Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of such
Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of the Letter of Credit Issuer at the
overnight Federal Funds Rate. The failure of any Participant to make available
to the Administrative Agent for the account of the respective Letter of Credit
Issuer its RL Percentage of any payment under any Letter of Credit issued by it
shall not relieve any other Participant of its obligation hereunder to make
available to the Administrative Agent for the account of such Letter of Credit
Issuer its applicable RL Percentage of any payment under any such Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's RL Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its RL Percentage thereof, in U.S. Dollars and in
same day funds, an amount equal to such Participant's RL Percentage of the
principal amount thereof and interest thereon accruing after the purchase of the
respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a Standby Letter of Credit issued by it,
give the Administrative Agent, each Participant and the Borrower written notice
of the issuance of, or amendment or modification to, such Standby Letter of
Credit. The Administrative Agent shall, upon request from any Participant,
furnish to such Participant copies of each such Standby Letter of Credit and
each such amendment or modification thereto.
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(f) Each Letter of Credit Issuer (other than BTCo) shall deliver to
the Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Stated Amount available to be drawn
under the outstanding Trade Letters of Credit issued by such Letter of Credit
Issuer for the previous week. The Administrative Agent shall, within 10 days
after the last Business Day of each calendar month, deliver to each Participant
a report setting forth for such preceding calendar month the aggregate daily
Stated Amount available to be drawn under all outstanding Trade Letters of
Credit during such calendar month.
(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Letter of Credit Issuer, any Bank, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower or any of its Subsidiaries and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
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hereby agrees to reimburse each Letter of Credit Issuer, by making payment to
the Administrative Agent in immediately available funds at the Payment Office,
for any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date
of such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
2:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
then Applicable Margin for Revolving Loans maintained as Base Rate Loans plus
the Base Rate, each as in effect from time to time (plus an additional 2% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand; provided, that it
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is understood and agreed, however, that the notices referred to above in this
clause (a) shall not be required to be given if a Default or an Event of Default
under such Section 10.05 shall have occurred and be continuing (in which case
the Unpaid Drawings shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by each
Credit Party) and shall bear interest at a rate per annum which shall be (x)
until the third Business Day following the respective Drawing, the Applicable
Margin for Revolving Loans maintained as Base Rate Loans plus the
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Base Rate, each as in effect from time to time, and (y) at all times on and
after the third Business Day following the respective Drawing, the rate per
annum specified in preceding clause (x) plus 2%). Each Letter of Credit Issuer
shall provide the Borrower prompt notice of any payment or disbursement made by
it under any Letter of Credit issued by it, although the failure of, or delay
in, giving any such notice shall not release or diminish the obligations of the
Borrower under this Section 2.04(a) or under any other Section of this
Agreement.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the respective Letter of Credit Issuer with respect to drawings on Letters of
Credit (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any of its Subsidiaries
may have or have had against such Letter of Credit Issuer, any Agent or any
Bank, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit issued by it to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such drawing; provided, however, that the Borrower shall not be
-------- -------
obligated to reimburse such Letter of Credit Issuer for any wrongful payment
made by such Letter of Credit Issuer under a Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of such Letter of Credit Issuer as determined by a court of
competent jurisdiction.
2.05 Increased Costs. If after the Effective Date, any Letter of
---------------
Credit Issuer or any Participant determines that the adoption or effectiveness
of any applicable law, rule or regulation, order, guideline or request or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (ii) impose on
any Letter of Credit Issuer or any Participant any other conditions directly or
indirectly affecting this Agreement, any Letter of Credit or such Participant's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Participant of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit, then, upon written demand to the Borrower by such Letter of Credit
Issuer or such Participant (a copy of which notice shall be sent by such Letter
of Credit Issuer or such Participant to the Administrative Agent), accompanied
by the certificate described in the last sentence of this Section 2.05, the
Borrower agrees, subject to
-24-
the provisions of Section 13.18 (to the extent applicable), to pay to such
Letter of Credit Issuer or such Participant such additional amount or amounts as
will compensate such Letter of Credit Issuer or such Participant for such
increased cost or reduction. A certificate submitted to the Borrower by such
Letter of Credit Issuer or such Participant, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Participant to
the Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate such
Letter of Credit Issuer or such Participant as aforesaid shall be final and
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05
upon subsequent receipt of such certificate.
SECTION 3. Fees; Commitments.
-----------------
3.01 Fees. (a) The Borrower shall pay to the Administrative Agent
----
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment, a
commitment fee (the "Commitment Fee") for the period from the Effective Date to
but not including the Revolving Loan Maturity Date (or such earlier date as the
Total Revolving Loan Commitment shall have been terminated), computed at a rate
for each day equal to the relevant Applicable Margin then in effect on the daily
average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Commitment Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Revolving Loan Maturity Date (or such earlier
date upon which the Total Revolving Loan Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for pro rata
--- ----
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective RL Percentages), a fee in respect of each Letter of Credit
(the "Letter of Credit Fee") computed at a rate per annum equal to the
Applicable Margin for Revolving Loans maintained as Eurodollar Loans then in
effect on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower shall pay to each Letter of Credit Issuer a fee in
respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of 1/4 of 1% per annum on the daily Stated
Amount of such Letter of Credit; provided, that in no event shall the annual
--------
Facing Fee with respect to each Letter of Credit be less than $500; it being
agreed that (x) on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, if $500
will exceed the amount of Facing Fees that will accrue with respect to such
Letter of Credit for the immediately succeeding 12-month period, the full $500
shall be payable on the date of issuance of such Letter of Credit and on each
such anniversary thereof prior to the termination of such Letter of Credit and
(y) if on the date of the termination of any Letter of Credit, $500 actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of
Credit for the period beginning on the date of the issuance thereof (or if the
respective Letter of Credit has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Letter of Credit) and ending on the date of the termination
thereof, an amount equal to such excess shall be
-25-
paid as additional Facing Fees with respect to such Letter of Credit on the next
date upon which Facing Fees are payable in accordance with the immediately
succeeding sentence. Except as provided in the immediately preceding sentence,
accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day on or after the termination of the
Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(d) The Borrower shall pay directly to each Letter of Credit Issuer
upon each issuance of, payment under, and/or amendment of, a Letter of Credit
issued by such Letter of Credit Issuer such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent for
distribution to each ALC Bank such fees and other amounts, if any, as are
specified in the relevant Additional Loan Commitment Agreement, with the fees
and other amounts, if any, to be payable at the times set forth in such
Additional Loan Commitment Agreement.
(f) The Borrower shall pay to each Agent, for its own account, such
other fees as may be agreed to in writing from time to time between the Borrower
and such Agent, when and as due.
(g) All computations of Fees shall be made in accordance with Section
13.07(b).
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
----------------------------------------------------------------
Loan Commitment. (a) Upon at least three Business Days' prior notice to the
---------------
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, without premium or penalty, to terminate or partially reduce the Total
Unutilized Revolving Loan Commitment, in whole or in part, provided that (i) any
--------
such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each Bank with such a
Commitment and (ii) any partial reduction pursuant to this Section 3.02(a) shall
be in integral multiples of $5,000,000.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the Borrower shall have the right, subject to obtaining the consents
required by Section 13.12(b), upon five Business Days' prior written notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), to terminate the entire
Revolving Loan Commitment of such Bank, so long as all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Bank
(including all amounts, if any, owing pursuant to Section 1.11 but excluding
amounts owing in respect of either Tranche of Term Loans maintained by such
Bank, if such Term Loans are not being repaid pursuant to Section 13.12(b)) are
repaid concurrently with the effectiveness of such termination (at which time
Schedule I shall be deemed modified to reflect such changed amounts) and at such
time, unless the respective Bank continues to have outstanding Term Loans of
either Tranche hereunder, such Bank shall no longer constitute a "Bank" for
purposes of this Agreement, except
-26-
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
----------------------------------
(and the Tranche A Term Loan Commitment and Revolving Loan Commitment of each
Bank with such a Commitment) shall terminate in its entirety on June 30, 1999
unless the Initial Borrowing Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche A Term Loan Commitment (and the Tranche
A Term Loan Commitment of each Bank) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the making of Tranche A Term
Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Bank) shall terminate in its entirety on each
Tranche B Term Loan Commitment Date (after giving effect to the making of
Tranche B Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each RL Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be permanently
reduced from time to time to the extent required by Section 4.02.
(f) Each reduction to the Total Tranche A Term Loan Commitment, Total
Tranche B Term Loan Commitment or Total Revolving Loan Commitment pursuant to
this Section 3.03 (or pursuant to Section 4.02) shall be applied proportionately
to reduce the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay the Loans, and the right to allocate such prepayments to Revolving Loans,
Swingline Loans and/or Term Loans as the Borrower elects, in whole or in part,
without premium or penalty except as otherwise provided in this Agreement, from
time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its Notice
Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Loans, whether such Loans are Tranche A Term
Loans, Tranche B Term Loans, Revolving Loans or Swingline Loans, the amount
of such prepayment, the Types of Loans to be repaid and (in the case of
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which
notice (I) shall be given by the Borrower prior to 12:00 Noon (New York
time) (x) at least one Business Day prior to the date of such prepayment in
the case of Base Rate Loans, (y) on the date of such prepayment in the case
of Swingline Loans and (z) at least three Business Days prior to the date
of such prepayment
-27-
in the case of Eurodollar Loans and (II) shall, except in the case of
Swingline Loans, promptly be transmitted by the Administrative Agent to
each of the Banks;
(ii) each prepayment (other than prepayments in full of (x) all
outstanding Base Rate Loans or (y) any outstanding Borrowing of Eurodollar
Loans) shall be in an aggregate principal amount of at least (x)
$1,000,000, in the case of Eurodollar Loans, (y) $500,000, in the case of
Revolving Loans and Term Loans maintained as Base Rate Loans and (z)
$100,000, in the case of Swingline Loans and, in each case, if greater, in
integral multiples of $100,000, provided, that no partial prepayment of
--------
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11;
(iv) except as provided in clause (viii) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Loans, provided, that at the Borrower's election in connection
--------
with any prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loans of a Defaulting
Bank;
(v) each prepayment of principal of Tranche A Term Loans pursuant to
this Section 4.01 shall be applied to reduce the then remaining Tranche A
Term Loan Scheduled Repayments in direct order of maturity (based upon the
then remaining principal amounts of such Scheduled Repayments after giving
effect to all prior reductions thereto) and each prepayment of Tranche B
Term Loans pursuant to this Section 4.01 shall be applied within each
Tranche B Term Loan Sub-Facility to reduce the respective Tranche B Term
Loan Scheduled Repayments applicable thereto in direct order of maturity
(based upon the then remaining unpaid principal amount of such Scheduled
Repayments after giving effect to all prior reductions thereto);
(vi) except as provided in clause (viii) below, no prepayment of
Tranche B Term Loans may be made pursuant to this Section 4.01 prior to the
repayment in full of all Tranche A Term Loans;
(vii) each prepayment of Tranche B Term Loans pursuant to this
Section 4.01 (except as provided in clause (viii) below) must be
accompanied by a reduction to the Total Revolving Loan Commitment pursuant
to Section 3.02(a), with (x) the amount applied to prepay outstanding
Tranche B Term Loans and reduce the Total Revolving Loan Commitment as
required above to be applied pro rata to the Tranche B Term Loans (based
--- ----
upon the then remaining principal amount thereof) and the Total Revolving
Loan Commitment (as then in effect), (y) the Tranche B Term Loans to be
allocated the B TL Prepayment Percentage of the amount to be so applied and
the Total Revolving Loan Commitment to be allocated the RL Reduction
Percentage of the amount to be so applied and (z) each such prepayment of
Tranche B Term Loans to be applied on a pro rata basis
--- ----
-28-
to the Tranche B Term Loans then outstanding pursuant to the various
Tranche B Term Loan Sub-Facilities; and
(viii) in the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks as
provided in Section 13.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Banks), to repay all Loans of such Bank (including all amounts, if any,
owing pursuant to Section 1.11), together with accrued and unpaid interest,
Fees and all other amounts then owing to such Bank (or owing to such Bank
with respect to each Tranche which gave rise to the need to obtain such
Bank's individual consent) in accordance with said Section 13.12(b), so
long as (A) in the case of the repayment of Revolving Loans of any Bank
pursuant to this clause (viii), the Revolving Loan Commitment of such Bank
is terminated concurrently with such repayment (at which time Schedule I
shall be deemed modified to reflect the changed Revolving Loan Commitments)
and (B) the consents required by Section 13.12(b) in connection with the
repayment pursuant to this clause (viii) shall have been obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) If on any
----------------------------------------------
date the sum of (x) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans (after giving effect to all other repayments thereof
on such date) and (y) the Letter of Credit Outstandings on such date, exceeds
the Total Revolving Loan Commitment as then in effect, the Borrower shall repay
on such date, the principal of Swingline Loans, and if no Swingline Loans are or
remain outstanding, the principal of Revolving Loans in an aggregate amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and all outstanding Revolving Loans, the aggregate
amount of Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment as then in effect, the Borrower shall pay to the Administrative Agent
at the Payment Office on such date an amount in cash and/or Cash Equivalents
equal to such excess (up to the aggregate amount of Letter of Credit
Outstandings at such time) and the Administrative Agent shall hold such payment
as security for the obligations of the Borrower to the Banks hereunder pursuant
to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent.
(b)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(g), a "Tranche A Term Loan Scheduled Repayment"):
Tranche A Scheduled Repayment Date Amount
---------------------------------- ---------------------
June 30, 1999 $312,500
September 30, 1999 $312,500
December 31, 1999 $312,500
-29-
Tranche A Scheduled Repayment Date Amount
---------------------------------- ---------------------
March 31, 2000 $312,500
June 30, 2000 $312,500
September 30, 2000 $312,500
December 31, 2000 $312,500
March 31, 2001 $312,500
June 30, 2001 $312,500
September 30, 2001 $312,500
December 31, 2001 $312,500
March 31, 2002 $312,500
June 30, 2002 $312,500
September 30, 2002 $312,500
December 31, 2002 $312,500
March 31, 2003 $312,500
June 30, 2003 $312,500
September 30, 20003 $312,500
December 31, 2003 $312,500
March 31, 2004 $312,500
Tranche A Term Loan Maturity Date $118,750,000
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, the Borrower shall be required to
repay (x) on each date on which the then remaining Tranche A Term Loan Scheduled
Repayments are required to be made (or would be required to be made if Tranche A
Term Loans were then outstanding) pursuant to Section 4.02(b)(i) prior to the
Tranche A Term Loan Maturity Date, that principal amount of Tranche B Term Loans
made under each Tranche B Term Loan Sub-Facility, to the extent then
outstanding, as is equal to the product of (i) the aggregate principal amount of
Tranche B Term Loans under such Tranche B Term Loan Sub-Facility incurred on the
relevant Tranche B Term Loan Commitment Date and (ii) 1/4 of 1% and (y) on the
Tranche B Term Loan Maturity Date, that portion of the remaining principal
amount of Tranche B Term Loans under each Tranche B Term Loan Sub-Facility
incurred on the relevant Tranche B Term Loan Commitment Date not required to be
repaid pursuant to clause (x) above, to the extent then outstanding (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(g),
a "Tranche B Term Loan Scheduled Repayment").
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date upon which the Borrower or any of its Subsidiaries receives Net Sale
Proceeds from any Asset Sale, an amount equal to the Applicable Prepayment
Percentage of the Net Sale Proceeds from such Asset Sale
-30-
shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(g) and (h); provided that (I)
--------
with respect to any such Net Sale Proceeds received by the Borrower or any of
its Subsidiaries in connection with a sale of Janitorial Equipment, such Net
Sale Proceeds shall not give rise to a mandatory repayment (and/or commitment
reduction, as the case may be) on such date to the extent that no Default or
Event of Default then exists and the Borrower delivers a certificate to the
Administrative Agent at the time of its delivery (or required delivery) of
financial statements pursuant to Section 8.01(b) or (c), as the case may be,
stating that such Net Sale Proceeds shall be used or have been used to purchase
replacement Janitorial Equipment within 270 days following the date of receipt
of such Net Sale Proceeds from such Asset Sale (which certificate shall set
forth the estimates of the proceeds to be so expended or the actual amount of
the proceeds so expended, as the case may be); provided however that (i) if the
-------- -------
Borrower fails to deliver the aforementioned certificate to the Administrative
Agent at the time of its delivery (or required delivery) of financial statements
pursuant to Section 8.01(b) or (c), as the case may be, all of such Net Sale
Proceeds shall be applied at such time as a mandatory repayment and/or
commitment reduction as provided above (without giving effect to the first
proviso hereto) and (ii) if all or any portion of such Net Sale Proceeds are not
so used within such 270-day period specified above, such remaining portion shall
be applied on the last day of such period as a mandatory repayment and/or
commitment reduction as provided above (without giving effect to the first
proviso hereto) and (II) with respect to no more than $5,000,000 in the
aggregate of such Net Sale Proceeds received by the Borrower or its Subsidiaries
in any fiscal year of the Borrower (other than Net Sale Proceeds received in
connection with a sale of Janitorial Equipment), such Net Sale Proceeds shall
not give rise to a mandatory repayment (and/or commitment reduction, as the case
may be) on such date to the extent that no Default or Event of Default then
exists and the Borrower delivers a certificate to the Administrative Agent on or
prior to such date stating that such Net Sale Proceeds shall be used or
contractually committed to be used to purchase assets used or to be used in the
businesses permitted pursuant to Section 9.01 (including, without limitation
(but only to the extent permitted by Section 9.02), the purchase of the capital
stock of a Person engaged in such businesses) within 270 days following the date
of receipt of such Net Sale Proceeds from such Asset Sale (which certificate
shall set forth the estimates of the proceeds to be so expended); provided
--------
however that (i) if all or any portion of such Net Sale Proceeds are not so used
-------
(or contractually committed to be used) within such 270-day period, such
remaining portion shall be applied on the last day of such period as a mandatory
repayment and/or commitment reduction as provided above (without giving effect
to the first proviso hereto) and (ii) if all or any portion of such Net Sale
Proceeds are not so used within such 270-day period referred to in clause (i) of
this clause (y) because such amount is contractually committed to be used and
subsequent to the date of receipt of the respective Net Sale Proceeds such
contract is terminated or expires without such portion being so used, such
remaining portion shall be applied on the date of such termination or expiration
as a mandatory repayment and/or commitment reduction as provided above (without
giving effect to the first proviso hereto).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which the Borrower or any of its Subsidiaries receives any cash proceeds
from any incurrence of Indebtedness (other than Indebtedness permitted to be
incurred pursuant to Section 9.04 as in effect on the Effective Date) or
issuance of Disqualified Preferred Stock (except to the extent the proceeds
therefrom are used to effect Permitted Acquisitions), an amount equal to the
Applicable Prepayment
-31-
Percentage of the Net Cash Proceeds of the respective incurrence of Indebtedness
or issuance of Disqualified Preferred Stock shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(g) and (h).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Effective Date on which the Borrower or any of its Subsidiaries
receives any proceeds from any Recovery Event (other than proceeds from Recovery
Events in an amount less than $1,000,000 per Recovery Event), an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs (including,
without limitation, legal costs and expenses) and taxes incurred in connection
with such Recovery Event and the amount of such proceeds required to be used to
repay any Indebtedness (other than Indebtedness of the Banks pursuant to this
Agreement) which is secured by the respective assets subject to such Recovery
Event) shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(g) and (h); provided that (x)
--------
so long as no Default or Event of Default then exists and such proceeds do not
exceed $2,500,000, such proceeds shall not be required to be so applied on such
date to the extent that an Authorized Officer of the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used or shall be committed to be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 360 days following the date of such Recovery Event (which certificate
shall set forth the estimates of the proceeds to be so expended), and (y) so
long as no Default or Event of Default then exists and to the extent that (a)
the amount of such proceeds exceeds $2,500,000, (b) the amount of such proceeds,
together with other cash available to the Borrower and its Subsidiaries and
permitted to be spent by them on Capital Expenditures during the relevant
period, equals at least 100% of the cost of replacement or restoration of the
properties or assets in respect of which such proceeds were paid as determined
by the Borrower and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative Agent
may reasonably accept, (c) an Authorized Officer of the Borrower has delivered
to the Administrative Agent a certificate on or prior to the date the
application would otherwise be required pursuant to this Section 4.02(e) in the
form described in clause (x) above and also certifying its determination as
required by preceding clause (b) and certifying the sufficiency of business
interruption insurance as required by succeeding clause (d), and (d) an
Authorized Officer of the Borrower has delivered to the Administrative Agent
such evidence as the Administrative Agent may reasonably request in form and
substance reasonably satisfactory to the Administrative Agent establishing that
the Borrower has sufficient business interruption insurance and that the
Borrower will receive payment thereunder in such amounts and at such times as
are necessary to satisfy all obligations and expenses of the Borrower
(including, without limitation, all debt service requirements, including
pursuant to this Agreement), without any delay or extension thereof, for the
period from the date of the respective casualty, condemnation or other event
giving rise to the Recovery Event and continuing through the completion of the
replacement or restoration of the respective properties or assets, then the
entire amount of the proceeds of such Recovery Event and not just the portion in
excess of $2,500,000 shall be deposited with the Administrative Agent pursuant
to a cash collateral arrangement reasonably satisfactory to the Administrative
Agent whereby such proceeds shall be disbursed to the Borrower from time to time
as needed to pay or reimburse the Borrower or such Subsidiary actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements as
may be established
-32-
by the Administrative Agent), provided further, that at any time while an Event
-------- -------
of Default has occurred and is continuing, the Required Banks may direct the
Administrative Agent (in which case the Administrative Agent shall, and is
hereby authorized by the Borrower to, follow said directions) to apply any or
all proceeds then on deposit in such collateral account to the repayment of
Obligations hereunder in the same manner as proceeds would be applied pursuant
to the Security Agreement, and provided further, that if all or any portion of
-------- -------
such proceeds not required to be applied as a mandatory repayment and/or
commitment reduction pursuant to the second preceding proviso (whether pursuant
to clause (x) or (y) thereof) are either (A) not so used or committed to be so
used within 360 days after the date of the respective Recovery Event or (B) if
committed to be used within 360 days after the date of receipt of such net
proceeds and not so used within 18 months after the date of respective Recovery
Event then, in either such case, such remaining portion not used or committed to
be used in the case of preceding clause (A) and not used in the case of
preceding clause (B) shall be applied on the date occurring 360 days after the
date of the respective Recovery Event in the case of clause (A) above or the
date occurring 18 months after the date of the respective Recovery Event in the
case of clause (B) above, as a mandatory repayment and/or commitment reduction
in accordance with the requirements of Sections 4.02(g) and (h).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on the 90th day following the Initial
Borrowing Date, an amount equal to 100% of the remainder of (x) the amount
deposited in the BT Tender Offer Account on the Initial Borrowing Date (i.e.,
----
$573,750,000) less (y) the amount utilized by the Borrower to finance the Common
----
Stock Repurchase on or prior to such date less (z) the amount utilized by the
----
Borrower to purchase Borrower Common Stock on the open-market pursuant to, and
in accordance with the requirements of, Section 9.06(viii), shall be applied as
a mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 4.02(c),
(d) or (e) in accordance with this Section 4.02(g) shall be applied (I) at any
time prior to the initial Tranche B Term Loan Commitment Date, (i) first, to
-----
repay the outstanding principal amount of Tranche A Term Loans and (ii) second,
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clause (i), to reduce the Total Revolving Loan Commitment and (II)
on and after the initial Tranche B Term Loan Commitment Date, (i) first, to
-----
repay the outstanding principal amount of Tranche A Term Loans and (ii) second,
------
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clause (i) of this clause (II), to repay the outstanding principal
amount of Tranche B Term Loans and to reduce the Total Revolving Loan
Commitment, with (x) each such amount required to repay outstanding Tranche B
Term Loans or reduce the Total Revolving Loan Commitment to be applied pro rata
--- ----
to the Tranche B Term Loans (based upon the then remaining principal amount
thereof) and the Total Revolving Loan Commitment (as then in effect), (y) the
Tranche B Term Loans to be allocated the B TL Repayment Percentage of the amount
to be so applied and the Total Revolving Loan Commitment to be allocated the RL
Reduction Percentage of the amount to be so applied and (z) each principal
repayment of Tranche B Terms Loans to be applied on a pro rata basis to the
--- ----
Tranche B Term Loans then outstanding pursuant to the various Tranche B Term
Loan Sub-Facilities. Each amount required to be applied pursuant to Section
4.02(f) in accordance with this Section 4.02(g) shall be applied (i) first, to
-----
repay outstanding Revolving Loans in an
-33-
aggregate principal amount equal to the aggregate principal amount of Revolving
Loans incurred by the Borrower on the Initial Borrowing Date and deposited in
the BT Tender Offer Account on such date, (ii) second, to the extent in excess
------
of the amounts required to be applied pursuant to preceding sub-clause (i), to
repay the outstanding principal amount of Tranche A Term Loans and (iii) third,
-----
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clauses (i) and (ii), to reduce the Total Revolving Loan
Commitment. For purposes of the foregoing provisions of this Section 4.02(g), it
is understood and agreed that (A) the amount of any reduction to the Total
Revolving Loan Commitment as in the preceding sentences shall be deemed to be an
application of proceeds for purposes of this Section 4.02(g) even though cash is
not actually applied and (B) in connection with any reduction to the Total
Revolving Loan Commitment as provided above, any cash received by the Borrower
or such Subsidiary in connection with the event giving rise to such reduction
will be retained by such Person except to the extent that such cash is otherwise
required to be applied as provided in Section 4.02(a) as a result of such
reduction. All repayments of outstanding Term Loans pursuant to Sections
4.02(c), (d), (e) or (f) shall be applied (x) in the case of Tranche A Term
Loans, to reduce the then remaining Tranche A Term Loan Scheduled Repayments on
a pro rata basis (based upon the then remaining Tranche A Term Loan Scheduled
--- ----
Repayments after giving effect to all prior reductions thereto) and (y) in the
case of Tranche B Term Loans, within each Tranche B Term Loan Sub-Facility to
reduce the respective Tranche B Term Loan Scheduled Repayments applicable
thereto on a pro rata basis (based upon the then remaining unpaid principal
--- ----
amount of such Tranche B Term Loan Scheduled Repayments after giving effect to
all prior reductions thereto).
(h) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
--------
may only be made on the last day of an Interest Period applicable thereto unless
(x) all Eurodollar Loans of the respective Tranche with Interest Periods ending
on such date of required repayment and all Base Rate Loans of the respective
Tranche have been paid in full and/or (y) concurrently with such repayment, the
Borrower pays all breakage costs and other amounts owing to each Bank pursuant
to Section 1.11; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Tranche of Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation to minimize breakage costs owing under Section 1.11. Notwithstanding
the foregoing provisions of this Section 4.02, if at any time the mandatory
repayment of Loans pursuant to Section 4.02(c), (d), (e) or (f) would result,
after giving effect to the procedures set forth in this clause (h) above, in the
Borrower incurring breakage costs under Section 1.11 as a result of Eurodollar
Loans being repaid other than on the last day of an Interest Period applicable
thereto (any such Eurodollar Loans, "Affected Loans"), the Borrower may elect,
by written notice to the Administrative Agent, to have the provisions of the
following sentence be applicable. At the time any Affected Loans are otherwise
required to be prepaid the Borrower may elect to deposit
-34-
100% (or such lesser percentage elected by the Borrower as not being repaid) of
the principal amounts that otherwise would have been paid in respect of the
Affected Loans with the Administrative Agent to be held as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Administrative Agent,
with such cash collateral to be released from such cash collateral account (and
applied to repay the principal amount of such Eurodollar Loans) upon each
occurrence thereafter of the last day of an Interest Period applicable to
Eurodollar Loans of the respective Tranche (or such earlier date or dates as
shall be requested by the Borrower), with the amount to be so released and
applied on the last day of each Interest Period to be the amount of such
Eurodollar Loans to which such Interest Period applies (or, if less, the amount
remaining in such cash collateral account).
(i) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the ratable account of the Bank or Banks entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in immediately available funds and in U.S. Dollars at the Payment
Office. Any payments under this Agreement or under any Note which are made
later than 12:00 Noon (New York time) shall be deemed to have been made on the
next succeeding Business Day. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder
------------
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such nonexcluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such nonexcluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. If any amounts are payable
in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes
-35-
imposed on or measured by the net income or net profits of such Bank pursuant to
the laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank party to this Agreement on the Effective Date hereby
represents that, as of the Effective Date, all payments of principal, interest,
and fees to be made to it by the Borrower pursuant to this Agreement will be
totally exempt from withholding of United States federal tax. Each Bank that is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Effective Date, or in the case
of a Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 13.04 (unless the respective Bank was already a Bank
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (with respect to
a complete exemption under an income tax treaty) (or successor forms) certifying
to such Bank's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or W-8BEN (with respect to a complete exemption under an
income tax treaty) pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN with respect to the portfolio interest
exemption (or successor form) certifying to such Bank's entitlement as of such
date to a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Bank agrees that from time to time after the Effective Date, when
a lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Borrower
and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the
benefits of an income tax treaty), Form W-8BEN (with respect to the benefits of
an income tax treaty), Form W-8BEN (with respect to the portfolio interest
exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate in which case such Bank shall
not be required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything
-36-
to the contrary contained in Section 4.04(a), but subject to Section 13.04(b)
and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such Bank
has not provided to the Borrower the Internal Revenue Service Forms required to
be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 13.04(b), the Borrower agrees to pay additional amounts and to
indemnify each Bank in the manner set forth in Section 4.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes (or, if later, the date such Bank became party to
this Agreement).
(c) If the Borrower pays any additional amount under this Section
4.04 to a Bank and such Bank determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Bank shall pay to the
Borrower an amount that the Bank shall, in its sole discretion, determine is
equal to the net benefit, after tax, which was obtained by the Bank in such year
as a consequence of such refund, reduction or credit.
(d) Each Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions and subject to overall policy considerations of such
Bank) (i) to file any certificate or document or to furnish any information as
reasonably requested by the Borrower pursuant to any applicable treaty, law or
regulation or (ii) to designate a different applicable lending office of such
Bank, if the making of such filing or the furnishing of such information or the
designation of such other lending office would avoid the need for or reduce the
amount of any additional amounts payable by the Borrower and would not, in the
sole discretion of such Bank, be disadvantageous to such Bank.
(e) The provisions of this Section 4.04 are subject to the provisions
of Section 13.18 (to the extent applicable).
SECTION 5. Conditions Precedent to Initial Credit Events. The
---------------------------------------------
obligation of each Bank to make each Loan hereunder, and the obligation of the
Letter of Credit Issuer to issue each Letter of Credit hereunder, is subject, at
the time of the making of such Loans or the issuance of such Letters of Credit
to the satisfaction of the following conditions:
-37-
5.01 Execution of Agreement; Notes. On or prior to the Initial
-----------------------------
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Bank
which has requested the same the appropriate Tranche A Term Note and Revolving
Note and to BTCo if so requested, the Swingline Note, in each case executed by
the Borrower and in the amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
---------------------
Administrative Agent shall have received a certificate dated such date signed by
an appropriate officer of the Borrower stating that all of the applicable
conditions set forth in Sections 5.05 through 5.08, inclusive, and 6.01 (other
than such conditions that are subject to the satisfaction of the Agents and/or
the Required Banks), have been satisfied on such date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
-------------------
Administrative Agent shall have received opinions, addressed to each Agent, the
Collateral Agent and each of the Banks and dated the Initial Borrowing Date,
from (i) Xxxxxx, Xxxxx & Xxxxxxx, LLP, special counsel to the Credit Parties,
which opinion shall cover the matters contained in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Agents and the
Required Banks may reasonably request (including, without limitation, an
unqualified opinion as to compliance by the Borrower with the requirements of
the Investment Company Act of 1940, as amended), and be in form and substance
reasonably satisfactory to the Agents and the Required Banks, (ii) X'Xxxxxxxx
Graev & Karabell LLP, special counsel to the Credit Parties, which opinion shall
cover the matters contained in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agents and the Required Banks may
reasonably request, and be in form and substance reasonably satisfactory to the
Agents and the Required Banks, (iii) counsel rendering such opinions, reliance
letters addressed to each Agent and each of the Banks and dated the Initial
Borrowing Date with respect to all legal opinions delivered in connection with
the Transaction, which opinions shall cover such matters as the Agents may
reasonably request and be in form and substance reasonably satisfactory to the
Agents and (iv) local counsel to the Credit Parties and/or the Agents reasonably
satisfactory to the Agents, which opinions (x) shall be addressed to each Agent,
the Collateral Agent and each of the Banks and be dated the Initial Borrowing
Date, (y) shall cover the perfection of the security interests granted pursuant
to the Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request and (z) shall be in
form and substance reasonably satisfactory to the Agents.
5.04 Corporate Documents; Proceedings. (a) On the Initial Borrowing
--------------------------------
Date, the Administrative Agent shall have received from each Credit Party a
certificate, dated the Initial Borrowing Date, signed by the chairman, a vice-
chairman, the president or any vice-president of such Credit Party, and attested
to by the secretary or any assistant secretary of such Credit Party, in the form
of Exhibit F with appropriate insertions, together with copies of the
certificate of incorporation, by-laws or equivalent organizational documents of
such Credit Party and the resolutions of such Credit Party referred to in such
certificate and all of the foregoing (including each such certificate of
incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
-38-
(b) On the Initial Borrowing Date, all Company and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Agents, and the Administrative Agent
shall have received all information and copies of all certificates, documents
and papers, including good standing certificates, bring-down certificates and
any other records of Company proceedings and governmental approvals, if any,
which any Agent reasonably may have requested in connection therewith, such
documents and papers, where appropriate, to be certified by proper Company or
governmental authorities.
(c) On the Initial Borrowing Date and after giving effect to the
Transaction, the capital structure (including, without limitation, the terms of
any capital stock, options, warrants or other securities issued by the Borrower
or any of its Subsidiaries), and management of the Borrower and its Subsidiaries
shall be as described in the Tender Offer Documents.
5.05 Adverse Change, etc. (a) On or prior to the Initial Borrowing
--------------------
Date, since December 31, 1998, nothing shall have occurred which (i) the
Required Banks or any Agent shall reasonably determine has had, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Banks or the Agents, or on the ability of any Credit Party to
perform its obligations to them hereunder or under any other Credit Document or
(ii) has had a material adverse effect on the Transaction or a Material Adverse
Effect.
(b) On the Initial Borrowing Date, there shall not have occurred and
be continuing any material adverse change to the syndication market for credit
facilities similar in nature to this Agreement and there shall not have occurred
and be continuing a material disruption or a material adverse change in
financial, banking or capital markets that would have a material adverse effect
on the syndication, in each case as determined by the Agents in their reasonable
discretion.
5.06 Litigation. On the Initial Borrowing Date, there shall be no
----------
actions, suits, proceedings or investigations pending or threatened (a) with
respect to this Agreement or any other Document or the Transaction, (b) with
respect to any Existing Indebtedness in an aggregate principal amount in excess
of $1,000,000 or (c) which any Agent or the Required Banks shall determine could
reasonably be expected to have (i) a Material Adverse Effect or (ii) a material
adverse effect on the Transaction, the rights or remedies of the Banks or the
Agents hereunder or under any other Credit Document or on the ability of any
Credit Party to perform its respective obligations to the Banks or the Agents
hereunder or under any other Credit Document.
5.07 Approvals. On or prior to the Initial Borrowing Date, (i) all
---------
necessary governmental (domestic and foreign), regulatory and third party
approvals in connection with any Existing Indebtedness, the Transaction, the
transactions contemplated by the Documents and otherwise referred to herein or
therein shall have been obtained and remain in full force and effect and
evidence thereof shall have been provided to the Administrative Agent, and (ii)
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the making of the
Loans and the transactions contemplated by the Documents or otherwise referred
to herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief
-39-
or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying, or making economically
unfeasible, the consummation of the Transaction or the making of the Loans.
5.08 Transaction. (a) On or prior to the Initial Borrowing Date and
-----------
prior to the Credit Events then occurring, the Borrower shall have commenced a
tender offer with respect to the Borrower Common Stock (the "Tender Offer"),
pursuant to which the Borrower shall offer, subject to the terms and conditions
contained in the Tender Offer Documents, to repurchase approximately 25,500,000
shares of outstanding Borrower Common Stock (including shares outstanding after
giving effect to the exercise of stock options with a strike price of less than
$22.50 per share at the time of such repurchase (the "Option Shares")), at a
cash price equal to $22.50 per share from existing shareholders of the Borrower
for an aggregate purchase price not to exceed $573,750,000 less the exercise
----
price of the Option Shares to be purchased pursuant to the Common Stock
Repurchase.
(b) On the Initial Borrowing Date, (i) the Borrower shall have
(before giving effect to the financing transactions pursuant to this Agreement
and described herein) at least $120,000,000 of cash on hand, all of which cash
on hand shall be available to make payments owing in connection with the
Transaction, (ii) the Borrower shall have received gross cash proceeds from the
issuance of the Senior Subordinated Notes in the aggregate amount of
$200,000,000, (iii) the Borrower shall have received gross cash proceeds from
the issuance of Convertible Subordinated Notes in the aggregate amount of
$100,000,000 and (iv) the Borrower shall have utilized all of such cash on hand
and the full amount of the cash proceeds received by it from the issuance of the
Senior Subordinated Notes and the Convertible Subordinated Notes to fund the BT
Tender Offer Account and to make payments owing in connection with the
Transaction prior to utilizing any proceeds of Loans for any such purpose.
(c) On the Initial Borrowing Date, the Administrative Agent shall
have received true and correct copies of all Tender Offer Documents, Senior
Subordinated Notes Documents and Convertible Subordinated Notes Documents,
certified as such by an appropriate officer of the Borrower, and the foregoing
Documents, and all terms and conditions thereof (including, without limitation,
in the case of the Senior Subordinated Notes Documents and the Convertible
Subordinated Notes Documents, amortization, maturities, interest rates,
limitation on cash interest payable, covenants, defaults, remedies, conversion
features and subordination provisions), shall be in form and substance
satisfactory to the Agents and the Required Banks. All conditions precedent to
the consummation of the Transaction as set forth in the Tender Offer Documents,
the Senior Subordinated Notes Documents and the Convertible Subordinated Notes
Documents shall have been satisfied, and not waived unless consented to by the
Agents and the Required Banks, to the reasonable satisfaction of the Agents and
the Required Banks. Each of the Tender Offer and the issuance of the Senior
Subordinated Notes and the Convertible Subordinated Notes shall have been
consummated in accordance with the terms and conditions of the applicable
Documents and all applicable law.
(d) On the Initial Borrowing Date and after giving effect to the
Transaction, the Borrower and its Subsidiaries shall have no Indebtedness or
Preferred Stock outstanding other than (i) the Loans, (ii) the Senior
Subordinated Notes, (iii) the Convertible Subordinated Notes, and (iv) certain
other indebtedness existing on the Initial Borrowing Date as listed on Schedule
-40-
IV in an aggregate outstanding principal amount not to exceed $10,000,000 (with
the Indebtedness described in this sub-clause (iv) being herein called the
"Existing Indebtedness"). On and as of the Initial Borrowing Date, all of the
Existing Indebtedness shall remain outstanding after giving effect to the
Transaction and the other transactions contemplated hereby without any default
or event of default existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions satisfactory to
the Agents and the Required Banks), and there shall not be any amendments or
modifications to the Existing Indebtedness Agreements other than as requested or
approved by the Agents or the Required Banks.
(e) The Administrative Agent shall have received evidence in form,
scope and substance satisfactory to the Agents and the Required Banks that the
matters set forth in this Section 5.08 have been satisfied on the Initial
Borrowing Date.
5.09 Security Documents; etc. (a) On the Initial Borrowing Date,
------------------------
each of the Credit Parties shall have duly authorized, executed and delivered a
Pledge Agreement in the form of Exhibit G (as amended, modified or supplemented
from time to time in accordance with the terms thereof and hereof, the "Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the Pledged Securities referred to therein then owned by such
Credit Parties and required to be pledged pursuant to the terms thereof,
endorsed in blank in the case of promissory notes or accompanied by executed and
undated stock powers in the case of capital stock, along with evidence that all
other actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the
Pledge Agreement have been taken, and the Pledge Agreement shall be in full
force and effect.
(b) On the Initial Borrowing Date, each of the Credit Parties shall
have duly authorized, executed and delivered a Security Agreement in the form of
Exhibit H (as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof, the "Security Agreement") covering all of the
Security Agreement Collateral, together with:
(i) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under the UCC
or appropriate local equivalent of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to perfect
the security interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all effective
financing statements that name the Borrower or any of its Subsidiaries as
debtor and that are filed in the jurisdictions referred to in clause (i)
above, together with copies of such financing statements (none of which
shall cover the Collateral except (x) those with respect to which
appropriate termination statements executed by the secured lender
thereunder have been delivered to the Administrative Agent and (y) to the
extent evidencing Permitted Liens);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of
-41-
the Collateral Agent, desirable, to perfect the security interests
purported to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable, to perfect the security
interests purported to be created by the Security Agreement have been
taken;
and the Security Agreement shall be in full force and effect.
5.10 Subsidiaries Guaranty. On the Initial Borrowing Date, each
---------------------
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiaries Guaranty in the form of Exhibit I (as amended, modified or
supplemented from time to time in accordance with the terms thereof and hereof,
the "Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall be in full
force and effect.
5.11 Employee Benefit Plans; Shareholders' Agreements; Management
------------------------------------------------------------
Agreements; Employment Agreements; Collective Bargaining Agreements; Existing
-----------------------------------------------------------------------------
Indebtedness Agreements; Material Contracts; Tax Allocation Agreements. On or
----------------------------------------------------------------------
prior to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent, at its request, true and correct copies, certified as true
and complete by an appropriate officer of the Borrower of:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
apply in the case of any multiemployer plan, as defined in 4001(a)(3) of
ERISA, only to the extent that any document described therein is in the
possession of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate or reasonably available thereto from the sponsor or trustee of
any such plan) (collectively, the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by the Borrower or any of its Subsidiaries governing the terms
and relative rights of its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its capital stock
(collectively, the "Shareholders' Agreements");
(iii) all material agreements (other than Employment Agreements) with
members of, or with respect to, the management of the Borrower or any of
its Subsidiaries after giving effect to the Transaction (collectively, the
"Management Agreements");
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(iv) any material employment agreements entered into by the Borrower
or any of its Subsidiaries after giving effect to the Transaction
(collectively, the "Employment Agreements");
(v) all collective bargaining agreements applying or relating to any
employee of the Borrower or any of its Subsidiaries after giving effect to
the Transaction (collectively, the "Collective Bargaining Agreements");
(vi) all agreements evidencing or relating to any Existing
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
outstanding principal amount equal to or greater than $1,000,000
(collectively, the "Existing Indebtedness Agreements");
(vii) all other material contracts of the Borrower and any of its
Subsidiaries after giving effect to the Transaction (collectively, the
"Material Contracts"); and
(viii) any tax sharing or tax allocation agreements entered into by
the Borrower or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Material Contracts and Tax Allocation Agreements shall
be in form and substance satisfactory to the Agents and the Required Banks and
shall be in full force and effect on the Initial Borrowing Date.
5.12 Consent Letter. On the Initial Borrowing Date, the
--------------
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in
the form of Exhibit J, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 13.08
or the Subsidiaries Guaranty, as the case may be.
5.13 Solvency Certificate; Insurance Certificates. On or before the
--------------------------------------------
Initial Borrowing Date, the Administrative Agent shall have received:
(a) a solvency certificate in the form of Exhibit K from the chief
financial officer of the Borrower or an opinion from a valuation firm
reasonably acceptable to the Agents and the Required Banks, dated the
Initial Borrowing Date, and supporting the conclusion that, after giving
effect to the Transaction and the incurrence of all financings contemplated
herein, the Borrower (on a stand-alone basis) and the Borrower and its
Subsidiaries (on a consolidated basis), in each case, are not insolvent and
will not be rendered insolvent by the indebtedness incurred in connection
herewith, will not be left with unreasonably small capital with which to
engage in its or their respective businesses and will not have incurred
debts beyond its or their ability to pay such debts as they mature and
become due; and
(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of the Borrower and its Subsidiaries,
in scope, form and substance reasonably satisfactory to the Agents and the
Required Banks and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such
-43-
insurance shall not be canceled or revised without at least 30 days' prior
written notice by the insurer to the Collateral Agent.
5.14 Financial Statements; Pro Forma Financial Statements;
-----------------------------------------------------
Projections. (a) On or prior to the Initial Borrowing Date, there shall have
-----------
been delivered to the Administrative Agent (i) true and correct copies of the
financial statements referred to in Section 7.10(b) and (ii) an unaudited pro
---
forma consolidated balance sheet of the Borrower and its Subsidiaries as of
-----
December 31, 1998 and the related pro forma statement of income and cash flows
--- -----
for the fiscal year ended as of such date and, after giving effect to the
Transaction and the incurrence of all Indebtedness (including the Loans, the
Senior Subordinated Notes and the Convertible Subordinated Notes) contemplated
herein and prepared in accordance with GAAP (the "Pro Forma Financial
--- -----
Statements"), together with a related funds flow statement, which financial
statements, Pro Forma Financial Statements and funds flow statement shall be
--- -----
reasonably satisfactory to the Agents and the Required Banks.
(b) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent detailed projected consolidated financial
statements of the Borrower and its Subsidiaries certified by the chief financial
officer or chief operating officer of the Borrower for the ten fiscal years
ended after the Initial Borrowing Date (the "Projections"), which Projections
(x) shall reflect the forecasted consolidated financial conditions and income
and expenses of the Borrower and its Subsidiaries after giving effect to the
Transaction and the related financing thereof and the other transactions
contemplated hereby and (y) shall be reasonably satisfactory in form and
substance to the Agents and the Required Banks.
5.15 Payment of Fees. On the Initial Borrowing Date, all costs, fees
---------------
and expenses, and all other compensation due to the Agents or the Banks
(including, without limitation, legal fees and expenses) shall have been paid to
the extent due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
-----------------------------------------
of each Bank to make Loans (including Loans made on the Initial Borrowing Date
and on each Additional Loan Commitment Date, but excluding Mandatory Borrowings
made after the Initial Borrowing Date, which shall be made as provided in
Section 1.01(d)), and the obligation of a Letter of Credit Issuer to issue any
Letter of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
------------------------------------------
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to
---------------------------------------------
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to
-44-
the making of any Swingline Loan, BTCo shall have received the notice required
by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of Section 2.02(a).
6.03 Compliance With Indentures. (a) At the time of each such Credit
--------------------------
Event (so long as any Convertible Subordinated Note remains outstanding), (i)
each Credit Event shall comply with the requirements of Section 1007 of the
Convertible Subordinated Notes Indenture and all other applicable covenants
contained therein, (ii) the Borrower shall have delivered to the Administrative
Agent an officer's certificate signed by an appropriate officer of the Borrower
(which certificate may be incorporated into the applicable Notice of Borrowing),
in form and substance satisfactory to the Agents, (x) establishing that such
Credit Event does not violate the terms of the Convertible Subordinated Notes
Indenture and specifically stating that the respective Credit Event does not,
and will not violate Section 1007 of the Convertible Subordinated Notes
Indenture, (y) containing a representation and warranty that the Indebtedness
incurred pursuant to such Credit Event constitutes "Senior Indebtedness",
"Designated Senior Indebtedness" and "Senior Credit Facility Indebtedness" under
the Convertible Subordinated Notes Indenture and (z) specifying (I) the amount
of Indebtedness then outstanding under each Tranche (prior to giving effect to
the respective Credit Event) and incurred in reliance upon each of clauses (x)
and (y) of the exception contained in Section 1007 of the Convertible
Subordinated Notes Indenture and (II) the amount of Indebtedness under each
Tranche to be incurred pursuant to the respective Credit Event in reliance upon
each of clauses (x) and (y) of the exception contained in Section 1007 of the
Convertible Subordinated Notes Indenture, which officer's certificate shall (I)
in the case of any Credit Event to be justified in whole or in part in reliance
on clause (x) of said Section 1007, be accompanied by financial calculations (in
form and substance reasonably satisfactory to the Agents) establishing
compliance with a Consolidated Leverage Ratio (as defined in the Convertible
Subordinated Notes Indenture) of less than 4.0:1.0 (after giving effect to the
respective Credit Event) as required by Section 1007 of the Convertible
Subordinated Notes Indenture and (II) in the case of any Credit Event to be
justified in whole or in part in reliance on clause (y) of said Section 1007,
contain a representation and warranty that the relevant portion of such
Indebtedness is permitted to be incurred in reliance on said clause (y) and
(iii) if requested by any Agent or the Required Banks (which request may only be
made by such Agent or the Required Banks if such Agent or the Required Banks, as
the case may be, has or have reasonable doubts as to the compliance by the
Borrower with the applicable requirements of the Convertible Subordinated Notes
Indenture after giving effect to the respective such Credit Event), the Banks
shall have received an opinion of counsel (which opinion shall be reasonably
satisfactory to the respective Agent or Required Banks requesting same) as may
be reasonably requested to assure the Banks that the requirements of this
Section 6.03(a) and Section 1007 of the Convertible Subordinated Notes Indenture
are satisfied and that the Indebtedness incurred pursuant to such Credit Event
constitutes "Senior Indebtedness", "Designated Senior Indebtedness" and
"Senior Credit Facility Indebtedness" thereunder.
(b) At the time of each such Credit Event (so long as any Senior
Subordinated Note remains outstanding), (i) each Credit Event shall comply with
the requirements of Section 4.04 of the Senior Subordinated Notes Indenture and
all other applicable covenants contained
-45-
therein, (ii) the Borrower shall have delivered to the Administrative Agent an
officer's certificate signed by an appropriate officer of the Borrower (which
certificate may be incorporated into the applicable Notice of Borrowing), in
form and substance satisfactory to the Agents, (x) establishing that such Credit
Event does not violate the terms of the Senior Subordinated Notes Indenture and
specifically stating that the respective Credit Event does not, and will not
violate Section 4.04 of the Senior Subordinated Notes Indenture, (y) containing
a representation and warranty that the Indebtedness incurred pursuant to such
Credit Event constitutes "Senior Debt" and "Designated Senior Debt" under the
Senior Subordinated Notes Indenture and (z) specifying (I) the amount of
Indebtedness then outstanding under each Tranche (prior to giving effect to the
respective Credit Event) and incurred in reliance on clause (ii) (or any other
relevant clause) of the definition of "Permitted Indebtedness" in the Senior
Subordinated Notes Indenture and in reliance on the proviso to Section 4.04 of
the Senior Subordinated Notes Indenture and (II) the amount of Indebtedness
under each Tranche to be incurred pursuant to the respective Credit Event in
reliance upon clause (ii) (or any other relevant clause) of the definition of
"Permitted Indebtedness" in the Senior Subordinated Notes Indenture and the
proviso to Section 4.04 thereof, which officer's certificate shall (I) in the
case of any Credit Event to be justified in whole or in part in reliance on the
proviso to said Section 4.04, be accompanied by financial calculations (in form
and substance reasonably satisfactory to the Agents) establishing compliance
with a Consolidated Fixed Charge Coverage Ratio (as defined in the Senior
Subordinated Notes Indenture) of greater than 2.25:1.0 (if the respective
incurrence occurs on or prior to November 1, 2000) and 2.50:1.0 (if the
respective incurrence occurs after November 1, 2000) (in each case, after giving
effect to the respective Credit Event) as required by Section 4.04 of the Senior
Subordinated Notes Indenture and (II) in the case of any Credit Event to be
justified in whole or in part in reliance on clause (ii) (or any other relevant
clause) of the definition of "Permitted Indebtedness" contained in the Senior
Subordinated Notes Indenture, contain a representation and warranty that the
relevant portion of such Indebtedness is permitted to be incurred in reliance on
said clause (ii) (and/or such other relevant clause) and (iii) if requested by
any Agent or the Required Banks (which request may only be made by such Agent or
the Required Banks if such Agent or the Required Banks, as the case may be, has
or have reasonable doubts as to the compliance by the Borrower with the
applicable requirements of the Senior Subordinated Notes Indenture after giving
effect to the respective such Credit Event), the Banks shall have received an
opinion of counsel (which opinion shall be reasonably satisfactory to the
respective Agent or Required Banks requesting same) as may be reasonably
requested to assure the Banks that the requirements of this Section 6.03(b) and
Section 4.04 of the Senior Subordinated Notes Indenture are satisfied and that
the Indebtedness incurred pursuant to such Credit Event constitutes "Senior
Debt" and "Designated Senior Debt" thereunder.
The occurrence of the Initial Borrowing Date and the acceptance of the
benefits or proceeds of each Credit Event shall constitute a representation and
warranty by the Borrower to each Agent and each of the Banks that all the
conditions specified in Section 5 and in this Section 6 and applicable to such
Credit Event (other than such conditions that are subject to the satisfaction of
the Agents and/or the Required Banks) exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts or copies for each
of the Banks and shall be in form and substance satisfactory to the Banks.
-46-
SECTION 7. Representations and Warranties. In order to induce the
------------------------------
Banks to enter into this Agreement and to make the Loans and issue and/or
participate in the Letters of Credit provided for herein, the Borrower makes the
following representations and warranties with the Banks, all of which shall
survive the execution and delivery of this Agreement, the making of the Loans
and the issuance of the Letters of Credit (with the occurrence of the Initial
Borrowing Date and each Credit Event on or after the Initial Borrowing Date
being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct in all material respects on and
as of the Initial Borrowing Date and the date of each such Credit Event, unless
stated to relate to a specific earlier date in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date):
7.01 Company Status. Each of the Borrower and each of its
--------------
Subsidiaries (i) is a duly organized and validly existing Company in good
standing under the laws of the jurisdiction of its organization (other than, if
this representation is being made at any time prior to the 30th day following
the Initial Borrowing Date, Brick, Inc., a Tennessee corporation, Flor-Shin,
Inc, a South Carolina corporation, and Brazosport Management, Inc., a Texas
corporation), (ii) has the Company power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect.
7.02 Company Power and Authority. Each Credit Party has the Company
---------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Documents to which it is a party, nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any material
provision of any applicable law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement or instrument to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its property or
assets are bound or to which it may be subject (including, without limitation,
the Existing Indebtedness Agreements, the Senior Subordinated Notes Documents
and the Convertible Subordinated Notes Documents) or (iii) will violate any
provision of the certificate of incorporation, by-laws, certificate of
partnership, partnership agreement, certificate
-47-
of limited liability company, limited liability company agreement or equivalent
organizational document, as the case may be, of the Borrower or any of its
Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
----------
investigations pending or threatened (i) with respect to any Credit Document,
(ii) with respect to the Transaction or any other Document that could reasonably
be expected to have a Material Adverse Effect, or (iii) with respect to the
Borrower or any of its Subsidiaries (x) that are likely to have a Material
Adverse Effect or (y) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Agents or the Banks or on the
ability of any Credit Party to perform its respective obligations to the Agents
or the Banks hereunder and under the other Credit Documents to which it is, or
will be, a party. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
-----------------------------------
Tranche A Term Loans shall be utilized by the Borrower (i) on the Initial
Borrowing Date (x) to fund the BT Tender Offer Account (so long as same are
thereafter paid over to the Tender Offer Paying Agent and applied to finance the
Common Stock Repurchase and/or, upon the termination of the Tender Offer
Adjustment Period, released to the Borrower and thereafter applied as provided
in clause (ii) below and/or Section 4.02(f)) and (y) to pay fees and expenses
(not to exceed $30.0 million) incurred in connection with the Transaction and
(ii) at any time prior to the 90th day following the Initial Borrowing Date, to
purchase Borrower Common Stock on the open-market pursuant to, and in accordance
with the requirements of, Section 9.06(viii).
(b) The proceeds of all Revolving Loans and Swingline Loans shall be
utilized for the general corporate and working capital purposes of the Borrower
and its Subsidiaries (including Permitted Acquisitions and the prepayment of
Existing Indebtedness and purchases of Senior Subordinated Notes in accordance
with the terms of Section 9.12(ii) and purchases of Borrower Common Stock in
accordance with 9.06(viii) but excluding payments in connection with the
Transaction except as provided in the proviso below), provided, however, that
-------- -------
proceeds of Revolving Loans in an aggregate amount not to exceed $68,000,000 may
be utilized by the Borrower for the purposes described in Section 7.05(a)(i)
above.
(c) The proceeds of all Tranche B Term Loans shall be utilized by the
Borrower on the date of incurrence thereof to finance Permitted Acquisitions or
repay outstanding Revolving Loans in accordance with the provisions of Section
4.01.
(d) Neither the making of any Loan, nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
(e) The fair market value of all Margin Stock owned by the Borrower
and its Subsidiaries does not exceed $1,000,000. At the time of each Credit
Event occurring on or after the Initial Borrowing Date, not more than 25% of the
value of the assets of the Borrower and its Subsidiaries taken as a whole will
constitute Margin Stock.
-48-
7.06 Governmental Approvals. Except as may have been obtained or
----------------------
made on or prior to the Initial Borrowing Date (and which remain in full force
and effect on the Initial Borrowing Date), no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Document or
(ii) the legality, validity, binding effect or enforceability of any Document.
7.07 Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to any Agent or any Bank
(including, without limitation, all information contained in the Documents) for
purposes of or in connection with this Agreement or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of any such Persons in writing to any Agent
or any Bank will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by omitting
to state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided. The Projections and pro forma financial information
--- -----
contained in such materials are based on good faith estimates and assumptions
believed by the Borrower to be reasonable at the time made, it being recognized
by the Banks that such projections of future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projection may differ from the projected results contained therein.
7.10 Financial Condition; Financial Statements. (a) On and as of
-----------------------------------------
the Initial Borrowing Date, on a pro forma basis after giving effect to the
--- -----
Transaction and to all Indebtedness (including the Loans, the Senior
Subordinated Notes and the Convertible Subordinated Notes) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to the Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (on a consolidated basis) (x) the sum of the
assets, at a fair valuation, of the Borrower (on a stand-alone basis) and the
Borrower and its Subsidiaries (on a consolidated basis) will exceed its or their
debts, (y) it has or they have not incurred nor intended to, nor believes or
believe that it or they will, incur debts beyond its or their ability to pay
such debts as such debts mature and (z) it or they will have sufficient capital
with which to conduct its or their business. For purposes of this Section 7.10,
"debt" means any liability on a claim, and "claim" means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if
-49-
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(b) (i) The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries at December 31, 1998 and the related statements of
income and cash flows and changes in shareholders' equity of the Borrower for
the fiscal year ended as of said date, and (ii) the Pro Forma Financial
--- -----
Statements, in each case furnished to each Bank prior to the Initial Borrowing
Date pursuant to Section 5.14(a), present fairly in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries at the
date of said financial statements and the results for the period covered thereby
(or, in the case of the Pro Forma Financial Statements, presents a good faith
--- -----
estimate of the consolidated pro forma financial condition of the Borrower
--- -----
(after giving effect to the Transaction at the date thereof)). All such
financial statements (other than the aforesaid Pro Forma Financial Statements)
--- -----
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.
(c) Since December 31, 1998 (but after giving effect to the
Transaction as if same had occurred prior thereto), nothing has occurred that
has had or could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 7.10(b) and the Indebtedness incurred under this Agreement and the
Senior Subordinated Notes, (i) there were as of the Initial Borrowing Date (and
after giving effect to any Loans made on such date), no liabilities or
obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, could
reasonably be expected to be material to the Borrower and its Subsidiaries taken
as a whole or the Borrower and (ii) the Borrower does not know of any basis for
the assertion against the Borrower or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, are or
would be reasonably likely to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with the
financial statements referred to in Section 7.10(b), and are based on good faith
estimates and assumptions made by the management of the Borrower, which
assumptions such management believed were reasonable on the Initial Borrowing
Date. On the Initial Borrowing Date, such management believed that the
Projections were reasonable and attainable. There is no fact known to the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, which has not been disclosed herein or in such other
documents, certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
7.11 Security Interests. On and after the Initial Borrowing Date,
------------------
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations, a valid and enforceable
perfected security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons, and subject
to no other Liens (except that (i) the Security Agreement Collateral may be
subject to Permitted Liens relating thereto and (ii) the Pledge Agreement
Collateral may be subject to the Liens described in
-50-
clauses (a) and (e) of Section 9.03), in favor of the Collateral Agent. No
filings or recordings are required in order to perfect the security interests
created under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or
prior to the Initial Borrowing Date as contemplated by Section 5.09 or on or
prior to the execution and delivery thereof as contemplated by Sections 8.11,
8.12 and 9.15.
7.12 Compliance with ERISA. Schedule V sets forth each Plan; each
---------------------
Plan (and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received or has
applied for or will apply for within the applicable remedial amendment period, a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
except as could not result in a material liability, all contributions required
to be made with respect to a Plan have been timely made; neither the Borrower
nor any Subsidiary of the Borrower nor any ERISA Affiliate has incurred any
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; no condition exists which presents
a material risk to the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; using actuarial assumptions and computation methods consistent with
Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event, would
not exceed $50,000; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; and the Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability.
7.13 Capitalization. On the Initial Borrowing Date and after giving
--------------
effect to the Transaction (other than the Common Stock Repurchase), the
authorized capital stock of the
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Borrower shall consist of (i) 250,000,000 shares of common stock, $.001 par
value per share (such authorized shares of common stock, together with any
subsequently authorized shares of common stock of the Borrower, the "Borrower
Common Stock"), 46,311,961 of which shares shall be issued and outstanding and
(ii) 500,000 shares of convertible non-voting common stock, $.001 par value per
share, none of which shares shall be issued and outstanding. Except as set forth
on Schedule X hereto, all such outstanding shares have been duly and validly
issued, are fully paid and nonassessable and have been issued free of preemptive
rights.
7.14 Subsidiaries. On and as of the Initial Borrowing Date and after
------------
giving effect to the Transaction, the Borrower has no Subsidiaries other than
those Subsidiaries listed on Schedule VII. Schedule VII correctly sets forth,
as of the Initial Borrowing Date and after giving effect to the Transaction, the
percentage ownership (direct and indirect) of the Borrower in each class of
capital stock or other equity interests of each of its Subsidiaries and also
identifies the direct owner thereof. All outstanding shares of capital stock of
each Subsidiary of the Borrower have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. No
Subsidiary of the Borrower has outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any right to subscribe for or
to purchase, or any options or warrants for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
7.15 Intellectual Property, etc. Each of the Borrower and each of
---------------------------
its Subsidiaries owns all patents, trademarks, permits, service marks, trade
names, technology copyrights, licenses, franchises and formulas, or other rights
with respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, and has in full force and effect all
accreditations and certifications, reasonably necessary for the conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a Material Adverse
Effect.
7.16 Compliance with Statutes, etc. Each of the Borrower and each of
------------------------------
its Subsidiaries is in compliance with all applicable statutes, regulations,
rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliance as is not
likely to, individually or in the aggregate, have a Material Adverse Effect.
7.17 Environmental Matters. (a) Each of the Borrower and each of
---------------------
its Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws and neither the Borrower nor any of
its Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. There are no pending or past or, to
the best knowledge of the Borrower, threatened Environmental Claims against the
Borrower or any of its Subsidiaries or any Real Property owned or operated by
the Borrower or any of its Subsidiaries. There are no facts, circumstances,
conditions or occurrences on any Real Property owned or operated by the Borrower
or any of its Subsidiaries or on any property adjoining or in the vicinity of
any such Real Property that would reasonably be expected (i) to form the basis
of an Environmental Claim against the Borrower or any of its Subsidiaries or any
such Real Property or (ii) to cause any such Real Property to be subject to any
restrictions on
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the ownership, occupancy, use or transferability of such Real Property by the
Borrower or any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries except in compliance with
all applicable Environmental Laws and reasonably required in connection with the
operation, use and maintenance of such Real Property by the Borrower's or such
Subsidiary's business. Hazardous Materials have not at any time been Released
on or from any Real Property owned or operated by the Borrower or any of its
Subsidiaries or by any person acting for or under contract to the Borrower or
any of its Subsidiaries, or to the knowledge of the Borrower, by any other
Person, except in compliance with all applicable Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations made in this Section 7.17 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Hazardous Materials Releases and presence of underground storage tanks,
in each case of the types described above, would reasonably be expected to have
a Material Adverse Effect.
7.18 Properties. All Real Property owned by the Borrower or any of
----------
its Subsidiaries and all material Leaseholds leased by the Borrower or any of
its Subsidiaries, in each case as of the Initial Borrowing Date and after giving
effect to the Transaction, and the nature of the interest therein, is correctly
set forth in Schedule III. Each of the Borrower and each of its Subsidiaries
has good and marketable title to, or a validly subsisting leasehold interest in,
all material properties owned or leased by it, including all Real Property
reflected in Schedule III and in the financial statements (including the Pro
---
Forma Balance Sheet) referred to in Section 7.10(b) (except such properties sold
-----
in the ordinary course of business since the dates of the respective financial
statements referred to therein), free and clear of all Liens, other than
Permitted Liens.
7.19 Labor Relations. Neither the Borrower nor any of its
---------------
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries or
threatened against the Borrower or any of its Subsidiaries and (iii) no union
representation question existing with respect to the employees of the Borrower
or any of its Subsidiaries and no union organizing activities are taking place,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.
7.20 Tax Returns and Payments. Each of the Borrower and each of its
------------------------
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and
-53-
fully provided for on the financial statements of the Borrower and its
Subsidiaries in accordance with generally accepted accounting principles. Each
of the Borrower and each of its Subsidiaries has at all times paid, or have
provided adequate reserves (in the good faith judgment of the management of the
Borrower) for the payment of, all federal, state and foreign income taxes
applicable for all prior fiscal years and for the current fiscal year to date.
There is no material action, suit, proceeding, investigation, audit, or claim
now pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries. Neither the Borrower nor any of its 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 payment or
collection of taxes of the Borrower or any of its Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods of
the Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
7.21 Existing Indebtedness. Schedule IV sets forth a true and
---------------------
complete list of all Existing Indebtedness of the Borrower and its Subsidiaries
as of the Initial Borrowing Date after giving effect to the Transaction, in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
---------
and complete summary of all insurance carried by each Credit Party on and as of
the Initial Borrowing Date, with the amounts insured set forth therein.
7.23 Representations and Warranties in Other Documents. All
-------------------------------------------------
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations or
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations or warranties shall be
true and correct in all material respects as of such specified date.
7.24 Transaction. At the time of consummation thereof, each element
-----------
of the Transaction shall have been consummated in accordance with the terms of
the relevant Documents therefor and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each element of the Transaction in accordance with the terms of the
relevant Documents therefor and all applicable laws have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable waiting
periods with respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon any element of the Transaction, the occurrence of any Credit
Event, or the performance by the Borrower and its Subsidiaries of their
respective obligations under the Documents and all applicable laws.
-54-
7.25 Year 2000 Compliance. All Information Systems and Equipment are
--------------------
either Year 2000 Compliant, or any reprogramming, remediation, or any other
corrective action, including the internal testing of all such Information
Systems and Equipment, will be completed in all material respects by September
30, 1999. Further, to the extent that such reprogramming/remediation and
testing action is required, the cost thereof, as well as the cost of the
reasonably foreseeable consequences of failure to become Year 2000 Compliant, to
the Borrower and its Subsidiaries (including, without limitation, reprogramming
errors and the failure of other systems or equipment) will not (x) result in a
Default or an Event of Default or (y) have a Material Adverse Effect.
7.26 Subordination. The subordination provisions contained in the
-------------
Senior Subordinated Notes Documents and the Convertible Subordinated Notes
Documents and, on and after the execution and delivery thereof, each of the
agreements or instruments relating to Permitted Subordinated Refinancing
Indebtedness, the Shareholder Subordinated Notes and Permitted Subordinated
Indebtedness are enforceable against the Borrower, the Subsidiary Guarantors and
the holders of such Indebtedness, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law), and all Obligations hereunder and the obligations of the Credit Parties
under the other Credit Documents (including, without limitation, the
Subsidiaries Guaranty) are within the definitions of "Senior Debt" (or in the
case of the obligations of a Subsidiary Guarantor, "Guarantor Senior Debt"),
"Senior Indebtedness" (or in the case of the obligations of a Subsidiary
Guarantor, "Guarantor Senior Indebtedness"), "Designated Senior Debt" and
"Designated Senior Indebtedness", as applicable, included in such subordination
provisions.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
---------------------
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Total Commitment has terminated, no Letters
of Credit or Notes are outstanding and the Loans and Unpaid Drawings, together
with interest, Fees and all other Obligations (other than any indemnities
described in Section 13.13 which are not then due and payable) incurred
hereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Bank:
---------------------
(a) Monthly Reports. Within 30 days after the end of each fiscal
---------------
month of the Borrower (other than the last fiscal month of a quarterly
accounting period of the Borrower), the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal month and the
related consolidated statements of income and retained earnings for such
fiscal month and for the elapsed portion of the fiscal year ended with the
last day of such fiscal month, in each case setting forth comparative
figures for the corresponding fiscal month in the prior fiscal year and
comparable budgeted figures for such fiscal month as set forth in the
respective budget delivered pursuant to Section 8.01(d), all of which shall
be certified by the chief financial officer or other Authorized Officer of
the Borrower, subject to normal year-end audit adjustments and the absence
of footnotes.
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(b) Quarterly Financial Statements. Within 45 days after the close
------------------------------
of the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings and of cash
flows for such quarterly accounting period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly accounting period
and the budgeted figures for such quarterly period as set forth in the
respective budget delivered pursuant to Section 8.01(d) and (ii)
management's discussion and analysis of the most important operational and
financial developments during such quarterly period, all of which shall be
in reasonable detail and certified by the chief financial officer or other
Authorized Officer of the Borrower that they fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of
the dates indicated and the results of their operations and changes in
their cash flows for the periods indicated, subject to normal year-end
audit adjustments and the absence of footnotes.
(c) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and of cash
flows for such fiscal year and setting forth comparative consolidated
figures for the preceding fiscal year and comparable budgeted figures for
such fiscal year as set forth in the respective budget delivered pursuant
to Section 8.01(d) and (except for such comparable budgeted figures)
certified by PriceWaterhouseCoopers LLP or such other independent certified
public accountants of recognized national standing as shall be reasonably
acceptable to the Administrative Agent, in each case to the effect that
such statements fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the dates indicated
and the results of their operations and changes in financial position for
the periods indicated in conformity with GAAP applied on a basis consistent
with prior years, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, no Default or Event of Default which
has occurred and is continuing has come to their attention or, if such a
Default or an Event of Default has come to their attention, a statement as
to the nature thereof.
(d) Budgets, etc. Not more than 60 days after the commencement of
-------------
each fiscal year of the Borrower, consolidated budgets of the Borrower and
its Subsidiaries (x) in reasonable detail for each of the four fiscal
quarters of such fiscal year and (y) in summary form for each of the five
fiscal years immediately following such fiscal year, in each case as
customarily prepared by management for its internal use setting forth, with
appropriate discussion, the principal assumptions upon which such budgets
are based. Together with each delivery of financial statements pursuant to
Sections 8.01(a), (b) and (c), a comparison of the current year to date
financial results against the budgets (other than in respect of balance
sheets included therein unless available) required to be submitted pursuant
to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of the chief financial officer or
-56-
other Authorized Officer of the Borrower to the effect that no Default or
Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall (I) if
delivered in connection with the financial statements in respect of a
period ending on the last day of a fiscal quarter or fiscal year of the
Borrower, set forth (x) the calculations required to establish whether the
Borrower and its Subsidiaries were in compliance with the provisions of
Xxxxxxxx 0.00, 0.00, 0.00, 0.00(x), (x), (x), (x), (x) and (m), 9.05(a),
(g), (l) and (q) and 9.08 through and including 9.10 as at the end of such
fiscal quarter or year, as the case may be, and (y) the calculation of the
Total Leverage Ratio, the Adjusted Total Leverage Ratio and the Adjusted
Senior Leverage Ratio as at the last day of the respective fiscal quarter
or fiscal year of the Borrower, as the case may be and (II) if delivered
with the financial statements required by Section 8.01(c), set forth in
reasonable detail the amount of (and the calculations required to establish
the amount of) Excess Cash Flow for the respective Excess Cash Flow Payment
Period.
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within five (or, in the case of any event referred to in clause (i) below,
three) Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence
of any event which constitutes a Default or an Event of Default, which
notice shall specify the nature and period of existence thereof and what
action the Borrower proposes to take with respect thereto, (ii) any
litigation or proceeding pending or threatened (x) against the Borrower or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any material Indebtedness of
the Borrower or any of its Subsidiaries or (z) with respect to any Document
(other than such Documents referred to in clause (v) of the definition
thereof), (iii) any governmental investigation pending or threatened
against the Borrower or any of its Subsidiaries and (iv) any other event
which could reasonably be expected to have a Material Adverse Effect.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to the Borrower or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of the Borrower or any
of its Subsidiaries and the management's non-privileged responses thereto.
(h) Environmental Matters. Promptly after an officer of the Borrower
---------------------
or any of its Subsidiaries obtains actual knowledge of any of the following
(but only to the extent that any of the following, either individually or
in the aggregate, could reasonably be expected to (x) have a Material
Adverse Effect or (y) result in a remedial cost to the Borrower or any of
its Subsidiaries in excess of $500,000), written notice of:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that (x) results
in
-57-
noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any
of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be anticipated to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability
by the Borrower or such Subsidiary, as the case may be, of its
interest in such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's response or proposed response thereto. In addition, the
Borrower agrees to provide the Banks with copies of all material
communications by the Borrower or any of its Subsidiaries with any Person,
government or governmental agency relating to Environmental Laws or to any
of the matters set forth in clauses (i)-(iv) above, and such detailed
reports relating to any of the matters set forth in clauses (i)-(iv) above
as may reasonably be requested by the Administrative Agent or the Required
Banks.
(i) Annual Meetings with Banks. At the request of the Administrative
--------------------------
Agent, the Borrower shall within 150 days after the close of each of its
fiscal years, hold a meeting (at a mutually agreeable location and time)
open to all of the Banks at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of the
Borrower and its Subsidiaries and the budgets presented for the current
fiscal year of the Borrower and its Subsidiaries.
(j) Notice of Commitment Reductions and Mandatory Repayments. On or
--------------------------------------------------------
prior to the date of any reduction to the Total Revolving Loan Commitment
or any mandatory repayment of outstanding Term Loans pursuant to any of
Sections 4.02(c) through (e), inclusive, the Borrower shall provide written
notice of the amount of the respective reduction or repayment, as the case
may be, to the Total Revolving Loan Commitment or the outstanding Term
Loans, as applicable, and the calculation thereof (in reasonable detail).
(k) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by the Borrower
or any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as the Borrower or any of its Subsidiaries
shall send generally to analysts and the holders of their capital stock or
of the Senior Subordinated Notes, the Convertible Subordinated Notes or any
Permitted Debt in their capacity as such holders (to the extent not
theretofore delivered to the Banks pursuant to this Agreement) and, with
reasonable
-58-
promptness, such other information or documents (financial or otherwise) as
any Agent on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
8.02 Books, Records and Inspections. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit, upon reasonable prior notice to the chief financial
officer or other Authorized Officer of the Borrower, officers and designated
representatives of any Agent or the Required Banks to visit and inspect under
the guidance of officers of the Borrower any of the properties or assets of the
Borrower and any of its Subsidiaries in whomsoever's possession, and to examine
the books of account of the Borrower and any of its Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as such Agent or the Required Banks may desire.
8.03 Insurance. (a) The Borrower will, and will cause each of its
---------
Subsidiaries to (i) maintain, with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice and
(ii) furnish to each Agent and each of the Banks, upon request, full information
as to the insurance carried. In addition to the requirements of the immediately
preceding sentence, the Borrower will at all times cause insurance of the types
described in Schedule VIII to be maintained (with the same scope of coverage as
that described in Schedule VIII) at levels which are consistent with its
practices immediately before the Initial Borrowing Date, taking into account the
age and fair market value of equipment, or otherwise in form, scope and amount
acceptable to the Administrative Agent. Such insurance shall include physical
damage insurance on all real and personal property (whether now owned or
hereafter acquired) on an all risk basis and business interruption insurance.
The provisions of this Section 8.03 shall be deemed supplemental to, but not
duplicative of, the provisions of any Security Documents that require the
maintenance of insurance.
(b) The Borrower will, and will cause each of its Subsidiaries to, at
all times keep the respective property of the Borrower and its Subsidiaries
(except real or personal property leased or financed through third parties in
accordance with this Agreement) insured in favor of the Collateral Agent, and
all policies (including Mortgage Policies) or certificates with respect to such
insurance (and any other insurance maintained by, or on behalf of, the Borrower
or any Subsidiary of the Borrower) (i) shall be endorsed to the Collateral
Agent's satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as certificate holder, mortgagee and
loss payee with respect to real property, certificate holder and loss payee with
respect to personal property, additional insured with respect to general
liability and umbrella liability coverage and certificate holder with respect to
workers' compensation insurance), (ii) shall state that such insurance policies
shall not be canceled or materially changed without at least 30 days' prior
written notice thereof by the respective insurer to the Collateral Agent and
(iii) shall be deposited with the Collateral Agent.
-59-
(c) If the Borrower or any of its Subsidiaries shall fail to maintain
all insurance in accordance with this Section 8.03, or if the Borrower or any of
its Subsidiaries shall fail to so name the Collateral Agent as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation),
following written notice to the Borrower, to procure such insurance, and the
Credit Parties agree to jointly and severally reimburse the Administrative Agent
or the Collateral Agent, as the case may be, for all costs and expenses of
procuring such insurance.
8.04 Payment of Taxes. The Borrower will pay and discharge, and will
----------------
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims for sums that have become due
and payable which, if unpaid, might become a Lien not otherwise permitted under
Section 9.03(a); provided, that neither the Borrower nor any of its Subsidiaries
--------
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.05 Corporate Franchises. The Borrower will do, and will cause each
--------------------
of its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses, certifications, accreditations
and patents, except for rights, franchises, authority to do business, licenses,
certifications, accreditations and patents the loss of which (individually and
in the aggregate) could not reasonably be expected to have a Material Adverse
Effect; provided, however, that any transaction permitted by Section 9.02 will
-------- -------
not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes; etc. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliance as
would not have a Material Adverse Effect or a material adverse effect on the
ability of any Credit Party to perform its obligations under any Credit Document
to which it is a party.
8.07 Compliance with Environmental Laws. (a) (i) The Borrower will
----------------------------------
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of its
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, Release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous Materials
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property, unless the failure to comply with the
requirements specified in clause (i) or (ii) above, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. If the
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Borrower or any of its Subsidiaries, or any tenant or occupant of any Real
Property owned or operated by the Borrower or any of its Subsidiaries, cause or
permit any intentional or unintentional act or omission resulting in the
presence or Release of any Hazardous Material (except in compliance with
applicable Environmental Laws), the Borrower agrees, if required to do so under
any applicable directive or order of any governmental agency, to undertake,
and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at
their sole expense, any clean up, removal, remedial or other action required
pursuant to Environmental Laws to remove and clean up any Hazardous Materials
from any Real Property except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect; provided that neither the Borrower
--------
nor any of its Subsidiaries shall be required to comply with any such order or
directive which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP; and provided further that it will
--------
not constitute a breach under this Section 8.07 if a Person other than the
Borrower or any of its Subsidiaries takes such action on behalf of the Borrower
or any of its Subsidiaries.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at its
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, addressing the matters in clause (i), (ii) or (iii) below
which gives rise to such request (or, in the case of a request pursuant to
following clause (i), addressing such matter as may be requested by the
Administrative Agent or the Required Banks) and estimating the range of the
potential costs of any removal, remedial or other corrective action in
connection with any such matter, provided that in no event shall such request be
made unless (i) an Event of Default has occurred and is continuing, (ii) the
Banks receive notice under Section 8.01(h) for any event for which notice is
required to be delivered for any such Real Property or (iii) the Administrative
Agent or the Required Banks reasonably believe that there was a breach of any
representation, warranty or covenant contained in Section 7.17 or 8.07(a). If
the Borrower fails to provide the same within 60 days after such request was
made, the Administrative Agent may order the same, and the Borrower shall grant
and hereby grants, to the Administrative Agent and the Banks and their agents
access to such Real Property and specifically grants, the Administrative Agent
and the Banks and their agents an irrevocable non-exclusive license, subject to
the rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
8.08 ERISA. As soon as possible and, in any event, within ten days
-----
after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, the Borrower
will deliver to each of the Banks a certificate of the chief financial officer
of the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto: that a Reportable Event has occurred (except to the extent that the
Borrower has previously delivered to the Banks a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the
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advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application may be or has been made for a waiver or modification
of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to be
made with respect to a Plan has not been timely made; that a Plan has been or
may be terminated, reorganized, partitioned or declared insolvent under Title IV
of ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be
or have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or
may incur any liability (including any indirect, contingent, or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan. The Borrower will deliver to each of the Banks (i) a
complete copy of the annual report (on Internal Revenue Service Form 5500-
series) of each Plan (including, to the extent required, the related financial
and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service and (ii) copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. In addition to any certificates or notices delivered
to the Banks pursuant to the first sentence hereof, copies of annual reports and
any records, documents or other information required to be furnished to the
PBGC, and any material notices received by the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate with respect to any Plan shall be delivered to
the Banks no later than ten days after the date such report has been filed with
the Internal Revenue Service or such records, documents and/or information has
been furnished to the PBGC or such notice has been received by the Borrower,
such Subsidiary or such ERISA Affiliate, as applicable.
8.09 Good Repair. The Borrower will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, ordinary wear and
tear excepted, and that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
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8.11 Additional Security; Further Assurances. (a) The Borrower
---------------------------------------
will, and will cause each of its Wholly-Owned Domestic Subsidiaries (and to the
extent Section 8.12 is operative, each of its Wholly-Owned Foreign Subsidiaries)
(other than a Shell Company, so long as it remains a Shell Company) to, grant to
the Collateral Agent security interests and mortgages in such assets and real
property of the Borrower and its Wholly-Owned Subsidiaries as are not covered by
the original Security Documents, and as may be requested from time to time by
the Administrative Agent or the Required Banks (collectively, the "Additional
Security Documents"). All such security interests and mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Collateral Agent and shall constitute valid and enforceable perfected security
interests and mortgages superior to and prior to the rights of all third Persons
and subject to no other Liens except for Permitted Liens. The Additional
Security Documents or instruments related thereto shall have been duly recorded
or filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Security Documents and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full. Notwithstanding the foregoing, this Section 8.11(a) shall not
apply to (and the Borrower and its Subsidiaries shall not be required to grant a
mortgage in) any Real Property the fair market value of which (as determined in
good faith by senior management of the Borrower) is less than $500,000.
(b) The Borrower will, and will cause each of its Wholly-Owned
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this Section 8.11 has
been complied with.
(c) Each of the Credit Parties agrees that each action required above
by this Section 8.11 shall be completed as soon as possible, but in no event
later than 90 days after such action is either requested to be taken by the
Collateral Agent, the Administrative Agent or the Required Banks or required to
be taken by the Borrower and its Subsidiaries pursuant to the terms of this
Section 8.11.
(d) At such time as the assets of all Persons owned by the Borrower
and its Subsidiaries which theretofore constitute Shell Companies exceed
$250,000 in the aggregate, the Borrower shall notify the Administrative Agent as
to which Persons shall cease to constitute Shell Companies or, in the absence of
such designation, all such Persons shall at such time cease to be Shell
Companies.
8.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required
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Banks deliver evidence, in form and substance mutually satisfactory to the
Administrative Agent and the Borrower, with respect to any Wholly-Owned Foreign
Subsidiary of the Borrower which has not already had all of its stock pledged
pursuant to the Pledge Agreement that (i) a pledge of more than 66-2/3% of the
total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, (ii) the entering into by such Foreign Subsidiary
of a security agreement in substantially the form of the Security Agreement,
(iii) the entering into by such Foreign Subsidiary of a pledge agreement in
substantially the form of the Pledge Agreement and (iv) the entering into by
such Foreign Subsidiary of a guaranty in substantially the form of the
Subsidiaries Guaranty, in any such case could reasonably be expected to cause
the undistributed earnings of such Foreign Subsidiary as determined for Federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then in the
case of a failure to deliver the evidence described in clause (i) above, that
portion of such Foreign Subsidiary's outstanding capital stock so issued by such
Foreign Subsidiary, in each case not theretofore pledged pursuant to the Pledge
Agreement, shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) or (iii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security
agreement in substantially similar form, if needed) or the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), as the case
may be, granting the Secured Creditors a security interest in all of such
Foreign Subsidiary's assets or the capital stock and promissory notes owned by
such Foreign Subsidiary, as the case may be, and securing the obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the Subsidiaries Guaranty
shall have been executed by such Foreign Subsidiary, the obligations of such
Foreign Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iv) above, such Foreign Subsidiary shall execute
and deliver the Subsidiaries Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the obligations of the Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement, in each case to the extent that the entering into of such
Security Agreement, Pledge Agreement or Subsidiaries Guaranty (or substantially
similar document) is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.12 to
be in form and substance reasonably satisfactory to the Administrative Agent
and/or the Collateral Agent.
8.13 Use of Proceeds. All proceeds of the Loans shall be used as
---------------
provided in Section 7.05.
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
----------------------
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Wholly-Owned Domestic Subsidiaries may
from time to time effect Permitted Acquisitions, so long as (in each case except
to the extent the Required Banks otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the Borrower shall
have given the Administrative Agent and the Banks at least 5 Business Days'
prior written notice of the proposed Permitted Acquisition; (iii) calculations
are made by the Borrower of compliance with the covenants contained in Sections
9.08 and 9.09 (in each case, giving effect to the last sentence
-64-
appearing therein) for the period of four consecutive fiscal quarters (taken as
one accounting period) most recently ended prior to the date of such Permitted
Acquisition (each, a "Calculation Period"), on a Pro Forma Basis as if the
--- -----
respective Permitted Acquisition (as well as all other Permitted Acquisitions
theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period, and such recalculations
shall show that such financial covenants would have been complied with if the
Permitted Acquisition had occurred on the first day of such Calculation Period
(for this purpose, if the first day of the respective Calculation Period occurs
prior to the Initial Borrowing Date, calculated as if the covenants contained in
said Sections 9.08 and 9.09 (in each case, giving effect to the last sentence
appearing therein) had been applicable from the first day of the Calculation
Period); (iv) calculations are made by the Borrower demonstrating compliance
with an Adjusted Senior Leverage Ratio not to exceed 2.50:1.0 on the last day of
the relevant Calculation Period, on a Pro Forma Basis as if the respective
--- -----
Permitted Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred on the
first day of such Calculation Period; (v) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Permitted Acquisition
(both before and after giving effect thereto), unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date; (vi) in
the event the Maximum Permitted Consideration payable in connection with the
proposed Permitted Acquisition is equal to or greater than $20,000,000, the
Borrower provides to the Administrative Agent and the Banks as soon as available
but not later than 5 Business Days after the execution thereof, a copy of any
executed purchase agreement or similar agreement with respect to such Permitted
Acquisition; (vii) the Maximum Permitted Consideration payable in connection
with the proposed Permitted Acquisition does not exceed $80,000,000 (of which no
more than $50,000,000 shall consist of cash); (viii) the Maximum Permitted
Consideration payable in cash in connection with the proposed Permitted
Acquisition, when combined with the aggregate Maximum Permitted Consideration
paid in cash in connection with all other Permitted Acquisitions consummated
during the six-month period prior to the date of the consummation of the
proposed Permitted Acquisition, does not exceed $125,000,000; (ix) after giving
effect to such Permitted Acquisition and the payment of all post-closing
purchase price adjustments required (in the good faith determination of the
Borrower) in connection with such Permitted Acquisition (and all other Permitted
Acquisitions for which such purchase price adjustments may be required to be
made) and all capital expenditures (and the financing thereof) reasonably
anticipated by the Borrower to be made in the business acquired pursuant to such
Permitted Acquisition within the 90-day period (such period for any Permitted
Acquisition, a "Post-Closing Period") following such Permitted Acquisition (and
in the businesses acquired pursuant to all other Permitted Acquisitions with
Post-Closing Periods ended during the Post-Closing Period of such Permitted
Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or
exceed $25,000,000; and (x) the Borrower shall have delivered to the
Administrative Agent an officer's certificate executed by an Authorized Officer
of the Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (v), inclusive, and clauses (vii),
(viii) and (ix) and containing the calculations required by the preceding
clauses (iii), (iv), (vii), (viii) and (ix); provided that for purposes of
--------
determining compliance with clauses (vii) and (viii) above, shares of Borrower
Common Stock purchased on the open-market in
-65-
reliance on Section 9.06(vi) and issued as consideration to the respective
seller in connection with the respective proposed Permitted Acquisition shall be
deemed to be cash consideration, with the value of such shares to be determined
as provided in the definition of Maximum Permitted Consideration.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, all capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Section 9.15.
(c) The Borrower shall cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and
to execute and deliver, all of the documentation required by, Sections 8.11 and
9.15, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower that the certifications by the
Borrower (or by one or more of its Authorized Officers) pursuant to Section
8.14(a) are true and correct and that all conditions thereto have been satisfied
and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 6 and 10.
8.15 Maintenance of Company Separateness. The Borrower will, and
-----------------------------------
will cause each of its Subsidiaries to, satisfy customary Company formalities,
including, as applicable, the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of Company offices and records. Neither the Borrower nor
any of its Subsidiaries shall take any action, or conduct its affairs in a
manner, which is likely to result in the Company existence of the Borrower or
any of its Subsidiaries being ignored, or in the assets and liabilities of the
Borrower or any of its Subsidiaries being substantively consolidated with those
of any other such Person in a bankruptcy, reorganization or other insolvency
proceeding.
8.16 Performance of Obligations. The Borrower will, and will cause
--------------------------
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, deed of trust, indenture, loan agreement or credit agreement and
each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.17 Year 2000 Compliance. The Borrower will ensure that its
--------------------
Information Systems and Equipment are at all times after September 30, 1999 Year
2000 Compliant in all material respects, and shall notify the Administrative
Agent and each Bank promptly upon detecting any material failure of the
Information Systems and Equipment to be Year 2000 Compliant. In addition, the
Borrower shall provide the Administrative Agent and each Bank with such
information about its year 2000 computer readiness (including, without
limitation, information as to contingency plans, budgets and testing results) as
the Administrative Agent or such Bank shall reasonably request.
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8.18 Margin Regulations. The Borrower shall take all actions so that
------------------
at all times the fair market value of all Margin Stock owned by the Borrower and
its Subsidiaries shall not exceed $1,000,000. So long as the covenant contained
in the immediately preceding sentence is complied with, all Margin Stock at any
time owned by the Borrower and its Subsidiaries shall not constitute Pledge
Agreement Collateral and no security interest shall be granted therein pursuant
to any Credit Document. Without excusing any violation of the first sentence of
this Section 8.18, if at any time the fair market value of all Margin Stock
owned by the Borrower and its Subsidiaries exceeds $1,000,000, then (x) all
Margin Stock owned by the Credit Parties shall be pledged, and delivered for
pledge, pursuant to the Pledge Agreement and (y) the Borrower shall execute and
deliver to the Banks appropriate completed forms (including, without limitation,
Forms G-3 and U-1, as appropriate) establishing compliance with the Margin
Regulations. If at any time any Margin Stock is required to be pledged as a
result of the provisions of the immediately preceding sentence, repayments of
outstanding Obligations shall be required, and subsequent Credit Events shall be
permitted, only in compliance with the applicable provisions of the Margin
Regulations.
8.19 Common Stock Repurchase. (a) Within 15 Business Days following
-----------------------
the Initial Borrowing Date, the Borrower shall have (i) utilized the proceeds in
the BT Tender Offer Account to purchase the Borrower Common Stock tendered, and
not theretofore withdrawn, pursuant to the Tender Offer (or, if more than
25,500,000 shares of Borrower Common Stock are so tendered, such lesser amount
of shares as is specified by the Tender Documents) in accordance with the
relevant requirements of the Tender Offer Documents (the "Common Stock
Repurchase") and (ii) utilized the full amount of the funds deposited in the BT
Tender Offer Account representing cash on hand of the Borrower and the cash
proceeds from the issuance of the Senior Subordinated Notes and the Convertible
Subordinated Notes to make payments to the Tender Offer Paying Agent owing in
connection with the Common Stock Repurchase prior to utilizing any portion of
the funds in the BT Tender Offer Account representing proceeds of Loans for any
such purpose. All conditions precedent to the consummation of the Common Stock
Repurchase as set forth in the Tender Offer Documents shall have been satisfied,
and not waived unless consented to by the Agents and the Required Banks. On the
date of the consummation thereof, the Common Stock Repurchase shall have been
consummated in accordance with the terms and conditions of the Tender Offer
Documents and all applicable law.
(b) Within 90 days following the Initial Borrowing Date, the Borrower
shall have repaid outstanding Loans and/or reduced the Total Revolving Loan
Commitment, in each case to the extent required by Section 4.02(f).
SECTION 9. Negative Covenants. The Borrower hereby covenants and
------------------
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Total Commitment has terminated, no Letters
of Credit or Notes are outstanding and the Loans, together with interest, Fees
and all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:
9.01 Changes in Business. The Borrower and its Subsidiaries will not
-------------------
engage in any business other than a Permitted Business.
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9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. The
-------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets (other than inventory and equipment which, in the
reasonable judgment of the Borrower or such Subsidiary, is obsolete, worn out or
otherwise no longer useful in the conduct of such Person's business, in each
case to the extent such inventory or equipment is conveyed, sold, leased or
otherwise disposed of in the ordinary course of business), or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, general intangibles and
equipment in the ordinary course of business) of any Person or agree to do any
of the foregoing at any future time, except that the following shall be
permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into
operating leases in the ordinary course of business with respect to real or
personal property;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the
extent not in violation of Section 9.10;
(c) Investments permitted pursuant to Section 9.05 and the
liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of assets (excluding capital stock of, or other equity interests
in, Subsidiaries and Joint Ventures), provided that (w) each such sale or
--------
disposition shall be for an amount at least equal to the fair market value
thereof (as determined in good faith by senior management of the Borrower),
(x) each such sale or disposition (I) results in consideration at least 75%
of which (taking into account the amount of cash, the principal amount of
any promissory notes and assumed Indebtedness and the fair market value, as
determined by the Borrower in good faith, of any other consideration) shall
be in the form of cash or (II) in the case of an asset or assets subject to
Capitalized Lease Obligations, results in the assumption of all of the
Capitalized Lease Obligations of the Borrower or such Subsidiary in respect
of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds
from all assets sold or otherwise disposed of pursuant to this clause (d),
when added to the aggregate amount of all Capitalized Lease Obligations
assigned in connection with all assets sold or otherwise disposed of
pursuant to this clause (d), shall not exceed $10,000,000 in the aggregate
in any fiscal year of the Borrower and (z) the Net Sale Proceeds therefrom
are either applied to repay Term Loans and/or reduce the Total Revolving
Loan Commitment as provided in Section 4.02(c) or reinvested in replacement
assets or retained to the extent permitted by Section 4.02(c);
(e) any Subsidiary of the Borrower may transfer assets to the
Borrower or to any Subsidiary Guarantor, so long as any security interests
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in the assets so transferred shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such transfer);
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(f) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, the Borrower, so long as (i) the Borrower is
the surviving corporation of any such merger, dissolution or liquidation
and (ii) any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to
such merger, dissolution or liquidation);
(g) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, any Subsidiary Guarantor, so long as (i) such
Subsidiary Guarantor is the surviving corporation of any such merger,
dissolution or liquidation and (ii) any security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets of such Subsidiary shall remain in full
force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolution or liquidation);
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.14;
(i) the Borrower and its Subsidiaries may, in the ordinary course of
business, license, as licensor or licensee, patents, trademarks, copyrights
and know-how to or from third Persons or one another, so long as each such
license is permitted to be assigned pursuant to the Security Agreement (to
the extent that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant to
the Security Agreement in the intellectual property covered by such
license;
(j) the Borrower and its Subsidiaries may sell or exchange specific
items of equipment, so long as the purpose of each such sale or exchange is
to acquire (and results within 90 days of such sale or exchange in the
acquisition of) replacement items of equipment which are the functional
equivalent of the item of equipment so sold or exchanged;
(k) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of the capital stock of, or other equity interests in, any of their
respective Subsidiaries and Joint Ventures which, in the reasonable opinion
of such Person, are uneconomic or no longer useful in the conduct of such
Person's business, provided that (w) each such sale or disposition shall be
--------
for an amount at least equal to the fair market value thereof (as
determined in good faith by senior management of the Borrower), (x) each
such sale results in consideration at least 75% of which (taking the amount
of cash, the principal amount of any promissory notes and assumed
Indebtedness and the fair market value, as determined by the Borrower in
good faith, of any other non-cash consideration) shall be in the form of
cash (for purposes of this clause (x) treating as cash consideration the
amount of any trade payables and the principal amount of Indebtedness for
borrowed money assumed by the respective purchaser of assets), (y) the
aggregate Net Sale Proceeds of all assets sold or otherwise disposed of
pursuant to this clause (k) after the
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Effective Date shall not exceed $25,000,000 in the aggregate and (z) the
Net Sale Proceeds therefrom are either applied to repay Term Loans and/or
reduce the Total Revolving Loan Commitment as provided in Section 4.02(c)
or reinvested in replacement assets or retained to the extent permitted by
Section 4.02(c);
(l) the Borrower and its Subsidiaries may enter into agreements to
effect acquisitions and dispositions of stock or assets, so long as the
respective transaction is permitted pursuant to the other provisions of
this Section 9.02; provided that the Borrower and its Subsidiaries may
--------
enter into agreements to effect acquisitions and dispositions of capital
stock or assets in transactions not permitted by the provisions of this
Section 9.02 at the time the respective agreement is entered into, so long
as in the case of each such agreement, such agreement shall be expressly
conditioned upon obtaining the requisite consent of the Required Banks
under this Agreement or the repayment of all obligations hereunder as a
condition precedent to the consummation of the respective transaction and,
if for any reason the transaction is not consummated because of failure to
obtain such consent or repay such obligations, the aggregate liability of
the Borrower and its Subsidiaries under any such agreement shall not exceed
$2,500,000;
(m) the Borrower and any of its Subsidiaries may sell or discount, in
each case without recourse, accounts receivables arising in the ordinary
course of business, but only in connection with the compromise or
collection thereof; and
(n) the Borrower and any of its Subsidiaries may sell, lease or
otherwise dispose of Janitorial Equipment in the ordinary course of
business and consistent with past practices of the Borrower and its
Subsidiaries as is effect on the Effective Date, so long as the Net Sale
Proceeds therefrom are either applied to repay Term Loans and/or reduce the
Total Revolving Loan Commitment as provided in Section 4.02(c) or
reinvested in replacement Janitorial Equipment to the extent permitted by
Section 4.02(c).
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale or other disposition of any Collateral, or any Collateral is
sold or otherwise disposed of as permitted by this Section 9.02, such Collateral
(unless transferred to the Borrower or a Subsidiary thereof) shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as are
appropriate in connection therewith.
9.03 Liens. The Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income,
except for the following (collectively, the "Permitted Liens"):
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(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the ordinary course of
business, and which either (x) do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
(d) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule IX, without
giving effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09,
provided that unless the judgment, decree or attachment is fully insured,
--------
the amount of cash and property (determined on a fair market value basis)
deposited or delivered to secure the respective judgment or decree or
subject to attachment shall not exceed $10,000,000 at any time;
(f) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the Borrower and its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z) to
secure the performance by the Borrower and its Subsidiaries of leases of
Real Property, to the extent incurred or made in the ordinary course of
business consistent with past practices, provided that the aggregate amount
--------
of deposits at any time pursuant to sub-clauses (y) and (z) shall not
exceed $2,500,000 in the aggregate;
(g) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the Borrower or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances, in each
case not securing Indebtedness and
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not interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases entered into by the Borrower and its
Subsidiaries in the ordinary course of business;
(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), provided that (x) such Liens only serve to secure the
--------
payment of Indebtedness arising under such Capitalized Lease Obligation
(and other Indebtedness permitted by Section 9.04(d) and incurred from the
same Person as such Indebtedness) and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any other
asset of the Borrower or any of its Subsidiaries (other than other assets
subject to Capitalized Lease Obligations and/or Indebtedness incurred
pursuant to Section 9.04(d), in each case owing to the same Person as such
Capitalized Lease Obligation);
(k) Permitted Encumbrances;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective
purchase) of assets acquired after the Initial Borrowing Date, provided
--------
that (i) any such Liens attach only to the assets so purchased, upgrades
thereon and, if the asset so purchased is an upgrade, the original asset
itself (and such other assets financed by the same financing source), (ii)
the Indebtedness (other than Indebtedness incurred from the same financing
source to purchase other assets and excluding Indebtedness representing
obligations to pay installation and delivery charges for the property so
purchased) secured by any such Lien does not exceed 100%, nor is less than
80%, of the lesser of the fair market value or the purchase price of the
equipment being purchased at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 9.04(d); and
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (i) any Indebtedness that is secured by such
--------
Liens is permitted to exist under Section 9.04(d), and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries.
9.04 Indebtedness. The Borrower will not, and will not permit any of
------------
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Existing Indebtedness outstanding on the Initial Borrowing Date
and listed on Schedule IV (as reduced by any repayments thereof after the
Initial Borrowing Date), without giving effect to any subsequent extension,
renewal or refinancing thereof;
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(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the Borrower against fluctuations in interest rates in
respect of Indebtedness otherwise permitted under this Agreement;
(d) (x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed by the Borrower or any Wholly-Owned
Domestic Subsidiary pursuant to a Permitted Acquisition as a result of a
merger or consolidation or the acquisition of an asset securing such
Indebtedness) (the "Permitted Acquired Debt"), so long as (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (ii) such Indebtedness
does not constitute debt for borrowed money (except to the extent such
Indebtedness cannot be repaid in accordance with its terms at the time of
its assumption pursuant to such Permitted Acquisition and the aggregate
principal amount of all such Indebtedness for borrowed money permitted
pursuant to this parenthetical does not exceed $15,000,000), it being
understood and agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute debt for borrowed money for purposes of
this clause (ii) and (y) Capitalized Lease Obligations and Indebtedness of
the Borrower and its Subsidiaries representing purchase money Indebtedness
secured by Liens permitted pursuant to Section 9.03(l), provided, that the
--------
sum of (I) the aggregate principal amount of all Permitted Acquired Debt at
any time outstanding plus (II) the aggregate amount of Capitalized Lease
----
Obligations incurred on and after the Initial Borrowing Date and
outstanding at any time plus (III) the aggregate principal amount of all
----
such purchase money Indebtedness incurred on and after the Initial
Borrowing and outstanding at any time, shall not exceed $25,000,000;
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(f);
(f) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Senior Subordinated Notes and the other
Senior Subordinated Notes Documents in an aggregate principal amount not to
exceed $200,000,000 less the amount of any repayments of principal thereof
after the Effective Date;
(g) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Convertible Subordinated Notes and the other
Convertible Subordinated Note Documents in an aggregate principal amount
not to exceed $100,000,000 plus the aggregate principal amount of all
----
Convertible Subordinated Notes issued to pay accrued and unpaid interest on
then outstanding Convertible Subordinated Notes in accordance with the
terms thereof less (without duplication) the amount of any repayments of
----
principal thereof and the amount of all reductions to the outstanding
principal amount of the Convertible Subordinated Notes as a result of
conversions thereof into Borrower Common Stock, in each case occurring
after the Effective Date;
(h) Indebtedness of the Borrower or any of its Subsidiaries which may
be deemed to exist in connection with agreements providing for
indemnification, purchase price adjustments and similar obligations in
connection with acquisitions or sales of assets and/or businesses effected
in accordance with the requirements of this Agreement (so
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long as any such obligations are those of the Person making the respective
acquisition or sale, and, except as permitted by Section 9.04(i)(z), are
not guaranteed by any other Person);
(i) Contingent Obligations of (x) the Borrower or any of its
Subsidiaries as a guarantor of the lessee under any lease pursuant to which
the Borrower or any of its Wholly-Owned Subsidiaries is the lessee so long
as such lease is otherwise permitted hereunder, (y) the Borrower or any of
its Subsidiaries as a guarantor of any Capitalized Lease Obligation to
which a Joint Venture is a party or any contract entered into by such Joint
Venture in the ordinary course of business; provided that the maximum
--------
liability of the Borrower or any of its Subsidiaries in respect of any
obligations as described pursuant to preceding clause (y) is permitted as
an Investment on such date pursuant to the requirements of Section 9.05(l)
and (z) the Borrower as a guarantor of Indebtedness of any of its
Subsidiaries which may be deemed to exist pursuant to acquisition
agreements entered into in connection with Permitted Acquisitions
(including any obligation to pay the purchase price therefor and any
indemnification, purchase price adjustment and similar obligations);
(j) Permitted Subordinated Refinancing Indebtedness incurred in
accordance with the requirements of the definition thereof, so long as no
Default or Event of Default is in existence at the time of any incurrence
thereof and immediately after giving effect thereto;
(k) unsecured Indebtedness of the Borrower and its Subsidiaries with
respect to performance bonds and surety bonds, in each case incurred in the
ordinary course of business and consistent with the past practices of the
Borrower and its Subsidiaries as in effect on the Effective Date;
(l) Indebtedness of the Borrower under the Shareholder Subordinated
Notes issued in accordance with the terms of Section 9.06(ii); and
(m) Permitted Subordinated Indebtedness incurred in accordance with
the requirements of the definition thereof and additional unsecured
Indebtedness of the Borrower and its Subsidiaries not otherwise permitted
pursuant to this Section 9.04, so long as the aggregate principal amount of
all Indebtedness permitted by this clause (m), when added to the aggregate
liquidation preference for all Disqualified Preferred Stock issued after
the Effective Date pursuant to Section 9.13(c), does not exceed $35,000,000
at any time outstanding.
9.05 Advances; Investments; Loans. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(any of the foregoing, an "Investment"), except:
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(a) the Borrower and its Subsidiaries may invest in cash and Cash
Equivalents, provided that during any time that Revolving Loans or
--------
Swingline Loans are outstanding the aggregate amount of cash and Cash
Equivalents held by the Borrower and its Subsidiaries (excluding any cash
on deposit in the BT Tender Offer Account during the fifteen day period
following the Initial Borrowing Date) shall not exceed for any period of
three consecutive Business Days (x) at any time within the 90 day period
following the Initial Borrowing Date, $30,000,000, (y) at any time after
the 90th day following the Initial Borrowing Date and on or prior to the
180th day following the Initial Borrowing Date, $20,000,000 and (z) at any
time thereafter, $10,000,000;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the Borrower or such
Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations and equity securities) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Schedule VI shall be permitted, without giving
effect to any additions thereto or replacements thereof;
(f) the Borrower may make intercompany loans and advances to any
Subsidiary Guarantor, and any Subsidiary Guarantor may make intercompany
loans and advances to the Borrower or any other Subsidiary Guarantor
(collectively, "Intercompany Loans"), provided, that (x) each Intercompany
--------
Loan shall be evidenced by an Intercompany Note and (y) each such
Intercompany Note shall be pledged to the Collateral Agent pursuant to the
Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to
employees of the Borrower and its Subsidiaries in connection with
relocations, purchases by such employees of Borrower Common Stock or
options or similar rights to purchase Borrower Common Stock and other
ordinary course of business purposes shall be permitted, so long as the
aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $5,000,000;
(h) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
Borrower Common Stock, so long as no cash is
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actually advanced by the Borrower or any of its Subsidiaries to such
officers or employees in connection with the acquisition of any such
obligations;
(i) the Common Stock Repurchase shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries
may make Permitted Acquisitions in accordance with the relevant
requirements of Section 8.14 and the component definitions as used therein;
(k) the Borrower and its Subsidiaries may own the capital stock of
their respective Subsidiaries created or acquired in accordance with the
terms of this Agreement (so long as all amounts invested in such
Subsidiaries are independently justified under another provision of this
Section 9.05);
(l) so long as no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment, the Borrower
shall be permitted to make Investments in any Joint Venture (x) in the form
of a contribution of Borrower Common Stock to such Joint Venture and (y) on
any date in an amount not to exceed the Available JV Basket Amount on such
date (after giving effect to all prior and contemporaneous adjustments
thereto, except as a result of such Investment), it being understood and
agreed that to the extent the Borrower or one or more other Credit Parties
(after the respective Investment has been made) receives a cash return from
the respective Joint Venture of amounts previously invested pursuant to
clause (y) of this Section 9.05(1) (which cash return may be made by way of
repayment of principal in the case of loans and cash equity returns
(whether as a distribution, dividend or redemption) in the case of equity
investments), then the amount of such return of investment shall, upon the
Administrative Agent's receipt of a certification of the amount of the
return of investment from an Authorized Officer, apply to increase the
Available JV Basket Amount, provided that the aggregate amount of increases
--------
to the Available JV Basket Amount described above shall not exceed the
amount of returned investment and, in no event, shall the amount of the
increases made to the Available JV Basket Amount in respect of any
Investment exceed the amount previously invested pursuant to clause (y) of
this Section 9.05(1);
(m) the Borrower and its Subsidiaries may receive and hold promissory
notes and other non-cash consideration received in connection with any
asset sale permitted by Section 9.02(d);
(n) the Borrower and its Subsidiaries may convey, lease, license,
sell or otherwise transfer assets and properties to the extent permitted by
Sections 9.02(e), (g) and (i);
(o) the Borrower and any Subsidiary Guarantor may make cash equity
contributions to any (other) Subsidiary Guarantor;
(p) the Borrower and its Subsidiaries may make advances in the form
of a prepayment of expenses, so long as such expenses were incurred in the
ordinary course of business and are being paid in accordance with customary
trade terms of the Borrower or such Subsidiary; and
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(q) in addition to investments permitted by clauses (a) through (p)
of this Section 9.05, the Borrower and its Subsidiaries may make additional
loans, advances and Investments to or in a Person not an Affiliate in an
aggregate amount for all loans, advances and Investments made pursuant to
this clause (q) (determined without regard to any write-downs or write-offs
thereof and, in the case of an Investment made using Borrower Common Stock,
without giving effect to the fair market value of such Borrower Common
Stock), net of cash repayments of principal in the case of loans, sale
proceeds in the case of Investments in the form of debt instruments and
cash equity returns (whether as a distribution, dividend, redemption or
sale) in the case of equity investments, not to exceed $25,000,000.
9.06 Dividends; etc. The Borrower will not, and will not permit any
---------------
of its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in common stock of the Borrower or any such Subsidiary, as the
case may be) or return any capital to, its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock,
now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and the Borrower will not permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any other Subsidiary, as the
case may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock)
(all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower
or any Wholly-Owned Subsidiary of the Borrower;
(ii) the Borrower may redeem or purchase shares of Borrower Common
Stock or options to purchase Borrower Common Stock, as the case may be,
held by former employees of the Borrower or any of its Subsidiaries
following the termination of their employment (by death, disability or
otherwise), provided that (x) the only consideration paid by the Borrower
--------
in respect of such redemptions and/or purchases shall be cash, forgiveness
of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A)
the aggregate amount paid by the Borrower in cash in respect of all such
redemptions and/or purchases plus (B) the aggregate amount of liabilities
so forgiven plus (C) the aggregate amount of all cash principal and
interest payments made on Shareholder Subordinated Notes, in each case
after the Initial Borrowing Date, shall not exceed $5,000,000, and (z) at
the time of any cash payment or forgiveness of liabilities permitted to be
made pursuant to this Section 9.06(ii), including any cash payment under a
Shareholder Subordinated Note, no Default or Event of Default shall then
exist or result therefrom;
(iii) on the Initial Borrowing Date and concurrently with the Credit
Events then occurring, the Borrower may effect the Common Stock Repurchase
in accordance with the requirements of Section 5.08(a);
(iv) so long as no Default or Event of Default exists or would result
therefrom, the Borrower may pay regularly accruing cash Dividends on
Disqualified Preferred Stock
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issued pursuant to Section 9.13(c), with such Dividends to be paid in
accordance with the terms of the respective certificate of designation
therefor;
(v) any Subsidiary of the Borrower that is not a Wholly-Owned
Subsidiary may pay cash Dividends to its shareholders or partners
generally, so long as the Borrower or its respective Subsidiary which owns
the equity interest or interests in the Subsidiary paying such Dividends
receives at least its proportionate share thereof (based upon its relative
holdings of equity interests in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary or the terms of any
agreements applicable thereto);
(vi) the Borrower may purchase shares of Borrower Common Stock on the
open-market so long as (x) no Default or Event of Default is then in
existence or would result therefrom, (y) such shares of Borrower Common
Stock are reissued as consideration to a seller in connection with a
Permitted Acquisition within three months following the purchase thereof as
provided above and (z) the aggregate amount of cash paid to purchase such
shares after the Effective Date shall not exceed the sum of (I) $20,000,000
plus (II) after the reissuance of any such shares as contemplated by clause
----
(y) above, the aggregate amount of cash initially paid by the Borrower to
purchase such shares on the open-market;
(vii) the Borrower may pay regularly accruing Dividends with respect
to Qualified Preferred Stock through the issuance of additional shares of
Qualified Preferred Stock (but not in cash) in accordance with the terms of
the documentation governing the same;
(viii) at any time and from time to time prior to the 90th day
following the Initial Borrowing Date, in the event any portion of the
proceeds deposited in the BT Tender Offer Account on the Initial Borrowing
Date are not utilized to finance the Common Stock Repurchase, the Borrower
may purchase shares of Borrower Common Stock on the open-market in cash,
so long as (x) no Default or Event of Default is then in existence or would
result therefrom, (y) the aggregate amount of cash paid to purchase shares
of Borrower Common Stock pursuant to this clause (viii) does not exceed the
aggregate amount of the proceeds deposited in the BT Tender Offer Account
on the Initial Borrowing Date and not utilized to finance the Common Stock
Repurchase, and (z) any such purchase of shares of Borrower Common Stock
shall be made on a basis no less favorable from the Borrower's perspective
than purchases of Borrower Common Stock pursuant to the Common Stock
Repurchase (i.e., at a cash price per share not to exceed $22.50); provided
---- --------
that in no event shall the aggregate amount of cash used to purchase
Borrower Common Stock pursuant to this clause (viii), when combined with
the aggregate amount of cash actually paid to finance the Common Stock
Repurchase, exceed the aggregate amount permitted to be paid to effect the
Common Stock Repurchase pursuant to Section 5.08(a); and
(ix) the Borrower may pay cash in lieu of fractional shares of
Borrower Common Stock issued in connection with a conversion of Convertible
Subordinated Notes into Borrower Common Stock in accordance with the
relevant provisions of the
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Convertible Subordinated Notes Indenture, so long as the aggregate amount
of all cash paid pursuant to this clause (ix), when added to the aggregate
amount of all cash interest paid in lieu of fractional Convertible
Subordinated Notes as permitted in the second proviso to Section 9.12(iv),
does not exceed $25,000 in any calendar year.
9.07 Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate of the Borrower or any of its Subsidiaries other
than on terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be reasonably expected to be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided, that the following shall in any event
--------
be permitted: (i) the Transaction; (ii) intercompany transactions among the
Borrower and its Subsidiaries to the extent expressly permitted by Sections
9.02, 9.04, 9.05 and 9.06 shall be permitted; (iii) the payment on the Initial
Borrowing Date of one-time consulting and advisory fees to Apollo in an
aggregate amount not to exceed $2,500,000; (iv) the reimbursement of Apollo for
its reasonable out-of-pocket expenses incurred in connection with performing
management services to the Borrower and its Subsidiaries or in connection with
the Transaction; (v) so long as no Default or Event of Default is then in
existence or would result therefrom, the payment to Apollo of merger advisory
fees for each Permitted Acquisition in an amount not to exceed 1% of the fair
market value of the business or assets acquired pursuant to such Permitted
Acquisition (determined in good faith by senior management of the Borrower);
(vi) the payment of consulting or other fees to the Borrower by any of its
Subsidiaries in the ordinary course of business; (vii) customary fees to non-
officer directors of the Borrower and its Subsidiaries; and (viii) the Borrower
and its Subsidiaries may enter into employment arrangements with respect to the
procurement of services with their respective officers and employees in the
ordinary course of business. In no event shall any management, consulting or
similar fee be paid or payable by the Borrower or any of its Subsidiaries to any
Affiliate or Apollo Group or any of its Affiliates, except as specifically
provided in this Section 9.07.
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
------------------------------------
permit the Consolidated Interest Coverage Ratio for any Test Period ending
during a period specified below to be less than the ratio set forth opposite
such period below:
Period Ratio
------ -----
June 30, 1999 to and including 2.25:1.0
March 31, 2000
June 30, 2000 to and including 2.50:1.0
March 31, 2001
June 30, 2001 to and including 2.75:1.0
March 31, 2002
June 30, 2002 to and including 3.00:1.0
March 31, 2003
June 30, 2003 to and including 3.25:1.0
March 31, 2004
and thereafter 3.25:1.0
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Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 9.08 shall be made on a Pro Forma
--- -----
Basis.
9.09 Adjusted Total Leverage Ratio. The Borrower will not permit the
-----------------------------
Adjusted Total Leverage Ratio at any time during a period set forth below to
exceed the ratio specified opposite such period below:
Period Ratio
------ -----
Initial Borrowing Date to and including 4.00:1.0
March 31, 2000
June 30, 2000 to and including 3.75:1.0
March 31, 2001
June 30, 2001 to and including 3.50:1.0
March 31, 2002
June 30, 2002 to and including 3.25:1.0
March 31, 2003
June 30, 2003 to and including 3.00:1.0
March 31, 2004
and thereafter 3.00:1.0
Notwithstanding anything to the contrary contained above or elsewhere in this
Agreement, all calculations of compliance with this Section 9.09 shall be made
on a Pro Forma Basis.
--- -----
9.10 Capital Expenditures. (a) The Borrower will not, and will not
--------------------
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any fiscal year set forth below, the Borrower and its Subsidiaries may
make Capital Expenditures, so long as the aggregate amount of such Capital
Expenditures does not exceed in any fiscal year set forth below the sum of (x)
the amount set forth opposite such fiscal year below plus (y) for each Acquired
----
Business acquired after the Initial Borrowing Date and prior to the first day of
the respective fiscal year set forth below an amount equal to 1.25% of the
Acquired Revenues of such Acquired Business for the trailing twelve months of
such Acquired Business immediately preceding its acquisition for which financial
statements have been made available to the Borrower and the Banks plus (z) for
each Acquired Business acquired during the respective fiscal year, the amount
for such Acquired Business specified in preceding clause (y) multiplied by a
percentage, the numerator of which is the number of days in the fiscal year
after the date of the respective acquisition and the denominator of which is 365
or 366, as the case may be:
Fiscal Year Ending Amount
----------------------------- ------------
December 31, 1999 $ 20,000,000
December 31, 2000 $ 25,000,000
December 31, 2001 $ 30,000,000
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Fiscal Year Ending Amount
----------------------------- ------------
December 31, 2002 $ 35,000,000
December 31, 2003 $ 40,000,000
December 31, 2004 $ 20,000,000/1/
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year (before giving effect to any
increase in such permitted expenditure amount pursuant to this clause (b)) is
greater than the amount of such Capital Expenditures made by the Borrower and
its Subsidiaries during such fiscal year, such excess (the "Rollover Amount")
may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding fiscal year, provided that in no event shall the Rollover
--------
Amount available to be utilized in the immediately succeeding fiscal year exceed
$10,000,000.
(c) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the insurance proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event to
the extent such insurance proceeds are not required to be applied to repay Term
Loans or reduce the Total Revolving Loan Commitment pursuant to Section 4.02(e)
and so long as such Capital Expenditures are used to replace or restore any
properties or assets in respect of which such proceeds were paid within the time
periods specified by Section 4.02(e).
(d) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the Net Sale Proceeds
of Asset Sales (other than the Net Sale Proceeds from sales or other
dispositions of Janitorial Equipment), to the extent such Net Sale Proceeds are
not required to be applied to repay Term Loans or reduce the Total Revolving
Loan Commitment pursuant to Section 4.02(c) and such proceeds are reinvested as
required by said Section.
(e) Notwithstanding the foregoing, the Borrower and its Wholly-Owned
Domestic Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 9.02(h).
9.11 Designated Senior Debt. The Borrower shall not designate any
----------------------
Indebtedness as "Designated Senior Debt" or "Designated Senior Indebtedness" (as
defined in the Senior Subordinated Notes Indenture, the Convertible Subordinated
Notes Indenture or, on and after the execution and delivery thereof, any
agreement relating to any Permitted Subordinated Indebtedness or Permitted
Subordinated Refinancing Indebtedness, as applicable) other than the
------------------------------
/1/ Such amount has been pro rated to account for the occurrence of the Tranche
--- -----
A Term Loan Maturity Date in April of such fiscal year.
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Obligations and the obligations of the Credit Parties under the other Credit
Documents; provided that the Borrower may designate Indebtedness evidenced by
--------
the Senior Subordinated Notes as Designated Senior Indebtedness under, and as
defined in, the Convertible Subordinated Notes Indenture.
9.12 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
--------------------------------------------------------------------------------
Other Agreements; Issuances of Capital Stock; etc. The Borrower will not, and
--------------------------------------------------
will not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of, any
provision of any Shareholder Subordinated Note, any Senior Subordinated
Notes Document, any Convertible Subordinated Notes Document or, after the
incurrence or issuance thereof, any Qualified Preferred Stock, Disqualified
Preferred Stock, Permitted Subordinated Refinancing Indebtedness, Permitted
Subordinated Indebtedness or Permitted Acquired Debt (to the extent the
aggregate principal amount of such Permitted Acquired Debt equals or
exceeds $1,000,000) or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement, security agreement or
certificate of designation) relating thereto in a manner that could
reasonably be expected to in any way be adverse to the interests of the
Banks;
(ii) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption, repurchase or acquisition for value
of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for
the purpose of paying when due), or any prepayment or redemption as a
result of any asset sale, change of control or similar event of, any Senior
Subordinated Notes, any Convertible Subordinated Notes, any Existing
Indebtedness, any Permitted Subordinated Refinancing Indebtedness or any
Permitted Subordinated Indebtedness (except, in the case of the Senior
Subordinated Notes, through the issuance of Exchange Senior Subordinated
Notes as contemplated in the definition of Senior Subordinated Notes and
consistent with the requirements of the definition of Exchange Senior
Subordinated Notes); provided that, so long as no Default or Event of
--------
Default then exists or would result therefrom, (x) Senior Subordinated
Notes may be refinanced with Permitted Subordinated Refinancing
Indebtedness, (y) the Borrower may repurchase Senior Subordinated Notes on
the open-market in an aggregate principal amount for all purchases made
after the Effective Date pursuant to this clause (y) not to exceed
$25,000,000, so long as the Adjusted Total Leverage Ratio is less than
4.00:1.00 on the last day of the Test Period most recently ended prior to
the consummation of the respective repurchase (as set forth in the
officer's certificate most recently delivered pursuant to Section 8.01(e))
and (z) the Borrower and its Subsidiaries may make payments and prepayments
in connection with Existing Indebtedness; provided further, that the
-------- --------
conversion of Convertible Subordinated Notes into Borrower Common Stock in
accordance with the relevant terms of the Convertible Subordinated Notes
Documents shall not give rise to a violation of this Section 9.12(ii);
(iii) make (or give any notice in respect of) any principal or
interest payment on, or any redemption or acquisition for value of, any
Shareholder Subordinated Note, except to the extent permitted by Section
9.06(ii);
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(iv) make any interest payment on any Convertible Subordinated Notes,
provided that the Borrower may pay regularly accruing interest with respect
--------
to the Convertible Subordinated Notes when and as due (I) through the
issuance of additional Convertible Subordinated Notes, Borrower Common
Stock or Qualified Preferred Stock in accordance with the terms of the
Convertible Subordinated Notes Indenture and (II) in cash, so long as in
the case of this clause (II) (v) no Default or Event of Default then exists
or would result therefrom, (w) such interest payment is permitted under the
relevant provisions of the Senior Subordinated Notes Indenture, (x) in the
case of any such cash interest payment made or to be made after the Initial
Borrowing Date and prior to the second anniversary thereof, the Adjusted
Total Leverage Ratio on the date of such payment (after giving effect on a
Pro Forma Basis, to any Indebtedness incurred (or to be incurred) to make
--- -----
the respective cash interest payment) is less than 2.50:1.0, (y)
calculations are made by the Borrower establishing compliance with Section
9.09 for the Test Period then most recently ended prior to the respective
payment (after giving effect on a Pro Forma Basis to any Indebtedness
--- -----
incurred (or to be incurred) to make the respective cash interest payment)
and (z) at the time of each such interest payment, the Borrower shall have
delivered an officer's certificate to the Administrative Agent certifying
as to compliance with preceding clauses (v) through (y), inclusive,
provided further that in connection with any issuance of additional
-------- -------
Convertible Subordinated Notes permitted as provided in clause (I) of the
immediately preceding proviso, the Borrower may pay cash interest in lieu
of fractional Convertible Subordinated Notes, so long as the aggregate
amount of all such cash interest payments made pursuant to this proviso,
when added to the aggregate amount of all cash paid in lieu of fractional
Borrower Common Stock in connection with a conversion of Convertible
Subordinated Notes as provided in Section 9.06(ix), does not exceed $25,000
in any calendar year; and
(v) amend, modify or change in any way adverse to the interests of the
Banks in any material respect any Tender Offer Document, any Existing
Indebtedness, any Tax Allocation Agreement, any Management Agreement, its
certificate of incorporation (including, without limitation, by the filing
or modification of any certificate of designation other than any
certificates of designation relating to Qualified Preferred Stock or
Disqualified Preferred Stock issued as permitted herein), by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or any agreement
entered into by it, with respect to its capital stock or other equity
interest (including any Shareholders' Agreement), or enter into any new Tax
Allocation Agreement, Management Agreement or agreement with respect to its
capital stock or other equity interest which could reasonably be expected
to be adverse in any material respect to the interests of the Banks or, in
the case of any Management Agreement, which involves the payment by the
Borrower or any of its Subsidiaries of any amount which could give rise to
a violation of this Agreement; provided that the foregoing clause shall not
--------
restrict the ability of the Borrower and its Subsidiaries to amend their
respective certificates of incorporation to authorize the issuance of
capital stock otherwise permitted to be issued pursuant to the terms of
this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will
---------------------------------------
not, and will not permit any of its Subsidiaries to, issue (i) any Preferred
Stock (other than Preferred
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Stock issued pursuant to clauses (c) and (d) below) or any options, warrants or
rights to purchase Preferred Stock or (ii) any redeemable common stock unless,
in either case, the issuance thereof is, and all terms thereof are, satisfactory
to the Required Banks in their sole discretion.
(b) The Borrower shall not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiaries, (iii) to qualify directors
to the extent required by applicable law and (iv) Subsidiaries formed after the
Effective Date pursuant to Section 9.15 may issue capital stock in accordance
with the requirements of Section 9.15. All capital stock issued in accordance
with this Section 9.13(b) shall, to the extent required by the Pledge Agreement,
be delivered to the Collateral Agent for pledge pursuant to the Pledge
Agreement.
(c) The Borrower may issue Disqualified Preferred Stock so long as
(i) no Default or Event of Default then exists or would exist immediately after
giving effect to the respective issuance, (ii) the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Effective Date
pursuant to this Section 9.13(c) shall not exceed, when combined with the
aggregate principal amount of all then outstanding Indebtedness permitted by
Section 9.04(m), $35,000,000, (iii) with respect to each issue of Disqualified
Preferred Stock, the gross cash proceeds therefrom (or in the case of
Disqualified Preferred Stock directly issued as consideration for a Permitted
Acquisition, the fair market value thereof (as determined in good faith by the
Borrower) of the assets received therefor) shall not exceed the liquidation
preference thereof at the time of issuance, (iv) calculations are made by the
Borrower of compliance with the covenants contained in Sections 9.08 and 9.09
for the Calculation Period most recently ended prior to the date of the
respective issuance of Disqualified Preferred Stock, on a Pro Forma Basis after
--- -----
giving effect to the respective issuance of Disqualified Preferred Stock, and
such calculations shall show that such financial covenants would have been
complied with if such issuance of Disqualified Preferred Stock had been
consummated on the first day of the respective Calculation Period, and (v) the
Borrower shall furnish to the Administrative Agent a certificate by an
Authorized Officer of the Borrower certifying to the best of his or her
knowledge as to compliance with the requirements of this Section 9.13(c) and
containing the pro forma calculations required by the preceding clause (iv).
--- -----
(d) The Borrower may issue Qualified Preferred Stock (x) in payment
of regularly accruing dividends on theretofore outstanding shares of Qualified
Preferred Stock as contemplated by Section 9.06(vii), (y) in payment of
regularly accruing interest with respect to the Convertible Subordinated Notes
when and as due in accordance with the terms of the Convertible Subordinated
Notes Indenture and (z) so long as, with respect to each other issue of
Qualified Preferred Stock, the Borrower receives reasonably equivalent
consideration (as determined in good faith by the Borrower).
9.14 Limitation on Certain Restrictions on Subsidiaries. (a) The
--------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
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interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (y) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (z) transfer any of its properties or assets to the Borrower or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the provisions contained in the Existing Indebtedness
Agreements, (iv) the Senior Subordinated Notes Documents, (v) the Convertible
Subordinated Notes Documents, (vi) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of the Borrower or a
Subsidiary of the Borrower, (vii) customary provisions restricting assignment of
any contract entered into by the Borrower or any Subsidiary of the Borrower in
the ordinary course of business, (viii) any agreement or instrument governing
Permitted Acquired Debt, which encumbrance or restriction is not applicable to
any Person or the properties or assets of any Person, other than the Person or
the properties or assets of the Person acquired pursuant to the respective
Permitted Acquisition and so long as the respective encumbrances or restrictions
were not created (or made more restrictive) in connection with or in
anticipation of the respective Permitted Acquisition, (ix) restrictions
applicable to any Joint Venture that is a Subsidiary existing at the time of the
acquisition thereof as a result of an Investment pursuant to Section 9.05 or a
Permitted Acquisition effected in accordance with Section 8.14; provided that
--------
the restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of the Borrower and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition; (x) any
restriction or encumbrance with respect to a Subsidiary imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, so long as
such sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary is permitted under this Agreement; and (xi) the
documentation governing Permitted Debt (other than Permitted Acquired Debt).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly agree to any consensual encumbrance or
restriction on the ability of any Non-Subsidiary Joint Venture to (x) pay
dividends or make other distributions on its capital stock or other interests or
participations in its profits owned by the Borrower or any Subsidiary of the
Borrower or (y) make loans or advances to the Borrower or any Subsidiary of the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of such Non-Subsidiary Joint Venture,
(iv) the Senior Subordinated Note Documents, (v) the Convertible Subordinated
Notes Documents, (vi) customary provisions restricting assignment of any
contract entered into by such Non-Subsidiary Joint Venture in the ordinary
course of business, (vii) normal restrictions (as determined in good faith by
the Borrower) applicable to any Non-Subsidiary Joint Venture at the time of the
establishment thereof (so long as not in connection with a Permitted
Acquisition), (viii) restrictions applicable to any Non-Subsidiary Joint Venture
existing at the time of the acquisition thereof as a result of an Investment
pursuant to Section 9.05 or a Permitted Acquisition effected in accordance with
Section 8.14; provided that the restrictions applicable to the respective Non-
--------
Subsidiary Joint Venture are not made worse, or more burdensome, from the
perspective of the Borrower and its Subsidiaries, than those as in effect
immediately before
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giving effect to the consummation of the respective Investment or Permitted
Acquisition and (ix) the documentation governing Permitted Debt (other than
Permitted Acquired Debt).
9.15 Limitation on the Creation of Subsidiaries and Joint Ventures.
-------------------------------------------------------------
(a) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Initial Borrowing Date any Subsidiary (other than
(x) Joint Ventures permitted to be established in accordance with the
requirements of Section 9.05(l) and (y) a Shell Company, so long as it remains a
Shell Company); provided that the (A) Borrower and its Wholly-Owned Subsidiaries
--------
shall be permitted to establish or create Wholly-Owned Subsidiaries so long as,
in each case, (i) at least 10 days' prior written notice thereof is given to the
Administrative Agent (or such shorter period of time as is acceptable to the
Administrative Agent), (ii) the capital stock or other equity interests of such
new Subsidiary is promptly pledged pursuant to, and to the extent required by,
this Agreement and the Pledge Agreement and the certificates, if any,
representing such stock or other equity interests, together with appropriate
powers duly executed in blank, are delivered to the Collateral Agent, (iii) such
new Subsidiary (other than a Foreign Subsidiary except to the extent otherwise
required pursuant to Section 8.12) promptly executes a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement, and (iv)
to the extent requested by the Administrative Agent or the Required Banks, such
new Subsidiary takes all actions required pursuant to Section 8.11 and (B)
Subsidiaries may be acquired pursuant to Permitted Acquisitions so long as, in
each such case (i) with respect to each Wholly-Owned Subsidiary acquired
pursuant to a Permitted Acquisition, the actions specified in clauses (ii),
(iii) and (iv) of preceding clause (A) shall be taken and (ii) with respect to
each Subsidiary which is not a Wholly-Owned Subsidiary and is acquired pursuant
to a Permitted Acquisition, all capital stock or other equity interests thereof
owned by any Credit Party shall be pledged pursuant to (and to the extent
required by) the Pledge Agreement. In addition, each new Subsidiary that is
required to execute any Credit Document shall execute and deliver, or cause to
be executed and delivered, all other relevant documentation of the type
described in Section 5 as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Initial Borrowing Date.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Joint Ventures, except to the extent permitted
by Section 9.05(l).
SECTION 10. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or
---------------------
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
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10.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Sections 8.01(f)(i), 8.10, 8.13, 8.14 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
10.04 Default Under Other Agreements. (a) The Borrower or any of
------------------------------
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity; or (b) any Indebtedness (other than the Obligations) of the
Borrower or any of its Subsidiaries shall be declared to be due and payable, or
shall be required to be prepaid other than by a regularly scheduled required
prepayment or as a mandatory prepayment (unless such required prepayment or
mandatory prepayment results from a default thereunder or an event of the type
that constitutes an Event of Default), prior to the stated maturity thereof;
provided, that it shall not constitute an Event of Default pursuant to clause
--------
(a) or (b) of this Section 10.04 unless the principal amount of any one issue of
such Indebtedness, or the aggregate amount of all such Indebtedness referred to
in clauses (a) and (b) above, exceeds $4,000,000 at any one time; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
----------------
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Borrower or any of
its Subsidiaries; or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Subsidiaries; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
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10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
-----
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of the Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
within the following 30 days, any Plan which is subject to Title IV of ERISA
shall have had or is likely to have a trustee appointed to administer such Plan,
any Plan which is subject to Title IV of ERISA is, shall have been or is likely
to be terminated or to be the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution required to be
made with respect to a Plan has not been timely made, the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate has incurred or is likely to
incur any liability to or on account of a Plan under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or on account of a group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code, or the Borrower or any Subsidiary of the Borrower has
incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or Plans; (b) there shall result from any such event or
events the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in the
opinion of the Required Banks, has had, or could reasonably be expected to have,
a Material Adverse Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to
------------------
be in full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; or
10.08 Subsidiaries Guaranty. The Subsidiaries Guaranty or any
---------------------
provision thereof shall cease to be in full force and effect, or any Subsidiary
Guarantor or any Person acting by or on behalf of such Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under the
Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
---------
against the Borrower or any of its Subsidiaries involving a liability (to the
extent not paid or not fully covered by insurance) in excess of $4,000,000 for
all such judgments and decrees and all such
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judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 60 days from the entry thereof; or
10.10 Ownership. A Change of Control Event shall have occurred;
---------
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Agent or
any Bank to enforce its claims against any Subsidiary Guarantor or the Borrower,
except as otherwise specifically provided for in this Agreement (provided, that
--------
if an Event of Default specified in Section 10.05 shall occur with respect to
the Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Fees shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of and
any accrued interest in respect of all Loans and all Obligations owing hereunder
(including Unpaid Drawings) to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; (iii) enforce, as
Collateral Agent (or direct the Collateral Agent to enforce), any or all of the
Liens and security interests created pursuant to the Security Documents; (iv)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (v) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified
in Section 10.05, to pay) to the Collateral Agent at the Payment Office such
additional amounts of cash, to be held as security for the Borrower's
reimbursement obligations in respect of Letters of Credit then outstanding,
equal to the aggregate Stated Amount of all Letters of Credit then outstanding;
and (vi) apply any cash collateral as provided in Section 4.02.
SECTION 11. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Business" shall mean any Person or business, division or
product line acquired pursuant to a Permitted Acquisition.
"Acquired Person" shall have the meaning provided in the definition of
Permitted Acquisition.
"Acquired Revenues" shall mean, with respect to any Acquired Business,
the gross revenues of such Acquired Business for the twelve-month period most
recently ended prior to the date of the acquisition of such Acquired Business as
set forth in the financial statements for such Acquired Business delivered to
the Borrower and the Banks in connection with such acquisition.
"Additional Loan Commitment" shall mean any Tranche B Term Loan
Commitment and/or any Additional Revolving Loan Commitment, as the context may
require.
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"Additional Loan Commitment Agreement" shall mean any Additional
Revolving Loan Commitment Agreement and/or any Tranche B Term Loan Commitment
Agreement, as the context may require.
"Additional Loan Commitment Date" shall mean any Tranche B Term Loan
Commitment Date or any Additional Revolving Loan Commitment Date, as the context
may require.
"Additional Loan Commitment Requirements" shall mean, with respect to
any request for an Additional Loan Commitment made pursuant to Section 1.14 or
any provision of an Additional Loan Commitment on any Additional Loan Commitment
Date, the satisfaction of each of the following conditions: (i) no Default or
Event of Default then exists or would result therefrom (for purposes of such
determination, assuming the relevant Loans in an aggregate principal amount
equal to the full amount of Additional Loan Commitments then requested or
provided had been incurred, and the proposed Permitted Acquisition (if any) to
be financed with the proceeds of such Loans had been consummated, on such date
of request or Additional Loan Commitment Date, as the case may be), (ii)
calculations are made by the Borrower demonstrating compliance with the
covenants contained in Sections 9.08 and 9.09 for the Calculation Period most
recently ended prior to the date of the respective request for Additional Loan
Commitments or the relevant Additional Loan Commitment Date, as the case may be,
on a Pro Forma Basis, as if the relevant Loans to be made pursuant to such
--- -----
Additional Loan Commitments (assuming the full utilization thereof) had been
incurred, and the proposed Permitted Acquisition (if any) to be financed with
the proceeds of such Loans (as well as other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred, on the
first day of such Calculation Period, (iii) calculations are made by the
Borrower demonstrating compliance with an Adjusted Senior Leverage Ratio not to
exceed 2.50:1.0 on the last day of the Calculation Period most recently ended
prior to the date of the respective request for Additional Loan Commitments or
the Additional Loan Commitment Date, as the case may be, determined on a Pro
---
Forma Basis as if the relevant Loans to be made pursuant to such Additional Loan
-----
Commitments (assuming the full utilization thereof) had been incurred, and the
respective Permitted Acquisition (if any) to be financed with the proceeds of
such Loans (as well as all other Permitted Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred, on the first day
of such Calculation Period and (iv) the delivery by the Borrower of an officer's
certificate to the Administrative Agent certifying as to compliance with
preceding clauses (i) through (iii) and containing the calculations required by
clause (ii) and (iii).
"Additional Revolving Loan Bank" shall have the meaning provided in
Section 1.14(c).
"Additional Revolving Loan Commitment" shall mean, for each Bank, any
commitment to make Revolving Loans provided by such Bank pursuant to Section
1.14, in such amount as agreed to by such Bank in the respective Revolving Loan
Commitment Agreement; provided that on the Additional Revolving Loan Commitment
--------
Date upon which an Additional Revolving Loan Commitment of any Bank becomes
effective, such Additional Revolving Loan Commitment of such Bank shall be added
to (and thereafter become a part of) the Revolving
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Loan Commitment of such Bank for all purposes of this Agreement as contemplated
by Section 1.14.
"Additional Revolving Loan Commitment Agreement" shall mean a
Revolving Loan Commitment Agreement substantially in the form of Exhibit O-2
(appropriately completed).
"Additional Revolving Loan Commitment Date" shall mean each date upon
which an Additional Revolving Loan Commitment under an Additional Revolving Loan
Commitment Agreement becomes effective as provided in Section 1.14(c)(i).
"Additional Security Documents" shall have the meaning provided in
Section 8.11.
"Adjusted Senior Leverage Ratio" shall mean the Adjusted Total
Leverage Ratio, except that references to "Consolidated Debt" and "Adjusted
Total Leverage Ratio" therein shall instead be references to "Consolidated
Senior Debt" and "Adjusted Senior Leverage Ratio", respectively.
"Adjusted Total Leverage Ratio" shall mean, on any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Adjusted Total Leverage Ratio shall be made on a Pro Forma Basis, with
--- -----
determinations of Adjusted Total Leverage Ratio to give effect to all
adjustments (including, without limitation, those specified in clause (v))
contained in the definition of "Pro Forma Basis" contained herein.
--- -----
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affected Loans" shall have the meaning provided in Section 4.02(h).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person; provided, however, that for purposes of Section 9.07,
-------- -------
an Affiliate of the Borrower shall include any Person that directly or
indirectly owns more than 5% of any class of the capital stock of the Borrower
and any officer or director of the Borrower or any such Person.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"ALC Bank" shall mean any Tranche B Term Loan Bank and/or any
Additional Revolving Loan Bank, as the context may require.
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"Apollo Group" shall mean Boss Investment LLC, a Delaware limited
liability company, and Apollo Advisors, L.P., Apollo Advisors IV, L.P., Apollo
Management, L.P., Apollo Management IV, L.P., Apollo Investment Fund, L.P.,
Apollo Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P., all
Delaware limited partnerships.
"Applicable Margin" initially shall mean a percentage per annum equal
to (i) in the case of Term Loans of either Tranche maintained as (x) Base Rate
Loans, 2.00% and (y) Eurodollar Loans, 3.00%, (ii) in the case of Revolving
Loans maintained as (x) Base Rate Loans, 1.50% and (y) Eurodollar Loans, 2.50%,
(iii) in the case of Swingline Loans, 1.50%, and (iv) in the case of the
Commitment Fee, 0.50%. From and after each day of delivery of any certificate
delivered in accordance with the first sentence of the following paragraph
indicating an entitlement to a different margin than that described in the
immediately preceding sentence (each, a "Start Date") to and including the
applicable End Date described below, the Applicable Margins shall be those set
forth below opposite the Total Leverage Ratio indicated to have been achieved in
any certificate delivered in accordance with the following sentence:
Term Loan Term Loan Revolving Revolving
Eurodollar Base Rate Margin Loan Loan Base
Margin Eurodollar Rate/Swingline Commitment
Total Leverage Ratio Margin Margin Fee
----------- ----------------------
-------------------------------------------------------------------------------------------------------------------
Greater than 2.75:1 3.00% 2.00% 2.50% 1.50% 0.500%
Greater than 2.25:1 but less 2.75% 1.75% 2.25% 1.25% 0.500%
than or equal to 2.75:1
Less than or equal to 2.25:1 2.50% 1.50% 2.00% 1.00% 0.375%.
The Total Leverage Ratio shall be determined based on the delivery of a
certificate of the Borrower (each, a "Quarterly Pricing Certificate") by an
Authorized Officer of the Borrower to the Administrative Agent (with a copy to
be sent by the Administrative Agent to each Bank), within 45 days of the last
day of any fiscal quarter of Borrower, which certificate shall set forth the
calculation of the Total Leverage Ratio as at the last day of the Test Period
ended immediately prior to the relevant Start Date (but determined on a Pro
---
Forma Basis to give effect to any Permitted Acquisition consummated on or prior
-----
to the date of delivery of such certificate) and the Applicable Margins which
shall be thereafter applicable (until same are changed or cease to apply in
accordance with the following sentences); provided that at the time of the
--------
consummation of any Permitted Acquisition, an Authorized Officer of the Borrower
shall deliver to the Administrative Agent a certificate setting forth the
calculation of the Total Leverage Ratio on a Pro Forma Basis as of the last day
--- -----
of the last Calculation Period ended prior to the date on which such Permitted
Acquisition is consummated for which financial statements have been made
available (or were required to be made available) pursuant to Section 8.01(b) or
(c), as the case may be, and the date of such consummation shall be deemed to be
a Start Date and the Applicable Margins which shall be thereafter applicable
(until same are changed or cease to apply in accordance with the following
sentences) shall be based upon the Total Leverage Ratio as so calculated. The
Applicable Margins so determined shall apply, except as set forth in the
succeeding sentence, from the relevant Start Date to the earliest of (x) the
date on which the next certificate is delivered to the Administrative Agent, (y)
the date on which the next Permitted Acquisition is consummated or (z) the date
which is 45 days following the last day of the Test Period in which the previous
Start Date occurred (such earliest date, the "End Date"), at which
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time, if no certificate has been delivered to the Administrative Agent
indicating an entitlement to new Applicable Margins (and thus commencing a new
Start Date), the Applicable Margins shall be those set forth in the first
sentence of this definition (such Applicable Margins as so determined, the
"Highest Applicable Margins"). Notwithstanding anything to the contrary
contained above in this definition, (v) the Applicable Margins shall be the
Highest Applicable Margins at all times during which there shall exist any
Default or Event of Default, (w) at all times prior to the date of delivery of
the financial statements pursuant to Section 8.01(b) for the fiscal quarter
ended September 30, 1999 (the "Initial Test Date"), the Highest Applicable
Margins shall be applicable, (y) if at the time of the delivery of the financial
statements of the Borrower pursuant to Section 8.01(c), the Consolidated EBITDA
(the "Modified Consolidated EBITDA") then required to be utilized in any
determination of the Total Leverage Ratio as at the last day of the Test Period
ended immediately prior to the Start Date commencing on the date of the delivery
of the Quarterly Pricing Certificate then most recently delivered (determined on
a Pro Forma Basis to give effect to any Permitted Acquisition consummated on or
--- -----
prior to (but not after) the date of delivery of such Quarterly Pricing
Certificate) is different from the Consolidated EBITDA (the "Original
Consolidated EBITDA") used in the calculation of the Total Leverage Ratio
contained in the Quarterly Pricing Certificate then last delivered, then (I) the
Borrower shall be required to redeliver on such date of delivery of such
financial statements a replacement officer's certificate for the Quarterly
Pricing Certificate or other officer's certificate then last delivered pursuant
to the first sentence of this paragraph (such certificate to be so replaced, an
"Original Pricing Certificate"), setting forth a recalculation of the Total
Leverage Ratio set forth in such Original Pricing Certificate (determined on the
same basis as provided in such Original Pricing Certificate but modified to give
effect to the difference between the Modified Consolidated EBITDA and the
Original Consolidated EBITDA) and the changed Applicable Margins based on such
recalculation and (II) such date of required delivery of such replacement
certificate shall be deemed to be a Start Date and the Applicable Margins as so
redetermined shall thereafter be applicable (until the same are changed or cease
to apply in accordance with the preceding sentence or clause (z) of this
sentence below), (y) if the Borrower fails to deliver the replacement officer's
certificate as required by preceding clause (x), the date of required delivery
of such officer's certificate pursuant to said clause (x) shall be deemed to be
a Start Date and the Highest Applicable Margins shall thereafter be applicable
(until the same are changed or cease to apply in accordance with the preceding
sentence or succeeding clause (z) of this sentence), and (z) the Applicable
Margin for the Commitment Fee as otherwise determined above shall be increased
by 0.25% at all times after the Initial Test Date for each day that the Total
Unutilized Revolving Loan Commitment exceeds 75% of the sum of (i) the Total
Revolving Loan Commitment then in effect plus (ii) the aggregate outstanding
----
principal amount of the Tranche A Term Loans on such day.
"Applicable Prepayment Percentage" shall mean, at any time, 100%,
provided that if at any time the Adjusted Total Leverage Ratio is less than
--------
3.50:1.00, the Applicable Prepayment Percentage shall instead be 75%.
Notwithstanding the foregoing, at any time a Default or Event of Default is then
in existence, the Applicable Prepayment Percentage shall be 100%.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities
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of another Person, but excluding the sale by such Person of its own capital
stock) of the Borrower or such Subsidiary other than (i) sales, transfers or
other dispositions of inventory made in the ordinary course of business, and
(ii) other sales and dispositions that generate Net Sale Proceeds of less than
$750,000 in the aggregate in any fiscal year of the Borrower.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, and delivering financial information and officer's certificates
pursuant to this Agreement, the chief financial officer, the chief executive
officer, the chief operating officer, the corporate controller, any treasurer or
other financial officer of the Borrower and (ii) any other matter in connection
with this Agreement or any other Credit Document, any officer (or a person or
persons so designated by any two officers) of the Borrower, in each case to the
extent reasonably acceptable to the Administrative Agent.
"Available JV Basket Amount" shall mean, on any date of determination,
an amount equal to the sum of (i) $25,000,000 minus (ii) the aggregate amount of
-----
Investments made (including for such purpose the fair market value of any asset
(other than Borrower Common Stock) contributed to any Joint Venture (as
determined in good faith by senior management of the Borrower), net of
Indebtedness and, without duplication, Capitalized Lease Obligations assigned
to, and assumed by, the respective Joint Venture in connection therewith but
excluding in any event the fair market value of Borrower Common Stock
contributed to any Joint Venture) pursuant to Section 9.05(l) after the
Effective Date, minus (iii) the aggregate amount of Indebtedness or other
-----
obligations (whether absolute, accrued, contingent or otherwise and whether or
not due) of any Joint Venture for which the Borrower or any of its Subsidiaries
(other than the respective Joint Venture) is liable, minus (iv) all payments
-----
made by the Borrower or any of its Subsidiaries (other than the respective Joint
Venture) in respect of Indebtedness or other obligations of the respective Joint
Venture (including, without limitation, payments in respect of obligations
described in preceding clause (iii)) after the Effective Date, plus (v) the
----
amount of any increase to the Available JV Basket Amount made after the
Effective Date in accordance with the provisions of Section 9.05(l). In
connection with the foregoing, it is understood and agreed that the acquisition
of an Acquired Person which has ownership interests in one or more Joint
Ventures, pursuant to a Permitted Acquisition effected in accordance with the
relevant requirements of this Agreement shall not be deemed to constitute an
Investment pursuant to Section 9.05(l) and the Available JV Basket Amount shall
not be reduced as a result of the payment of consideration owing to effect the
Permitted Acquisition (although the Available JV Basket Amount would be affected
to the extent preceding clauses (iii) or (iv) apply with respect to the Joint
Venture so acquired or to the extent additional Investments are made in the
respective Joint Venture pursuant to Section 9.05(l)).
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the wrongful refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03 or (ii) a Bank having
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notified the Administrative Agent and/or the Borrower that it does not intend to
comply with its obligations under Section 1.01(b), 1.01(d) or 2.03 in
circumstances where such non-compliance would constitute a breach of such Bank's
obligations under the respective Section.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Common Stock" shall have the meaning provided in Section
7.13(i).
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from BTCo on a given date and (ii) the borrowing of one Type of Loan
pursuant to a single Tranche by the Borrower from all of the Banks having
Commitments (and/or outstanding Loans) with respect to such Tranche on a pro
---
rata basis on a given date (or resulting from conversions on a given date),
----
having in the case of Eurodollar Loans the same Interest Period; provided, that
--------
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
any related Borrowing of Eurodollar Loans.
"Boss" shall mean Boss Investment LLC, a Delaware limited liability
company formed by affiliates of Apollo Management, L.P.
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"B TL Repayment Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the aggregate
principal amount of all Tranche B Term Loans outstanding at such time and the
denominator of which is equal to the sum of (x) the aggregate principal amount
of all Tranche B Term Loans outstanding at such time plus (y) the Total
----
Revolving Loan Commitment in effect at such time.
"BT Tender Offer Account" shall mean the restricted account of the
Borrower established with BTCo in which the cash (and only the cash) to be
utilized to make payments to the Tender Offer Paying Agent for the purpose of
financing the Common Stock Repurchase is to be deposited on the Initial
Borrowing Date and thereafter paid over to the Tender Offer Paying Agent when
and as required to make payments to the shareholders and optionholders whose
shares are being repurchased pursuant to the Common Stock Repurchase pursuant
to the Tender Offer Documents.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other
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governmental actions to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in U.S. dollar deposits in
the interbank Eurodollar market.
"Calculation Period" shall have the meaning provided in Section 8.14.
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and the amount of all Capitalized Lease Obligations incurred by such Person
during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
--------
United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (ii) time deposits, certificates of
deposit and bankers' acceptances of any Bank or any commercial bank having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, the District of Columbia
or any foreign jurisdiction having capital, surplus and undivided profits
aggregating in excess of $200,000,000 and having a long-term unsecured debt
rating of at least "A" or the equivalent thereof from S&P's or "A2" or the
equivalent thereof from Xxxxx'x, with maturities of not more than six months
from the date of acquisition by such Person, (iii) repurchase agreements with a
term of not more than 30 days, involving securities of the types described in
preceding clause (i), and entered into with commercial banks meeting the
requirements of preceding clause (ii), (iv) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent
thereof by S&P's or at least P-1 or the equivalent thereof by Xxxxx'x and in
each case maturing not more than six months after the date of acquisition by
such Person, (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above and (vi) demand deposit accounts maintained in the ordinary course of
business.
"Change of Control Event" shall mean (a) any "person" or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, as in effect on the Effective Date), other than the Permitted Holders,
shall (A) have acquired, directly or indirectly, beneficial ownership of 30% or
more on a fully diluted basis of the voting and/or economic interest in the
Borrower's capital stock or (B) obtained the power (whether or not exercised) to
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elect a majority of the Borrower's directors or (b) the Board of Directors of
the Borrower shall cease to consist of a majority of Continuing Directors or (c)
a "change of control" or similar event shall occur as provided in the Senior
Subordinated Notes Indenture or in any Existing Indebtedness, Permitted Debt,
Disqualified Preferred Stock or Qualified Preferred Stock, to the extent the
outstanding principal amount or liquidation preference, as the case may be, of
such Existing Indebtedness, Permitted Debt, Disqualified Preferred Stock or
Qualified Preferred Stock exceeds $10,000,000 or (d) a "change of control" or
similar event shall have occurred (and not been waived by the holders of
Convertible Subordinated Notes) under the Convertible Subordinated Notes
Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.11.
"Commitment" shall mean any of the commitments of any Bank, i.e.,
----
whether the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Common Stock Repurchase" shall have the meaning provided in Section
8.19.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of the Borrower and its Subsidiaries as would
be required to be reflected on the liability side of a balance sheet of such
Person in accordance with GAAP as determined on a consolidated basis, (ii) all
Indebtedness of the Borrower and its Subsidiaries of the type described in
clauses (iii) and (vii) of the definition of Indebtedness and (iii) all
Contingent Obligations of the Borrower and its Subsidiaries in respect of
Indebtedness of other Persons (i.e., Persons other than the Borrower or any of
----
its Subsidiaries) of the type referred to in preceding clauses (i) and (ii) of
this definition; provided, that for purposes of this definition, (i) the amount
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of Indebtedness in respect of all outstanding Convertible Subordinated Notes
shall be excluded in any determination of "Consolidated Debt", (ii) the amount
of Indebtedness in respect of the Interest Rate Protection Agreements shall be
at any time the unrealized net loss position, if any, of the Borrower and/or its
Subsidiaries thereunder on a marked-to-market basis determined no more than one
month prior to such time, and (iii) any Disqualified Preferred Stock of the
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Borrower and any Preferred Stock of any of its Subsidiaries shall be treated as
Indebtedness, with an amount equal to the greater of the liquidation preference
or the maximum mandatory fixed repurchase price of any such outstanding
Preferred Stock deemed to be a component of Consolidated Debt.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of the Borrower and its Subsidiaries, determined on a consolidated basis,
before Consolidated Interest Expense and provision for taxes based on income (in
each case to the extent deducted in determining Consolidated Net Income for such
period) and without giving effect to any extraordinary gains or losses to the
extent not related to the continuing operations of the Borrower and its
Subsidiaries or gains or losses from sales of assets other than inventory sold
in the ordinary course of business.
"Consolidated EBITDA" shall mean for any period, Consolidated EBIT,
adjusted by adding thereto (in each case to the extent deducted in determining
Consolidated Net Income for such period and not already added back in
determining Consolidated EBIT) the amount of (i) all amortization and
depreciation and other non-cash items, (ii) any management fees and consulting
fees paid pursuant to, and in accordance with the requirements of, clauses (iii)
and (v) of Section 9.07 during such period and (iii) to the extent Consolidated
EBITDA is being determined for any period that includes all or a portion of the
fiscal year ended December 31, 1999, then to the extent that Consolidated EBITDA
(whether directly or through reductions to Consolidated Net Income) has been
reduced by not more than $7.0 million of relocation and severance costs incurred
during such fiscal year, the amount of such reductions (but in no event to
exceed $7.0 million for such fiscal year).
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Interest Expense (determined after
giving effect to the proviso to the definition thereof) for such period. All
calculations of the Consolidated Interest Coverage Ratio shall be made on a Pro
---
Forma Basis, with determinations of the Consolidated Interest Coverage Ratio to
-----
give effect to all adjustments (including, without limitation, those specified
in clause (v)) provided in the definition of Pro Forma Basis contained herein.
--- -----
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, (i) that portion of Capitalized Lease Obligations of
----
the Borrower and its Subsidiaries representing the interest factor for such
period, and capitalized interest expense, plus (ii) the product of (x) the
----
amount of all cash Dividend requirements (whether or not declared or paid) on
Disqualified Preferred Stock of the Borrower and on any Preferred Stock of any
of its Subsidiaries paid, accrued or scheduled to paid or accrued during such
period multiplied by (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
Federal, state, local and foreign tax rate (expressed as a decimal number
between one and zero) of the Borrower as reflected in the audited consolidated
financial statements of the Borrower for its most recently completed fiscal
year, which amounts described in preceding clause (ii) shall be treated as
interest expense of the Borrower and its Subsidiaries for purposes of this
definition regardless of the treatment of such amounts under GAAP, in each case
net of the total consolidated cash interest income of the Borrower and its
Subsidiaries for such period, but excluding the
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amortization of any deferred financing costs or of any costs in respect of any
Interest Rate Protection Agreement; provided that notwithstanding the foregoing,
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(x) any interest paid on Convertible Subordinated Notes through the issuance of
additional Convertible Subordinated Notes and (y) any one-time accelerated
interest payable in Borrower Common Stock due upon conversion of the Convertible
Subordinated Notes prior to May 1, 2004 in accordance with the terms of the
Convertible Subordinated Notes Indenture shall be excluded from any
determination of Consolidated Interest Expense as used in the denominator of the
Consolidated Interest Coverage Ratio for purposes of any calculation of such
ratio.
"Consolidated Net Income" shall mean, for any period, the net after
tax income (or loss) of the Borrower and its Subsidiaries determined on a
consolidated basis without giving effect to any non-cash expenses incurred or
payments made in connection with the Transaction (including, but not limited to,
fees and expenses incurred in connection with the Transaction and non-cash
charges resulting from the acceleration of outstanding options into Option
Shares on the Initial Borrowing Date); provided that the following items shall
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be excluded in computing Consolidated Net Income (without duplication): (i) the
net income or net losses of any Person in which any Person or Persons other than
the Borrower and its Wholly-Owned Subsidiaries has an equity interest or
interests, to the extent of such equity interests held by Persons other than the
Borrower and its Wholly-Owned Subsidiaries in such Person, (ii) except for
determinations expressly required to be made on a Pro Forma Basis, the net
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income (or loss) of any Person accrued prior to the date it becomes a Wholly-
Owned Subsidiary or all or substantially all of the property or assets of such
Person are acquired by a Wholly-Owned Subsidiary and (iii) the net income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of such net income is not at the time permitted
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Subsidiary.
"Consolidated Senior Debt" shall mean at any time (x) Consolidated
Debt less (y) the sum of (i) the aggregate outstanding principal amount of the
----
Senior Subordinated Notes at such time, (ii) the aggregate principal amount of
all other subordinated debt incurred pursuant to Sections 9.04(j), (l) and (m)
and outstanding at such time and otherwise included in Consolidated Debt and
(iii) the aggregate liquidation preference of all Disqualified Preferred Stock
issued pursuant to Section 9.13(c) and otherwise included in Consolidated Debt.
"Consolidated Subsidiary" shall mean each Subsidiary of the Borrower
the financial results of which are consolidated with those of the Borrower, in
accordance with GAAP, for financial reporting purposes.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the
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owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
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endorsements of instruments for deposit or collection or standard contractual
indemnities entered into, in each case in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the
Effective Date and each other director if (x) such director's nomination for the
election to the Board of Directors of the Borrower is recommended by a majority
of the then Continuing Directors or (y) such director is appointed to the Board
of Directors of the Borrower by Apollo Group or its Affiliates pursuant to the
Investor Rights Agreement.
"Convertible Subordinated Notes" shall mean the Borrower's 7 1/2% pay-
in-kind convertible subordinated notes due April 30, 2012, issued to Boss
pursuant to the Convertible Subordinated Notes Indenture, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Documents" shall mean the Convertible
Subordinated Notes, the Convertible Subordinated Notes Indenture, the Investor
Rights Agreement and all other documents executed and delivered with respect to
the Convertible Subordinated Notes or Convertible Subordinated Notes Indenture,
as in effect on the Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Indenture" shall mean the Indenture,
dated as of April 30, 1999, among the Borrower, the Subsidiary Guarantors and
the Convertible Subordinated Notes Indenture Trustee, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Indenture Trustee" shall mean United
States Trust Company of New York and any successor thereto.
"Credit Documents" shall mean this Agreement, the Notes, the
Subsidiaries Guaranty, each Security Document and each Additional Loan
Commitment Agreement.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
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"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Disqualified Preferred Stock" shall mean any Preferred Stock of the
Borrower other than Qualified Preferred Stock.
"Dividend" shall have the meaning provided in Section 9.06.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Documentation
Agent appointed pursuant to Section 12.10.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Senior Subordinated Notes Documents, (iii) the Convertible Subordinated Notes
Documents, (iv) the Tender Offer Documents, and (v) all other documents,
agreements and instruments executed in connection with the Transaction.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank, mutual
fund, financial institution, a "qualified institutional buyer" (as defined in
Rule 144A of the Securities Act), any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act)
(other than an individual).
"Employee Benefit Plans" shall have the meaning set forth in Section
5.11.
"Employment Agreements" shall have the meaning set forth in Section
5.11.
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by the Borrower or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued to the Borrower or any of its Subsidiaries under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
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"Environmental Law" shall mean any federal, state or local policy,
statute, law, rule, regulation, ordinance, code or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment (for purposes of this definition
(collectively, "Laws")), relating to the environment, or Hazardous Materials or
health and safety to the extent such health and safety issues arise under the
Occupational Safety and Health Act of 1970, as amended, or any such similar
Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotation to first-class banks in the interbank Eurodollar
market by BTCo for U.S. dollar deposits of amounts in same day funds comparable
to the outstanding principal amount of the Eurodollar Loan of BTCo for which an
interest rate is then being determined with maturities comparable to the
Interest Period to be applicable to such Eurodollar Loan, determined as of 10:00
A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Exchange Senior Subordinated Notes" means Senior Subordinated Notes
which are substantially identical securities to the Senior Subordinated Notes
issued on or prior to the Initial Borrowing Date, which Exchange Senior
Subordinated Notes shall be issued pursuant to a registered exchange offer or
private exchange offer for the Senior Subordinated Notes and pursuant to the
Senior Subordinated Notes Indenture. In no event will the issuance of any
Exchange Senior Subordinated Notes increase the aggregate principal amount of
Senior Subordinated Notes then outstanding or otherwise result in an increase in
an interest rate applicable to the Senior Subordinated Notes.
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"Existing Indebtedness" shall have the meaning provided in Section
5.08(d).
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.11.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower other
than a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 13.07(a).
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent Obligations of such Person,
provided that Indebtedness shall not include (x) trade payables and accrued
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expenses, in each case arising in the ordinary
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course of business and (y) contingent purchase price obligations and other
earnout obligations of the Borrower and its Subsidiaries incurred in connection
with Permitted Acquisitions on a basis consistent with past practices of the
Borrower and its Subsidiaries as in effect on the Effective Date, which
obligations are not required to be included as indebtedness on the face of the
Borrower's consolidated balance sheet in accordance with GAAP.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Borrower or any of its
Subsidiaries, including through third-party service providers, and which, in
whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their respective businesses.
"Initial Borrowing Date" shall mean the date upon which the initial
Borrowing of Loans occurs.
"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit M, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period," with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"Investor Rights Agreement" shall mean the Investor Rights Agreement,
dated as of March 22, 1999 and amended as of April 6, 1999, among the Borrower
and BOSS Investment LLC, as in effect on the Effective Date and as the same may
be amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"Janitorial Equipment" shall mean buffers and scrubbers and other
janitorial equipment used by the Building One Services Solution Division of the
Borrower and its Subsidiaries.
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary of the Borrower, (i) in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership) and (ii) which is engaged in a Permitted Business.
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"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation, surety
bonds and other similar statutory obligations and (ii) such other obligations of
the Borrower or any of its Wholly-Owned Subsidiaries as are reasonably
acceptable to the Administrative Agent and the Letter of Credit Issuer and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo and any other Bank which, at
the request of the Borrower and with the consent of the Administrative Agent,
agrees in such Bank's sole discretion to become a Letter of Credit Issuer for
purposes of issuing Letters of Credit pursuant to Section 2. The sole Letter of
Credit Issuer on the Initial Borrowing Date is BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in Section
5.11.
"Management Participants" shall mean certain members of management of
the Borrower previously identified and satisfactory to the Administrative Agent.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(d).
"Margin Regulations" shall mean Regulations T, U and X, collectively.
"Margin Stock" shall have the meaning provided in Regulation U.
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"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, operations, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
"Material Contracts" shall have the meaning provided in Section 5.11.
"Maturity Date", with respect to any Tranche of Loans, shall mean the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Borrower Common Stock (based on (A) in the case of Borrower Common
Stock deemed to be cash consideration pursuant to the proviso to Section
8.14(a), the amount of cash actually paid by the Borrower to purchase shares of
such Borrower Common Stock in reliance on Section 9.06(vi) and (B) in all other
cases, (x) the average closing trading price of the Borrower Common Stock for
the 20 trading days immediately prior to the date of such Permitted Acquisition
on the stock exchange on which the Borrower Common Stock is listed or (y) if the
Borrower Common Stock is not so listed, the good faith determination of the
Administrative Agent and senior management of the Borrower) issued (or to be
issued) as consideration in connection with such Permitted Acquisition
(including, without limitation, Borrower Common Stock which may be required to
be issued as earnout consideration upon the achievement of certain future
performance goals of the respective Acquired Business), (ii) the aggregate
principal amount of Permitted Acquired Debt acquired or assumed by the Borrower
or any of its Subsidiaries in connection with such Permitted Acquisition, (iii)
the aggregate amount of all cash paid (or to be paid) by the Borrower or any of
its Subsidiaries in connection with such Permitted Acquisition (including,
without limitation, payments of fees and costs and expenses in connection
therewith) and all contingent cash purchase price or other earnout obligations
of the Borrower and its Subsidiaries incurred in connection therewith, (iv) the
aggregate principal amount of all other Indebtedness assumed, incurred and/or
issued in connection with such Permitted Acquisition to the extent permitted by
Section 9.04 and (v) the fair market value (determined in good faith by senior
management of the Borrower) of all other consideration payable in connection
with such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $25,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000, (ii) for Term Loans, $5,000,000, and (iii) for Swingline Loans,
$500,000.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to
Section 3.03 or 4.02, as the case may be, the gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received from such
event, net of reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal,
advisory and other fees and expenses associated therewith) received from any
such event.
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"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
which were sold, and (iii) the estimated marginal increase in income taxes which
will be payable by the Borrower's consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; provided, however, that
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such gross proceeds shall not include any portion of such gross cash proceeds
which the Borrower determines in good faith should be reserved for post-closing
adjustments (including indemnification payments) (to the extent the Borrower
delivers to the Banks a certificate signed by its chief financial officer or
treasurer, controller or chief accounting officer as to such determination), it
being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than six months
following the date of the respective asset sale), the amount (if any) by which
the reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by the Borrower and/or
any of its Subsidiaries from such sale, lease, transfer or other disposition.
The parties hereto acknowledge and agree that Net Sale Proceeds shall not
include any trade-in-credits or purchase price reductions received by the
Borrower or any of its Subsidiaries in connection with an exchange of equipment
for replacement equipment that is the functional equivalent of such exchanged
equipment.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Non-Subsidiary Joint Venture" shall mean each Joint Venture which is
not a Subsidiary of the Borrower.
"Non-Wholly Owned Entity" shall have the meaning provided in the
definition of Permitted Acquisition.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note
and each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
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"Option Shares" shall have the meaning provided in Section 5.08(a).
"Original Pricing Certificate" shall have the meaning provided in the
definition of Applicable Margin.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(d).
"Permitted Acquisition" shall mean the acquisition by the Borrower or
any of its Wholly-Owned Domestic Subsidiaries of assets constituting a business,
division or product line of any Person, not already a Subsidiary of the Borrower
or any of its Wholly-Owned Subsidiaries, or of 100% of the capital stock or
other equity interests of any such Person, which Person shall, as a result of
such acquisition, become a Wholly-Owned Domestic Subsidiary of the Borrower or
such Wholly-Owned Domestic Subsidiary, provided that (A) the consideration paid
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by the Borrower or such Domestic Wholly-Owned Subsidiary consists solely of cash
(including proceeds of Revolving Loans), the issuance of the Borrower Common
Stock, the issuance of any Qualified Preferred Stock or Disqualified Preferred
Stock otherwise permitted pursuant to Section 9.13, the issuance of Indebtedness
otherwise permitted in Section 9.04 (including Permitted Subordinated
Indebtedness) and the assumption/acquisition of any Permitted Acquired Debt
(calculated in accordance with GAAP) relating to such business, division,
product line or Person which is permitted to remain outstanding in accordance
with the requirements of Section 9.04, (B) in the case of the acquisition of
100% of the capital stock or other equity interests of any Person, such Person
(the "Acquired Person") shall own no capital stock or other equity interests of
any other Person unless either (x) the Acquired Person owns 100% of the capital
stock or other equity interests of such other Person or (y) if the Acquired
Person owns capital stock or equity interests in any other Person which is not a
Wholly-Owned Subsidiary of the Acquired Person (a "Non-Wholly Owned Entity"),
(1) the Acquired Person shall not have been created or established in
contemplation of, or for purposes of, the respective Permitted Acquisition, (2)
any Non-Wholly Owned Entity of the Acquired Person shall have been non-wholly-
owned prior to the date of the respective Permitted Acquisition and not created
or established in contemplation thereof and (3) such Person and/or its Wholly-
Owned Subsidiaries own 80% of the consolidated assets of such Person and its
Subsidiaries, (C) substantially all of the business, division or product line
acquired pursuant to the respective Permitted Acquisition, or the business of
the Acquired Person and its Subsidiaries taken as a whole, is in the United
States, (D) the assets acquired, or the business of the Acquired Person,
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shall be in a Permitted Business and (E) all applicable requirements of Sections
8.14 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, an acquisition which does not otherwise meet the requirements set
forth above in the definition of "Permitted Acquisition" shall constitute a
Permitted Acquisition if, and to the extent, the Required Banks agree in writing
that such acquisition shall constitute a Permitted Acquisition for purposes of
this Agreement.
"Permitted Acquisition Additional Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-savings
adjustments (in each case not included pursuant to clause (iii) or (iv) of the
definition of Pro Forma Basis contained herein) reasonably anticipated by the
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Borrower to be achieved in connection with such Permitted Acquisition for the 12
month period following the consummation of such Permitted Acquisition, which
cost-savings adjustments shall be estimated on a good faith basis by the
Borrower and, if requested by the Administrative Agent, be verified by a
nationally recognized accounting firm or as otherwise agreed to by the
Administrative Agent.
"Permitted Business" shall mean the facilities service businesses,
including, but not limited to, the electrical contracting, mechanical,
janitorial, and building maintenance business as conducted by the Borrower and
its Subsidiaries on the Effective Date, and any other business or activities as
may be substantially similar, incidental or related thereto, and reasonable
extensions of the foregoing.
"Permitted Debt" shall mean and include Permitted Acquired Debt,
Permitted Subordinated Refinancing Indebtedness and Permitted Subordinated
Indebtedness.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Real Property and found reasonably
acceptable by the Administrative Agent, (ii) as to any particular Real Property
at any time, such easements, encroachments, covenants, rights of way, minor
defects, irregularities or encumbrances on title which could reasonably be
expected to materially impair such Real Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent, (iii)
zoning and other municipal ordinances which are not violated in any material
respect by the existing improvements and the present use made by the mortgagor
thereof of the premises, (iv) general real estate taxes and assessments not yet
delinquent, and (v) such other similar items as the Administrative Agent may
consent to (such consent not to be unreasonably withheld).
"Permitted Holders" shall mean Apollo Group and its Affiliates and the
Management Participants.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Subordinated Indebtedness" shall mean subordinated
Indebtedness of the Borrower incurred in connection with a Permitted Acquisition
and in accordance with Section 8.14 (which subordinated Indebtedness may, at the
option of the Borrower, be convertible into Borrower Common Stock), which
Permitted Subordinated Indebtedness and all terms and conditions thereof
(including, without limitation, the maturity thereof, the interest rate
applicable thereto, amortization, defaults, remedies, voting rights,
subordination provisions,
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conversion provisions, etc.), and the documentation therefor, shall be
reasonably satisfactory to the Administrative Agent, provided that in any event,
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unless the Required Banks otherwise expressly consent in writing prior to the
incurrence thereof, (i) no such Indebtedness shall be guaranteed by any
Subsidiary of the Borrower and (ii) no such Indebtedness shall be secured by any
asset of the Borrower or any of its Subsidiaries. The incurrence of Permitted
Subordinated Indebtedness shall be deemed to be a representation and warranty by
the Borrower that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the Borrower issued or given in exchange for, or the proceeds of
which are used to refinance, the Senior Subordinated Notes so long as (a) such
Indebtedness has a weighted average life to maturity greater than or equal to
the weighted average life to maturity of the Senior Subordinated Notes, (b) such
refinancing does not (i) increase the amount of such Indebtedness outstanding
immediately prior to such refinancing or (ii) add guarantors, obligors or
security from that which applied to the Senior Subordinated Notes, (c) such
Indebtedness has substantially the same (or, from the perspective of the Banks,
more favorable) subordination provisions as applied to the Senior Subordinated
Notes, and (d) all other terms of such refinancing (including, without
limitation, with respect to the amortization schedules, redemption provisions,
maturities, covenants, defaults and remedies), are not, taken as a whole,
materially less favorable to the Borrower than those previously existing with
respect to the Senior Subordinated Notes.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.09(a).
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the Pledge Agreement.
"Post-Closing Period" shall have the meaning provided in Section
8.14(a).
"Preferred Stock", as applied to the capital stock of any Person,
means capital stock of such Person (other than common stock of such Person) of
any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon
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any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of capital stock of any other class of such Person, and shall
include any Qualified Preferred Stock and Disqualified Preferred Stock.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Pro Forma Financial Statements" shall have the meaning provided in
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Section 5.14(a).
"Pro Forma Basis" shall mean, in connection with any calculation of
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compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (w) if the relevant period
to be tested includes any period occurring prior to the Initial Borrowing Date,
the consummation of the Transaction as if same had occurred on the first day of
such period, (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to finance the Transaction,
to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) or Preferred Stock (other than Qualified Preferred Stock of the
Borrower) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred or issued (and the proceeds thereof applied) on
the first day of the relevant Calculation Period, (y) the permanent repayment of
any Indebtedness (other than the revolving Indebtedness, except to the extent
paid with Permitted Debt or Disqualified Preferred Stock) or Preferred Stock
(other than Qualified Preferred Stock of the Borrower) after the first day of
the relevant Calculation Period as if such Indebtedness or Preferred Stock had
been retired or redeemed on the first day of the relevant Calculation Period and
(z) the Permitted Acquisition, if any, then being (or proposed to be)
consummated as well as any other Permitted Acquisition consummated after the
first day of the relevant Calculation Period and on or prior to the date of the
respective Permitted Acquisition then being (or proposed to be) effected, with
the following rules to apply in connection therewith:
(i) all Indebtedness and Preferred Stock (other than Qualified
Preferred Stock of the Borrower) (x) (other than revolving Indebtedness,
except to the extent same is incurred to finance the Transaction, to
refinance other outstanding Indebtedness, or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Permitted Acquisition, to
refinance Indebtedness or otherwise) shall be deemed to have been incurred
or issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date of
determination and (y) (other than revolving Indebtedness except to the
extent paid with Permitted Debt or Disqualified Preferred Stock)
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on the
first day of the respective Calculation Period and remain retired through
the date of determination;
(ii) all Indebtedness or Preferred Stock (other than Qualified
Preferred Stock of the Borrower) assumed to be outstanding pursuant to
preceding clause (i) shall be
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deemed to have borne interest or accrued dividends, as the case may be, at
(x) the rate applicable thereto, in the case of fixed rate Indebtedness or
Preferred Stock or (y) the rates which would have been applicable thereto
during the respective period when same was deemed outstanding, in the case
of floating rate Indebtedness or Preferred Stock (although interest expense
with respect to any Indebtedness or Preferred Stock for periods while same
was actually outstanding during the respective period shall be calculated
using the actual rates applicable thereto while same was actually
outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
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effect shall be given to any Permitted Acquisition consummated after the
first day of the respective period being tested, taking into account, for
any portion of the relevant period being tested occurring prior to the
consummation of such Permitted Acquisition, demonstrable cost savings
actually achieved (or to be achieved) simultaneously with, or within the
one year period following, the closing of the respective Permitted
Acquisition, which cost savings would be permitted to be recognized in pro
---
forma statements prepared in accordance with Regulation S-X under the
-----
Securities Act, as if such cost-savings were realized on the first day of
the relevant period;
(iv) without duplication of adjustments provided above, in case of any
Permitted Acquisition consummated after the first day of the relevant
period being tested, pro forma effect shall be given to the termination or
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replacement of operating leases with Capitalized Lease Obligations or other
Indebtedness, and to any replacement of Capitalized Lease Obligations or
other Indebtedness with operating leases, in each case effected at the time
of the consummation of such Permitted Acquisition or thereafter, in each
case if effected after the first day of the period being tested and prior
to the date the respective determination is being made, as if such
termination or replacement had occurred on the first day of the relevant
period; and
(v) in making any determination of Consolidated EBITDA for purposes of
any calculation of the Adjusted Total Leverage Ratio, the Adjusted Senior
Leverage Ratio or the Consolidated Interest Coverage Ratio only, (x) for
any Permitted Acquisition which occurred during the last two fiscal
quarters comprising the respective Test Period (and, in the case of Section
8.14 or definition of "Additional Loan Commitment Requirements", thereafter
and on or prior to the relevant date of determination), there shall be
added to Consolidated EBITDA the amount of Permitted Acquisition Additional
Cost Savings, determined in accordance with the definition thereof
contained herein, expected to be realized with respect to such Permitted
Acquisition, (y) for any Permitted Acquisition effected in the second
fiscal quarter of the respective Test Period, the Consolidated EBITDA shall
be increased by 50% of the Permitted Acquisition Additional Cost Savings
estimated to arise in connection with the respective Permitted Acquisition
and (z) for any Permitted Acquisition effected in the first fiscal quarter
of the respective Test Period, the Consolidated EBITDA shall be increased
by 25% of the Permitted Acquisition Additional Cost Savings estimated to
arise in connection with the respective Permitted Acquisition; provided
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that the aggregate additions to Consolidated EBITDA, for any period being
tested, pursuant to this clause (v) shall not exceed 15% of the amount
which would have been Consolidated EBITDA in the absence of the adjustment
pursuant to this clause (v).
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Notwithstanding anything to the contrary contained above, (x) for purposes of
Sections 9.08 and 9.09, and for purposes of all determinations of the Applicable
Margins, pro forma effect (as otherwise provided above) shall only be given for
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events or occurrences which occurred during the respective Test Period but not
thereafter and (y) for purposes of Section 8.14 and the definition of
"Additional Loan Commitment Requirements", pro forma effect (as otherwise
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provided above) shall be given for events or occurrences which occurred during
the respective Test Period and thereafter but on or prior to the respective date
of determination.
"Projections" shall have the meaning provided in Section 5.14(b).
"Qualified Preferred Stock" shall mean any Preferred Stock of the
Borrower, the express terms of which shall provide that dividends thereon (other
than dividends payable in the form of Qualified Preferred Stock) shall not be
required to be paid at any time (and to the extent) that such payment would be
prohibited by the terms of this Agreement or any other agreement of the Borrower
relating to outstanding indebtedness and which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or
upon the happening of any event (including any Change of Control Event), cannot
mature (excluding any maturity as the result of an optional redemption by the
issuer thereof) and is not mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, and is not redeemable, or required to be repurchased,
at the sole option of the holder thereof (including, without limitation, upon
the occurrence of a Change of Control Event), in whole or in part, on or prior
to the earlier to occur of (x) the first anniversary of the latest Maturity Date
(determined at the time of respective issuance of Qualified Preferred Stock) and
(y) the repayment in full in cash of all Obligations and the termination of the
Total Commitment and all Letters of Credit.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Quarterly Pricing Certificate" shall have the meaning provided in the
definition of Applicable Margin.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any insurance or condemnation proceeds (other than proceeds from
business interruption insurance) payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of the Borrower or any of its Subsidiaries, (ii) by reason of any
condemnation, taking, seizing or similar event with respect to any properties or
assets of the Borrower or any of its Subsidiaries and (iii) under any policy of
insurance required to be maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentage of outstanding Swingline
Loans and Letter of Credit Outstandings) represent an amount greater than 50% of
the sum of all outstanding Term Loans of Non-Defaulting Banks and the sum of all
Revolving Loan Commitments of all Non-Defaulting Banks (or after the termination
thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting
Banks and the aggregate RL Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Letter of Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, with respect to each RL Bank,
the amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section 10, (y)
adjusted from to time as a result of assignments to or from such Bank pursuant
to Section 1.13 or 13.04(b) or (z) adjusted pursuant to Section 1.14, it being
understood that on each Additional Revolving Loan Commitment Date, the
Additional Revolving Loan Commitment of any Bank becoming effective on such date
shall be added to (and thereafter become all or a part of) the Revolving Loan
Commitment of such Bank for all purposes of this Agreement as contemplated by
Section 1.14.
"Revolving Loan Maturity Date" shall mean April 30, 2004.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
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"RL Bank" shall mean at any time each Bank with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
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any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"RL Reduction Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the Total
Revolving Loan Commitment in effect at such time and the denominator of which is
equal to the sum of (x) the aggregate principal amount of all Tranche B Term
Loans outstanding at such time plus (y) the Total Revolving Loan Commitment in
----
effect at such time.
"Rollover Amount" shall have the meaning provided in Section 9.10.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Scheduled Repayment" shall mean any Tranche A Term Loan Scheduled
Repayment and/or any Tranche B Term Loan Scheduled Repayment.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.09(b).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement,
the Pledge Agreement, each Mortgage and each Additional Security Document, if
any.
"Senior Subordinated Notes" shall mean the Borrower's 10-1/2% Senior
Subordinated Notes due 2009, issued pursuant to the Senior Subordinated Notes
Indenture, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof. As used herein, the term "Senior Subordinated Notes" shall include
any Exchange Senior Subordinated Notes issued pursuant to
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the Senior Subordinated Notes Indenture in exchange for theretofore outstanding
Senior Subordinated Notes, as contemplated by the Offering Memorandum, dated as
of April 23, 1999, and the definition of Exchange Senior Subordinated Notes.
"Senior Subordinated Notes Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Notes Indenture, as in effect on the Effective Date and
as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture" shall mean the Indenture, dated
as of April 30, 1999, among the Borrower, the Subsidiary Guarantors and the
Senior Subordinated Notes Indenture Trustee, as in effect on the Effective Date
and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture Trustee" shall mean IBJ Whitehall
Bank & Trust Company and any successor thereto.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by the Borrower (and not guaranteed or supported in any
way by the Borrower or any of its Subsidiaries) in the form of Exhibit N.
"Shareholders' Agreements" shall have the meaning provided in Section
5.11.
"Shell Company" shall mean, subject to the provisions of Section
8.11(d), any entity established to effect a Permitted Acquisition which has not
yet occurred, so long as the aggregate amount of assets at any time held by all
Shell Companies at any time in existence does not exceed $250,000, it being
understood that at the time of the consummation of the respective Permitted
Acquisition or at such time as the assets of any entity which was a Shell
Company exceed $250,000, such entity shall cease to be a Shell Company.
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.10.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than
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a corporation) in which such Person directly or indirectly through Subsidiaries,
has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean shall mean each Wholly-Owned
Domestic Subsidiary (and, to the extent required by Section 8.12, each Wholly-
Owned Foreign Subsidiary) of the Borrower that is or becomes a party to the
Subsidiaries Guaranty (or any substantially similar form as required by Section
8.12).
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Syndication
Agent appointed pursuant to Section 12.10.
"Syndication Date" shall mean that date upon which the Administrative
Agent determines (and notifies the Borrower and the Banks) that the primary
syndication (and resultant addition of Persons as Banks pursuant to Section
13.04(b)) has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.11.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" have the meaning provided in Section 5.08(a).
"Tender Offer Adjustment Period" shall mean the 15-day period
following the Initial Borrowing Date during which the Borrower shall calculate
the payments to be made to the shareholders and optionholders of the Borrower
Common Stock pursuant to the Common Stock Repurchase (based on their respective
shares tendered pursuant to the Tender Offer) in accordance with the Tender
Offer Documents.
"Tender Offer Documents" shall mean all of the agreements and
documents governing, or relating to, the Tender Offer and the Common Stock
Repurchase.
"Tender Offer Paying Agent" shall mean Xxxxxx Trust and any successor
thereto.
"Term Loans" shall mean and include Tranche A Term Loans and Tranche B
Term Loans.
"Test Period" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period.
Notwithstanding anything to the contrary contained above or in Section 13.07 or
otherwise required by GAAP, in the case of any Test Period ending prior to the
first anniversary of the Initial Borrowing Date, such period shall be a one-year
period ending on the last day of the fiscal quarter last ended, with any
calculations of
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(x) Consolidated Interest Expense required in determining compliance with
Section 9.08 to be made on a pro forma basis in accordance with,
--- -----
and to the extent provided in, the immediately succeeding sentence and (y)
Consolidated EBITDA required in determining compliance with Sections 9.08 and
9.09 to be made on a pro forma basis in accordance with, and to the extent
--- -----
provided in, the second succeeding sentence. To the extent the respective Test
Period (i) includes the third fiscal quarter of the fiscal year ended December
31, 1998, Consolidated Interest Expense for such fiscal quarter shall be deemed
to be $10,158,250 (or, in the event interest due on outstanding Convertible
Subordinated Notes during the last fiscal quarter of the Test Period included in
the respective determination is paid through the issuance of additional
Convertible Subordinated Notes, $8,283,250), (ii) includes the fourth fiscal
quarter of the fiscal year ended December 31, 1998, Consolidated Interest
Expense for such fiscal quarter shall be deemed to be $10,158,250 (or, in the
event interest due on outstanding Convertible Subordinated Notes during the last
fiscal quarter of the Test Period included in the respective determination is
paid through the issuance of additional Convertible Subordinated Notes,
$8,283,250), (iii) includes the first fiscal quarter of the fiscal year ended
December 31, 1999, Consolidated Interest Expense for such fiscal quarter shall
be deemed to be $10,158,250 (or, in the event interest due on outstanding
Convertible Subordinated Notes during the last fiscal quarter of the Test Period
included in the respective determination is paid through the issuance of
additional Convertible Subordinated Notes, $8,283,250) and (iv) includes the
second fiscal quarter for the year ended December 31, 1999, Consolidated
Interest Expense shall be determined by (x) taking actual Consolidated Interest
Expense determined in accordance with the definition thereof for any period
beginning on, and ending after, the Initial Borrowing Date and (y) for each day
of such fiscal quarter occurring prior to the Initial Borrowing Date, using a
per-day Consolidated Interest Expense of $112,869.44 (or, in the event interest
due on outstanding Convertible Subordinated Notes during the last fiscal quarter
of the Test Period included in the respective determination is paid through the
issuance of additional Convertible Subordinated Notes, $92,036.11); provided
--------
that any additional adjustments required by the definition of Pro Forma Basis
--- -----
for occurrences after the Initial Borrowing Date shall also be made. To the
extent the respective Test Period (i) includes the third fiscal quarter of the
fiscal year ended December 31, 1998, Consolidated EBITDA for such fiscal quarter
shall be deemed to be $38,583,000, (ii) includes the fourth fiscal quarter of
the fiscal year ended December 31, 1998, Consolidated EBITDA for such fiscal
quarter shall be deemed to be $36,226,000, (iii) includes the first fiscal
quarter of the fiscal year ended December 31, 1999, Consolidated EBITDA for such
fiscal quarter shall be deemed to be $30,520,000 and (iv) includes the second
fiscal quarter of the fiscal year ended December 31, 1999, Consolidated EBITDA
shall be determined by taking actual Consolidated EBITDA determined in
accordance with the definition thereof for such fiscal quarter (it being
understood that Consolidated EBITDA for such fiscal quarter shall be restated
once the financial results for such fiscal quarter are made available and
reported as provided in Section 8.01(b)); provided that any additional
--------
adjustments required by the definition of Pro Forma Basis for occurrences after
--- -----
the Initial Borrowing Date shall also be made.
"Total Commitment" shall mean the sum of the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment and the Total Revolving
Loan Commitment.
"Total Leverage Ratio" shall mean on any date the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test Period
most recently ended on or prior to
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such date. All calculations of the Total Leverage Ratio shall be made on a Pro
---
Forma Basis, it being understood and agreed that, as provided in the definition
-----
of Pro Forma Basis, the adjustments contained in clause (v) thereof shall not be
--- -----
taken into account in determining the Total Leverage Ratio.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Tranche A Term Loan Commitment" shall mean the sum of the
Tranche A Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean the sum of the
Tranche B Term Loan Commitments of each of the Banks.
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Tranche A Term Loan Commitment" as the same may be
terminated pursuant to Sections 3.03 and/or 10.
"Tranche A Term Loan Maturity Date" shall mean April 30, 2004.
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B Term Loan" shall mean have the meaning provided in Section
1.01(e).
"Tranche B Term Loan Bank" shall have the meaning provided in Section
1.14(b).
"Tranche B Term Loan Commitment" shall mean, for each Bank, any
commitment to make Tranche B Term Loans provided by such Bank pursuant to
Section 1.14, in such amount as agreed to by such Bank in the respective Tranche
B Term Loan Commitment Agreement and as set forth opposite such Bank's name in
Schedule I hereto (as modified in accordance with Section 1.14) directly below
the column entitled "Tranche B Term Loan Commitment" as the same may be
terminated or reduced from time to time pursuant to Sections 3.03 and/or 10.
"Tranche B Term Loan Commitment Agreement" shall mean a Tranche B Term
Loan Commitment Agreement substantially in the form of Exhibit O-1
(appropriately completed).
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"Tranche B Term Loan Commitment Date" shall mean each date upon which
a Tranche B Term Loan Commitment under a Tranche B Term Loan Commitment
Agreement becomes effective as provided in Section 1.14(b)(i).
"Tranche B Term Loan Maturity Date" shall mean April 30, 2004.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche B Term Loan Sub-Facility" shall mean a sub-facility under the
facility evidenced by the Total Tranche B Term Loan Commitment relating to the
Tranche B Term Loan Commitments of one or more Banks extended pursuant to a
given Tranche B Term Loan Commitment Agreement to make a Tranche B Term Loan or
Tranche B Term Loans under such sub-facility.
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
----
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
"Trade Letter of Credit" shall have the meaning set forth in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being four separate Tranches, i.e.,
----
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean, collectively, (i) the Tender Offer, (ii) the
Common Stock Repurchase, (iii) the issuance of the Senior Subordinated Notes,
(iv) the issuance of Convertible Subordinated Notes, (v) the entering into of
the Credit Documents and the incurrence of all Loans on the Initial Borrowing
Date and (vi) the payment of fees and expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
----
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
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"Unutilized Revolving Loan Commitment" with respect to any RL Bank at
any time shall mean such RL Bank's Revolving Loan Commitment at such time less
----
the sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such RL Bank and (ii) such RL Bank's RL Percentage of the total Letter
of Credit Outstandings at such time.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is not a Domestic Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
SECTION 12. The Agents.
----------
12.01 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints BTCo as Administrative Agent of such Bank (for purposes of this Section
12, the term "Administrative Agent" shall mean BTCo in its capacity as
Administrative Agent hereunder and Collateral Agent pursuant to the Security
Documents), Xxxxxxx Xxxxx Credit Partners L.P. as Documentation Agent and
Xxxxxxx Xxxxx Barney, Inc. as Syndication Agent to act as specified herein and
in the other Credit Documents, and each such Bank hereby irrevocably authorizes
the Administrative Agent, the Documentation Agent and the Syndication Agent to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent, the Documentation Agent or
the Syndication Agent, as the case may be, by the terms of this Agreement and
the other Credit Documents, together with such other powers as are
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reasonably incidental thereto. Each of the Administrative Agent, the
Documentation Agent and the Syndication Agent agrees to act as such upon the
express conditions contained in this Section 12. Notwithstanding any provision
to the contrary elsewhere in this Agreement or in any other Credit Document, the
Administrative Agent, the Documentation Agent and the Syndication Agent shall
not have any duties or responsibilities, except those expressly set forth herein
or in the other Credit Documents, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent, the Documentation Agent or the Syndication Agent. The
provisions of this Section 12 are solely for the benefit of the Administrative
Agent, the Documentation Agent and the Syndication Agent and the Banks, and
neither the Borrower nor any of its Subsidiaries shall have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, each of the Administrative Agent, the
Documentation Agent and the Syndication Agent shall act solely as agent of the
Banks and the Administrative Agent, the Documentation Agent and the Syndication
Agent does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower or any of its
Subsidiaries.
12.02 Delegation of Duties. Each of the Administrative Agent, the
--------------------
Documentation Agent and the Syndication Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Administrative Agent, the
Documentation Agent or the Syndication Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.03 Exculpatory Provisions. None of the Administrative Agent, the
----------------------
Documentation Agent or the Syndication Agent nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
in its capacity as Administrative Agent, Documentation Agent or Syndication
Agent, as the case may be, under or in connection with this Agreement or the
other Credit Documents (except for its or such person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by the Borrower,
any of its Subsidiaries or any of their respective officers contained in this
Agreement or the other Credit Documents, any other Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent, the Documentation Agent or the
Syndication Agent under or in connection with, this Agreement or any other
Document or for any failure of the Borrower or any of its Subsidiaries or any of
their respective officers to perform its obligations hereunder or thereunder.
None of the Administrative Agent, the Documentation Agent or the Syndication
Agent shall be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or the other Documents, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries. None
of the Administrative Agent, the Documentation Agent or the Syndication Agent
shall be responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any
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other documents in connection herewith or therewith furnished or made by the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, to the Banks or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, or any Bank or be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or of the existence or possible existence of any
Default or Event of Default.
12.04 Reliance by Agents. The Administrative Agent, the
------------------
Documentation Agent and the Syndication Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower or any of
its Subsidiaries), independent accountants and other experts selected by the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be. Each of the Administrative Agent, the Documentation Agent and the
Syndication Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Banks as it deems appropriate
or it shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent, the Documentation
Agent and the Syndication Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks.
12.05 Notice of Default. None of the Administrative Agent, the
-----------------
Documentation Agent or the Syndication Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, has actually received notice from a Bank or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Administrative
Agent, the Documentation Agent or the Syndication Agent receives such a notice,
the Administrative Agent, the Documentation Agent or the Syndication Agent, as
the case may be, shall give prompt notice thereof to the Banks. The
Administrative Agent, the Documentation Agent or the Syndication Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks; provided, that, unless and until the
--------
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, shall have received such directions, the Administrative Agent, the
Documentation Agent or the Syndication Agent, as the case be, may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
12.06 Nonreliance on Agents and Other Banks. Each Bank expressly
-------------------------------------
acknowledges that none of the Administrative Agent, the Documentation Agent, the
Syndication Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or
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affiliates has made any representations or warranties to it and that no act by
the Administrative Agent, the Documentation Agent or the Syndication Agent
hereinafter taken, including any review of the affairs of the Borrower or any of
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent, the Documentation Agent or the Syndication Agent to
any Bank. Each Bank represents to the Administrative Agent, the Documentation
Agent and the Syndication Agent that it has, independently and without reliance
upon the Administrative Agent, the Documentation Agent or the Syndication Agent
or any other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower or its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent, the Documentation Agent or the Syndication Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower or its Subsidiaries. None of the Administrative
Agent, the Documentation Agent or the Syndication Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and other
condition, prospects or creditworthiness of the Borrower or its Subsidiaries
which may come into the possession of the Administrative Agent, the
Documentation Agent or the Syndication Agent or any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates.
12.07 Indemnification. The Banks agree to indemnify each of the
---------------
Administrative Agent, the Documentation Agent and the Syndication Agent in their
respective capacities as such ratably according to their respective
"percentages" as used in determining the Required Banks at such time or, if the
Commitments have terminated and all Loans have been repaid in full, as
determined immediately prior to such termination and repayment (with such
"percentages" to be determined as if there are no Defaulting Banks), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, in their respective capacities as such in
any way relating to or arising out of this Agreement or any other Credit
Document, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted to be taken by
the Administrative Agent, the Documentation Agent or the Syndication Agent under
or in connection with any of the foregoing, but only to the extent that any of
the foregoing is not paid by the Borrower or any of its Subsidiaries; provided,
--------
that no Bank shall be liable to the Administrative Agent, the Documentation
Agent or the Syndication Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrative Agent, the Documentation Agent or the
Syndication Agent. If any indemnity furnished to the Administrative Agent, the
Documentation Agent or the Syndication Agent for any purpose shall, in the
opinion of the Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, be insufficient or become impaired, the
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Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 12.07 shall survive the payment of all Obligations.
12.08 Agents in their Individual Capacities. Each of the
-------------------------------------
Administrative Agent, the Documentation Agent and the Syndication Agent and
their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower and its Subsidiaries
as though the Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, were not the Administrative Agent, the Documentation
Agent or the Syndication Agent, as the case may be, hereunder. With respect to
the Loans made by it and all Obligations owing to it, each of the Administrative
Agent, the Documentation Agent and the Syndication Agent shall have the same
rights and powers under this Agreement as any Bank and may exercise the same as
though it were not the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, and the terms "Bank" and "Banks" shall
include the Administrative Agent, the Documentation Agent and the Syndication
Agent in their individual capacities.
12.09 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
-------------------------
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 30 Business Days' prior
written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of the Administrative Agent hereunder
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and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Administrative Agent as provided above.
(e) The Syndication Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Syndication Agent, the
Administrative Agent shall assume all of the functions and duties of the
Syndication Agent hereunder and/or under the other Credit Documents.
(f) The Documentation Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Documentation Agent, the
Administrative Agent shall assume all of the functions and duties of the
Documentation Agent hereunder and/or under the other Credit Documents.
SECTION 13. Miscellaneous.
-------------
13.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether
-------------------------
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case, LLP and local counsel) in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto and in connection with the Agents'
syndication efforts with respect to this Agreement; (ii) pay all reasonable out-
of-pocket costs and expenses of each Agent, each Letter of Credit Issuer and
each of the Banks in connection with the enforcement of the Credit Documents and
the documents and instruments referred to therein and, after an Event of Default
shall have occurred and be continuing, the protection of the rights of each
Agent, each Letter of Credit Issuer and each of the Banks thereunder (including,
without limitation, the reasonable fees and disbursements of counsel (including
in-house counsel) for each Agent, for each Letter of Credit Issuer and for each
of the Banks); (iii) pay and hold each of the Banks harmless from and against
any and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iv)
indemnify each Agent, the Collateral Agent, each Letter of Credit Issuer and
each Bank, their respective officers, directors, employees, representatives,
trustees and agents from and hold each of them harmless against any and all
losses, liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Agent, the
Collateral Agent, any Letter of Credit Issuer or any Bank is a party thereto and
whether or not any such investigation, litigation or other proceeding is between
or among any Agent, the Collateral Agent, any Letter of Credit Issuer, any Bank,
any Credit Party or any third Person or otherwise) related to the entering into
and/or performance of this Agreement or any other Document or the use of the
proceeds of any Loans hereunder or the Transaction or the consummation of any
other transactions contemplated in any Document (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by
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reason of the gross negligence or willful misconduct of the Person to be
indemnified), or (b) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface of any
Real Property or any Environmental Claim, in each case, including, without
limitation, the reasonable fees and disbursements of counsel and independent
consultants incurred in connection with any such investigation, litigation or
other proceeding. To the extent that the undertaking to indemnify, pay or hold
harmless any Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each Letter
of Credit Issuer and each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or any of its Subsidiaries or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other Indebtedness at any time held or
owing by such Agent, such Letter of Credit Issuer or such Bank (including,
without limitation, by branches and agencies of the such Agent, such Letter of
Credit Issuer and such Bank wherever located) to or for the credit or the
account of the Borrower or any of its Subsidiaries against and on account of the
Obligations of the Borrower or any of its Subsidiaries to such Agent, such
Letter of Credit Issuer or such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations of the Borrower or any of its Subsidiaries purchased by such Bank
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Agent, such Letter of Credit Issuer or such
Bank shall have made any demand hereunder and although said Obligations shall be
contingent or unmatured.
13.03 Notices. (a) Except as otherwise expressly provided herein,
-------
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Schedule II; or, at such other address as shall be designated
by any party in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed, telecopied or cabled
or sent by overnight courier, and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
any Letter of Credit Issuer (in the case of the issuance of a Letter of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent or BTCo or any Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, BTCo's or such
Letter of Credit Issuer's record of the terms of such telephonic notice.
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13.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, the Borrower may not
-------- -------
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of the Banks and,
provided further, that, although any Bank may transfer, assign or grant
----------------
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments or Loans hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
----------------
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment or of a
mandatory repayment of Loans shall not constitute a change in the terms of such
participation, that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i)), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the
Security Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder), its outstanding
Tranche A Term Loans and/or its outstanding Tranche B Term Loans under a given
Tranche B Term Loan Sub-Facility to (i) its parent company and/or any affiliate
of such Bank which is at least 50% owned by such Bank or its parent company or
to one or more Banks or (ii) in the case of any Bank that is a fund that invests
in bank loans, any other fund that invests in bank loans and is managed by the
same investment advisor of such Bank or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments (and related outstanding Obligations hereunder) and
outstanding principal amount of Tranche A Term Loans and/or Tranche B Term
Loans under a given Tranche B Term Loan Sub-Facility to one or more Eligible
Transferees (treating (x) any fund that invests in bank loans and (y) any other
fund that invests in bank loans and is managed by the same investment advisor as
such fund or by an Affiliate of such investment advisor, as a single Eligible
Transferee), each of which assignees shall become a
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party to this Agreement as a Bank by execution of an Assignment and Assumption
Agreement, provided that (i) at such time Schedule I shall be deemed modified to
--------
reflect the Commitments, outstanding Tranche A Term Loans and/or outstanding
Tranche B Term Loans under a given Tranche B Term Loan Sub-Facility, as the case
may be, of such new Bank and of the existing Banks, (ii) upon surrender of the
old Notes (or the furnishing of a standard indemnity letter from the respective
assigning Bank in respect of any lost Notes), new Notes will be issued, at the
Borrower's expense, to such new Bank and to the assigning Bank, such new Notes
to be in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments,
outstanding Tranche A Term Loans and/or outstanding Tranche B Term Loans under a
given Tranche B Term Loan Sub-Facility, as the case may be, (iii) the consent of
the Administrative Agent and, so long as no Default or Event of Default is then
in existence, the Borrower shall be required in connection with any assignment
to an Eligible Transferee pursuant to clause (y) of this Section 13.04(b) (which
consent, in each case, shall not be unreasonably withheld or delayed), (iv) the
consent of each Letter of Credit Issuer shall be required in connection with any
assignment of Revolving Loan Commitments pursuant to clause (y) of this Section
13.04(b) (which consent shall not be unreasonably withheld or delayed) and (v)
the Administrative Agent shall receive at the time of each assignment, from the
assigning or assignee Bank, the payment of a non-refundable assignment fee of
$3,500 and, provided further, that such transfer or assignment will not be
----------------
effective until recorded by the Administrative Agent on the Register pursuant to
Section 13.17. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Commitments, outstanding Tranche A Term Loans and/or
outstanding Tranche B Term Loans under a given Tranche B Term Loan Sub-Facility,
as the case may be. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitment and outstanding Obligations pursuant to Section
1.13 or this Section 13.04(b) would, due to circumstances existing at the time
of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or
4.04 from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Revolving Loan Commitment, if any
Revolving Loans or Letters of Credit remain outstanding, assignments may be made
as provided above, except that the respective assignment shall be of a portion
of the outstanding Revolving Loans of the respective RL Bank and its
participation in Letters of Credit and its obligation to make Mandatory
Borrowings, although any such assignment effected after the termination of the
Total Revolving Loan Commitment shall not release the assigning RL Bank from its
obligations as a Participant with respect to outstanding Letters of Credit or to
fund its share of any Mandatory Borrowing (although the respective assignee may
agree, as between itself and the respective assigning RL Bank, that it shall be
responsible for such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Bank or
BTCo from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings
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made by such Bank from such Federal Reserve Bank and, with the consent of the
Administrative Agent, any Bank which is a fund may pledge all or any portion of
its Notes or Loans to its trustee in support of its obligations to its trustee.
No pledge pursuant to this clause (c) shall release the transferor Bank from any
of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of any Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and any Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agents or the Banks to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its pro rata share
--- ----
of such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided, that if
--------
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks); provided, that except as otherwise
--------
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specifically provided herein, all computations determining compliance with
Sections 4.02, 8.14 and 9, including definitions used therein shall, in each
case, utilize accounting principles and policies in effect at the time of the
preparation of, and in conformity with those used to prepare, the December 31,
1998 financial statements of the Borrower delivered to the Banks pursuant to
Section 7.10(b); provided further, that (i) to the extent expressly required
-------- -------
pursuant to the provisions of this Agreement, certain calculations shall be made
on a Pro Forma Basis, and (ii) to the extent compliance with any of Sections
--- -----
9.08 or 9.09 would include periods occurring prior to the Initial Borrowing
Date, such calculation shall be adjusted on a Pro Forma Basis to give effect to
--- -----
the Transaction as if same had occurred on the first day of the respective
period.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
------------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably designates, appoints and empowers CT Corporation
System, with offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, the Borrower agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Administrative Agent under this
Agreement. The Borrower hereby further irrevocably waives any claim that any
such courts lack jurisdiction over the Borrower, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or any
other Credit Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over the Borrower. The Borrower further irrevocably
consents to the service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower, at its address for notices pursuant to Section 13.03, such service
to become effective 30 days after such mailing. The Borrower hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of any Agent, the
Collateral Agent, any Bank or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or
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claim in any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
13.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent and each of the Banks shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same (including by way of facsimile transmission) to
the Administrative Agent at the Notice Office or at the office of Agents'
counsel. The Administrative Agent will give the Borrower and each Bank prompt
written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
-------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Bank (with Obligations being directly
affected thereby in the case of the following clause (i)), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or reduce the principal
amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i), notwithstanding the
fact that such amendment or modification actually results in such a reduction,
provided that such amendment or modification was not made for the purpose of
--------
reducing the interest rate or Fees hereunder, (ii) release all or substantially
all of the Collateral (except as expressly provided in the Security Documents)
under all the Security Documents, (iii) amend, modify or waive any provision of
this Section 13.12 (except for technical amendments with respect to additional
extensions of credit pursuant to this Agreement which afford the protections to
such additional extensions of credit of the type provided to the Tranche A Term
Loans and the Revolving Loan Commitments on the Effective Date), (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Tranche A Term Loans
and Revolving Loan Commitments are included on the Effective Date), (v) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (vi) amend or modify Section 13.06(a);
provided further, that no such change, waiver, discharge or termination shall
----------------
(v) increase the Commitments of any Bank over the amount thereof then in effect
without the
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consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Bank, and that an increase in the available portion of any
Commitment of any Bank shall not constitute an increase in the Commitment of
such Bank), (w) without the consent of each Letter of Issuer, amend, modify or
waive any provision of Section 2 or alter its rights or obligations with respect
to Letters of Credit, (x) without the consent of BTCo, alter its rights or
obligations with respect to Swingline Loans, (y) without the consent of the
Administrative Agent, the Documentation Agent or the Syndication Agent, amend,
modify or waive any provision of Section 12 as same applies to the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, or any other provision as same relates to the rights or obligations
of the Administrative Agent, the Documentation Agent or the Syndication Agent,
as the case may be, and (z) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks (or, at the option
of the Borrower if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
Revolving Loan Commitments and/or Loans of the respective non-consenting Bank
which gave rise to the need to obtain such Bank's individual consent) with one
or more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Revolving Loan Commitment (if such Bank's consent is required as a result of its
Revolving Loan Commitment) and/or repay each Tranche of outstanding Loans of
such Bank which gave rise to the need to obtain such Bank's consent and/or cash
collateralize its applicable RL Percentage of the Letter of Credit of
Outstandings, in accordance with Sections 3.02(b) and/or 4.01(b), provided that,
--------
unless the Commitments which are terminated and Loans which are repaid pursuant
to preceding clause (B) are immediately replaced in full at such time through
the addition of new Banks or the increase of the Commitments and/or outstanding
Loans of existing Banks (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B), the Required
Banks (determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that the Borrower shall not have the right to
----------------
replace a Bank, terminate its Commitment or repay its Loans solely as a result
of the exercise of such Bank's rights (and the withholding of any required
consent by such Bank) pursuant to the second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clause (a)
above of this Section 13.12, the Borrower, the Administrative Agent and each ALC
Bank may, in accordance with the provisions of Section 1.14, enter into an
Additional Loan Commitment Agreement, provided that after the execution and
--------
delivery by the Borrower, the Administrative Agent and each such ALC Bank of
such Additional Loan Commitment Agreement, such
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Additional Loan Commitment Agreement may thereafter only be modified in
accordance with the requirements of clause (a) above of this Section 13.12.
13.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.07 and 13.01, shall, subject
to the provisions of Section 13.18 (to the extent applicable), survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
13.14 Domicile of Loans and Commitments. Each Bank may transfer and
---------------------------------
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Bank; provided, that the Borrower shall
--------
not be responsible for costs arising under Section 1.10, 1.11, 2.05 or 4.04
resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such costs would not otherwise be applicable to such Bank in
the absence of such transfer.
13.15 Confidentiality. (a) Each of the Banks agrees that it will
---------------
use its reasonable efforts not to disclose without the prior consent of the
Borrower (other than to its directors, employees, auditors, counsel or other
professional advisors, to affiliates or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information) any information with respect to
the Borrower or any of its Subsidiaries which is furnished pursuant to this
Agreement; provided, that any Bank may disclose any such information (a) as has
--------
become generally available to the public, (b) as may be required or appropriate
(x) in any report, statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have jurisdiction over such Bank
or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors or (y) in connection with any request or requirement of any such
regulatory body, (c) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (d) to comply with any
law, order, regulation or ruling applicable to such Bank, and (e) to any
prospective transferee in connection with any contemplated transfer of any of
the Notes or any interest therein by such Bank; provided, that such prospective
--------
transferee agrees to be bound by this Section 13.15 to the same extent as such
Bank.
(b) The Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates or its investment advisors any information
related to the Borrower or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
such entities), provided that such Persons shall be subject to the provisions of
--------
this Section 13.15 to the same extent as such Bank.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrower hereby designates the Administrative
--------
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register
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(the "Register") on which it will record the Commitments from time to time of
each of the Banks, the Loans made by each of the Banks and each repayment in
respect of the principal amount of the Loans of each Bank. Failure to make any
such recordation, or any error in such recordation, shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of any Commitment of such Bank and the rights to the principal of, and
interest on, any Loan shall not be effective until such transfer is recorded on
the Register maintained by the Administrative Agent with respect to ownership of
such Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitment and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Bank shall surrender the
Note evidencing such Commitment and/or Loan, and thereupon one or more new Notes
in the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank at the request of any such Bank. The
registration of any provision of Additional Loan Commitments pursuant to Section
1.14 shall be recorded by the Administrative Agent on the Register only upon the
acceptance of the Administrative Agent of a properly executed and delivered
Additional Loan Commitment Agreement. Coincident with the delivery of such
Additional Loan Commitment Agreement for acceptance and registration of the
provision of an Additional Loan Commitment, or as soon thereafter as
practicable, new Notes shall be issued to the respective ALC Bank at the request
of such ALC Bank. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17.
13.18 Limitation on Additional Amounts, etc. Notwithstanding
--------------------------------------
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under such Section within six months after the later of (x) the
date the Bank incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Bank has actual knowledge of its incurrence of the
respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such Bank
shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are incurred or
suffered on or after the date which occurs six months prior to such Bank giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.18 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.19 Certain Agreements with Respect to the Convertible Subordinated
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Notes. The Borrower hereby (A) represents and warrants that (i) $193,000000 of
-----
Tranche A Term Loans, Revolving Loans, Swingline Loans and Letters of Credit in
the aggregate incurred
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pursuant to the Total Commitment as in effect on the Initial Borrowing Date may
be incurred under this Agreement on the Initial Borrowing Date in reliance on
the exception in clause (x) of Section 1007 of the Convertible Subordinated
Notes Indenture and clause (ii) of the definition of "Permitted Indebtedness"
contained in the Senior Subordinated Notes Indenture as same is used in Section
4.04 thereof and (B) agrees it will not take any position contrary to the
representations and warranties set forth in preceding clause (A). In addition,
the Borrower (A) acknowledges and agrees that it will not be permitted to (i)
incur any Tranche B Term Loans on any Tranche B Term Loan Commitment Date unless
such Tranche B Term Loans may be incurred in reliance on the exceptions
contained in Section 1007 of the Convertible Subordinated Notes Indenture and
the proviso to Section 4.04 of the Senior Subordinated Notes Indenture and/or
clause (ii) (or the other relevant clauses) of the definition of "Permitted
Indebtedness" contained in the Senior Subordinated Notes Indenture or (ii) incur
any Revolving Loans pursuant to any provision of Additional Revolving Loan
Commitments pursuant to Section 1.14 unless such additional extensions of credit
are permitted to be incurred in reliance on the exceptions contained in Section
1007 of the Convertible Subordinated Notes Indenture and the proviso to Section
4.04 of the Senior Subordinated Notes Indenture and/or clause (ii) (or the other
relevant clauses) of the definition of "Permitted Indebtedness" contained in the
Senior Subordinated Notes Indenture and (B) covenants and agrees that it will
take, and will cause each of its Subsidiaries to take, all such actions as may
be necessary so as to ensure that all Indebtedness of the Borrower (including,
without limitation, any Tranche B Term Loans incurred on any Tranche B Term Loan
Commitment Date and any Revolving Loans incurred as a result of any provision of
Additional Revolving Loan Commitments pursuant to Section 1.14) incurred under
this Agreement and the other Credit Documents shall always be permitted to be
incurred under Section 1007 of the Convertible Subordinated Notes Indenture and
Section 4.04 of the Senior Subordinated Notes Indenture.
13.20 Post-Closing Actions. Notwithstanding anything to the contrary
--------------------
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Security Document Filings. Form UCC-1 financing statements
-------------------------
delivered by the Borrower to the Collateral Agent on the Initial Borrowing
Date shall be filed in the appropriate governmental office within 10 days
following the Initial Borrowing Date.
(b) UCC-3 Termination Statements. Within 30 days following the
----------------------------
Initial Borrowing Date (or such later date as shall have been determined by
the Administrative Agent in its sole discretion), the Administrative Agent
shall have received Form UCC-3 termination statements in respect of the
Liens listed on Part B of Schedule IX hereto and same shall be filed in the
appropriate governmental office within 45 days following the Initial
Borrowing Date (or such later date as shall have been determined by the
Administrative Agent in its sole discretion).
(c) Opinions of Local Counsel. Within 30 days following the Initial
-------------------------
Borrowing Date, the Collateral Agent shall have received local counsel
opinions, addressed to each Agent, the Collateral Agent and each of the
Banks from local counsel to Credit Parties and/or the Agents reasonably
satisfactory to the Collateral Agent, which opinions (x) shall cover the
perfection and enforceability as against third parties of the security
interests granted pursuant to the Security Documents and such other matters
relating to
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the transactions contemplated herein as the Collateral Agent may reasonably
request and (y) shall be in form and substance reasonably satisfactory to
the Collateral Agent.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
--------
would not be true because the foregoing actions were not taken on the Initial
Borrowing Date the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 13.20 and (y) all representations and warranties
relating to the Collateral Documents shall be required to be true immediately
after the actions required to be taken by Section 13.20 have been taken (or were
required to be taken). The acceptance of the benefits of the Loans shall
constitute a representation, warranty and covenant by the Borrower to each of
the Banks that the actions required pursuant to this Section 13.20 will be, or
have been, taken within the relevant time periods referred to in this Section
13.20 and that, at such time, all representations and warranties contained in
this Credit Agreement and the other Credit Documents shall then be true and
correct without any modification pursuant to this Section 13.20. The parties
hereto acknowledge and agree that the failure to take any of the actions
required above, within the relevant time periods required above, shall give rise
to an immediate Event of Default pursuant to this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
-------
000 Xxxxxxxxxxx Xxxxxx, XX BUILDING ONE SERVICES CORP.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone No.: By:______________________________
Facsimile No.: Title:
Attention: Xxx Xxxxxxx
and Xxx Xxxx
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By:______________________________
Title:
00 Xxxxx Xxxxxx XXXXXXX XXXXX CREDIT
Xxx Xxxx, XX 00000 PARTNERS L.P., Individually
Telephone No.: (000) 000-0000 and as Documentation Agent
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
By:______________________________
Title:
000 Xxxxxxxxx Xxxxxx XXXXXXX XXXXX XXXXXX INC., as
Xxx Xxxx, XX 00000 Syndication Agent
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 By:______________________________
Attention: Xxxxx Xxxxxxxx Title:
000 Xxxx Xxxxxx XXXXXXXX XXX, INC.
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxx By:______________________________
Title:
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BANKBOSTON, N.A.
By:
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By:
---------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
---------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
---------------------------------
Name:
Title:
-000-
XXX XXXX SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:
---------------------------------
Name:
Title:
ORIX CREDIT ALLIANCE, INC.
By:
---------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By:
---------------------------------
Name:
Title:
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