Exhibit 10.76
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of September 19, 2002 (as amended, this
"Agreement") among Headwaters Incorporated, a Delaware corporation (the
"Borrower"), each of the parties listed on Schedule II hereto as Subsidiary
Guarantors (the "Subsidiary Guarantors") the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "Initial Lenders"), General Electric Capital Corporation, a
Delaware corporation, as the Initial Issuing Bank (the "Initial Issuing Bank")
and Xxxxxx Xxxxxxx Senior Funding, Inc., a Delaware corporation ("Xxxxxx
Xxxxxxx"), as the Initial Swing Line Bank (the "Initial Swing Line Bank" and,
together with the Initial Lenders and the Initial Issuing Bank, the "Initial
Lender Parties"), General Electric Capital Corporation, a Delaware corporation,
as collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "Collateral Agent") for the Secured Parties (as
hereinafter defined) and General Electric Capital Corporation, a Delaware
corporation, as administrative agent (together with any successor administrative
agent appointed pursuant to Article VIII, the "Administrative Agent" and,
together with the Collateral Agent, the "Agents") for the Lender Parties (as
hereinafter defined) and Xxxxxx Xxxxxxx, as Lead Arranger and Sole Book-Runner.
PRELIMINARY STATEMENTS:
(1) Pursuant to the Merger Agreement dated as of July 15, 2002 (as
amended (as defined in Section 1.02), to the extent permitted under the Loan
Documents (as hereinafter defined), the "Merger Agreement"), as the date hereof
and as otherwise amended, among the Borrower, Headwaters Olysub Corporation, a
Delaware corporation (the "Sub"), Industrial Services Group, Inc., a Delaware
corporation (the "Company"), and ISG Resources, Inc., a Utah corporation (the
"Public Sub"), the Company will merge with and into the Sub and the Sub will be
the surviving corporation (the "Merger").
(2) The Borrower has requested that, simultaneously with the
consummation of the Merger, the Lender Parties lend to the Borrower up to
$175,000,000 to pay to the holders of the Company Stock (as hereinafter defined)
the cash consideration for their shares in the Merger, pay transaction fees and
expenses, refinance certain Existing Debt (as hereinafter defined) of the
Company and that, from time to time, the Lender Parties lend to the Borrower to
provide working capital and finance general corporate purposes for the Borrower
and its Subsidiaries. The Lender Parties have indicated their willingness to
agree to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent as the
Administrative Agent shall specify in writing to the Lender Parties.
"Advance" means a Term B Advance, a Revolving Credit Advance,
a Swing Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise; provided, however, that none of the Agents or the Lender
Parties shall be or be deemed an affiliate of any of the Loan Parties
or any of their Affiliates solely as a result of being an Agent or
Lender Party hereunder.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
"Agreement" has the meaning specified in the preamble to this
Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to
the Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "Master
Agreement"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the
sole "Affected Party", and (iii) the Administrative Agent was the sole
party determining such payment amount (with the Administrative Agent
making such determination pursuant to the provisions of the form of
Master Agreement); (b) in the case of a Hedge Agreement traded on an
exchange, the xxxx-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party to such Hedge Agreement determined by the
Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the
xxxx-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to
be received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings set forth in the above
described Master Agreement.
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"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Applicable Margin" means (a) in respect of the Revolving
Credit Facility, (a) for the first six months following the Closing
Date, 3.25% per annum for Base Rate Advances and 4.25% per annum for
Eurodollar Rate Advances and (b) thereafter, the applicable percentage
determined in accordance with the pricing grid set forth below:
======================================== ======================= ==========================
Base Rate Eurodollar
Total Leverage Ratio Applicable Margin Applicable Margin
======================================== ======================= ==========================
Less than 2.0 2.50% 3.50%
---------------------------------------- ----------------------- --------------------------
Less than 2.5 but =or greater than 2.0 3.00% 4.00%
---------------------------------------- ----------------------- --------------------------
Greater than 2.5 3.25% 4.25%
======================================== ======================= ==========================
and (b) in respect of the Term B Facility, 3.25% per annum for Base
Rate Advances and 4.25% annum for Eurodollar Rate Advances.
The Applicable Margin in respect of the Revolving Credit Facility for
each Base Rate Advance shall (except as otherwise provided in clause
(a) of the immediately preceding sentence of this definition) be
determined by reference to the Total Leverage Ratio in effect from time
to time and the Applicable Margin for each Eurodollar Rate Advance
shall be determined by reference to the Total Leverage Ratio in effect
on the first day of each Interest Period for such Advance; provided,
however, that no change in the Applicable Margin shall be effective
until three Business Days after the date on which the Administrative
Agent receives the financial statements required to be delivered
pursuant to Section 5.03(b) or (c), as the case may be, and a
certificate of the Chief Financial Officer of the Borrower
demonstrating such Total Leverage Ratio.
"Appropriate Lender" means, at any time, with respect to (a)
either of the Term B Facility or the Revolving Credit Facility, a
Lender that has a Commitment with respect to such Facility at such
time, (b) the Letter of Credit Facility, (i) the Issuing Bank and (ii)
if the other Revolving Credit Lenders have made Letter of Credit
Advances pursuant to Section 2.16(c) that are outstanding at such time,
each such other Revolving Credit Advance Lender and (c) the Swing Line
Facility, (i) the Swing Line Bank and (ii) if the other Revolving
Credit Lenders have made Swing Line Advances pursuant to Section
2.02(b) that are outstanding at such time, each such other Revolving
Credit Lender.
"Approved Fund" means any Fund that is administered or managed
by (i) a Lender Party, (ii) an Affiliate of a Lender Party or (iii) an
entity or an Affiliate of an entity that administers or manages a
Lender Party.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent and the Borrower (to the extent required),
in accordance with Section 9.07 and in substantially the form of
Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Bankruptcy Law" means any proceeding of the type referred to
in Section 6.01(f) or Title II, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced by the
Administrative Agent, from time to time, as its base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower as the Borrower shall specify in writing to
the Administrative Agent.
"Borrowing" means a Term B Borrowing, a Revolving Credit
Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings in dollar deposits are carried on in the London
interbank market.
"Capital Expenditures" means, for any Person for any period,
the sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade in of
existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the excess of (i) the gross
amount of such purchase price over (ii) the credit granted by the
seller of such equipment for the equipment being traded in at such time
or the amount of such proceeds, as the case may be.
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"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 360 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System which issues (or
the parent of which issues) commercial paper rated as described in
clause (c) below, is organized under the laws of the United States or
any State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than
$1,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-2" (or the then equivalent grade) by Xxxxx'x
Investors Service, Inc. or "A-2" (or the then equivalent grade) by
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. or (d)
Investments, classified in accordance with GAAP as Current Assets of
the Borrower or any of its Subsidiaries, in money market investment
programs registered under the Investment Company Act of 1940, as
amended, which are administered by financial institutions that have the
highest rating obtainable from either Moody's or S&P, and the
portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of this
definition.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time
(42 U.S.C. ss. 9601 et seq.).
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CFC" means an entity that is a controlled foreign corporation
under Section 957 of the Internal Revenue Code.
"Change of Control" means the occurrence of any of the
following: (a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of
the Borrower (or other securities convertible into such Voting
Interests) representing 35% or more of the combined voting power of all
Voting Interests of the Borrower; or (b) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were
Continuing Directors of the Borrower shall cease for any reason to
constitute a majority of the board of directors of the Borrower; or (c)
any Person or two or more Persons acting in concert shall have acquired
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by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or (d) any "Change of Control" or comparable event under or in
connection with any Subordinated Debt.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Mortgages, the Control Agreements, each of the collateral documents,
instruments and agreements delivered pursuant to Section 5.01(j), and
each other agreement that creates or purports to create a Lien in favor
of the Collateral Agent for the benefit of the Secured Parties, in each
case, as amended.
"Commitment" means a Term B Commitment, a Revolving Credit
Commitment, a Swing Line Commitment or a Letter of Credit Commitment.
"Company" has the meaning specified in the Preliminary
Statements.
"Company Stock" means each share of the Class A Common Stock,
par value $0.01 per share, of the Company and each share of the Class B
Common Stock, par value $0.01 per share, of the Company, in each case
issued and outstanding immediately prior to the Effective Date.
"Confidential Information" means information that any Loan
Party furnishes to any Agent or any Lender Party on a confidential
basis, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is
or becomes available to such Agent or such Lender Party from a source
other than the Loan Parties (or any of their advisors, representatives,
employees or agents).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
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co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof. It is agreed
that Contingent Obligations of any Loan Party shall not include any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any leases, dividends or other payment obligations of any
other Loan Party. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for
which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as
determined by such Person in good faith.
"Continuing Directors" means (i) members of the board of
directors of the Borrower on the Closing Date and (ii) other persons
nominated or elected to the board of directors of the Borrower with the
approval of a majority of the directors who were members of the board
of directors at the time of such election or nomination.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date), (b) all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after
such date and (c) all other items (including taxes accrued as
estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
"Debt" of any Person means, without duplication for purposes
of calculating financial ratios, (a) all indebtedness of such Person
for borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services other than trade payables, not
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overdue by more than 120 days incurred in the ordinary course of such
person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments (excluding
intercompany indebtedness between Loan Parties), (d) all Obligations of
such Person created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Obligations of such
Person as lessee under Capitalized Leases, (f) all Obligations of such
Person under acceptance, letter of credit or similar facilities, (g)
all Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to
acquire such Equity Interests, valued, in the case of Redeemable
Preferred Interests, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all
Obligations of such Person in respect of Hedge Agreements, valued at
the Agreement Value thereof, (i) all Contingent Obligations and
Off-Balance Sheet Obligations of such Person and (j) all indebtedness
and other payment Obligations referred to in clauses (a) through (i)
above of another Person secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness or other
payment Obligations. "Debt" shall not include (x) liabilities under
deferred compensation plans, (y) liabilities that may arise in
connection with indemnification provisions contained in agreements
entered into in the ordinary course of business or contained in
agreements entered into in connection with the acquisition or
disposition of assets, stock or other property, in each case to the
extent permitted in the Loan Documents, and (z) liabilities under
operating leases.
"Debt for Borrowed Money" of any Person means, at any date of
determination, all items that, in accordance with GAAP, would be
classified as indebtedness on a Consolidated balance sheet of such
Person at such date.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"Default Interest" has the meaning set forth in Section
2.06(b).
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.14(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
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"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of a Swing Line Advance made by the Swing
Line Bank, (b) the Issuing Bank pursuant to Section 2.16(c) to purchase
a portion of a Letter of Credit Advance made by the Issuing Bank, (c)
the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any
other Lender Party pursuant to Section 2.12 to purchase any
participation in Advances owing to such other Lender Party and (e) any
Agent or the Issuing Bank pursuant to Section 8.05 to reimburse such
Agent or the Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.14(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Depositary" has the meaning specified in the Offer to
Purchase and Consent Solicitation Statement.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, at any date of determination, the sum,
determined in accordance with GAAP on a Consolidated basis and without
duplication, of (a) net income (or net loss), (b) interest expense, (c)
income tax expense, (d) depreciation expense and (e) amortization
expense, in each case of the Borrower and its Restricted Subsidiaries,
determined in accordance with GAAP for the most recently completed
Measurement Period.
For purposes of calculating EBITDA with respect to any
Measurement Period, (A) acquisitions that have been made by the
Borrower or its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during
the reference period shall be deemed to have occurred on the first day
of the reference period; provided, however, that only the actual
historical results of operations of the Persons so acquired, without
adjustment for pro forma expense savings or revenue increases, shall be
used for such calculation; and (B) for purposes of calculating Funded
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Leverage Ratio only, the EBITDA of the Borrower or its Restricted
Subsidiaries attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to
the end of such reference period, shall be excluded.
For the purposes of each of the fiscal quarters ended March
2002 and June 2002, EBITDA of the Borrower shall be as set forth on
Schedule III hereto.
"Effective Date" means the first date on which the conditions
set forth in Article III shall have been satisfied.
"Eligible Assignee" means any commercial bank or financial
institution (including, without limitation, any fund that regularly
invests in loans similar to the Term B Advances) as approved (as
required by Section 9.07(a)) by the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower
(which approval shall not be unreasonably withheld); provided, however,
that neither any Loan Party nor any Subsidiary of a Loan Party shall
qualify as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equity Interests" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
"Escrow Bank" has the meaning specified in Section 2.15(c).
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
11
page) as the London interbank offered rate for deposits in U.S. dollars
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period for a period equal to such Interest Period
(provided that, if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period); provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates) by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any Measurement Period,
(a) the sum of:
(i) Consolidated net income (or loss) of the
Borrower and its Restricted Subsidiaries for such
Measurement Period plus
(ii) the aggregate amount of all non-cash
charges deducted in arriving at such Consolidated net
income (or loss) plus
(iii) if there was a net increase in
Consolidated Current Liabilities of the Borrower and
its Restricted Subsidiaries during such Measurement
Period, the amount of such net increase plus
(iv) if there was a net decrease in
Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Restricted
Subsidiaries during such Measurement Period, the
amount of such net decrease;
12
(b) less the sum of:
(i) the aggregate amount of all non-cash
credits included in arriving at such Consolidated net
income (or loss) plus
(ii) if there was a net decrease in
Consolidated Current Liabilities of the Borrower and
its Restricted Subsidiaries during such Measurement
Period, the amount of such net decrease plus
(iii) if there was a net increase in
Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Restricted
Subsidiaries during such Measurement Period, the
amount of such net increase plus
(iv) the aggregate principal amount of all
scheduled repayments and mandatory prepayments (other
than a mandatory prepayment arising Excess Cash Flow
for a prior Measurement Period) of the Term B
Facility made during such Measurement Period to the
extent that, in the case of any mandatory prepayment,
the applicable Net Cash Proceeds were taken into
account in calculating such Consolidated net income
(or loss) plus
(v) the aggregate amount of Capital
Expenditures of the Borrower paid in cash during such
Measurement Period to the extent permitted by this
Agreement plus
(vi) the aggregate principal amount of all
optional prepayments of the Facilities made during
such Measurement Period pursuant to Section 2.05 (so
long as, in the case of the Revolving Credit
Facility, such prepayment is accompanied by a
permanent reduction in the Revolving Credit
Commitments) plus
(vii) to the extent not taken into account
in paragraphs (iv) and (v) above, Net Litigation
Proceeds.
"Existing Debt" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before the occurrence of the
Effective Date.
"Extraordinary Receipt" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds in excess of
$5,000,000, pension plan reversions, proceeds of insurance (including,
without limitation, any key man life insurance but excluding proceeds
of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings), condemnation awards (and
payments in lieu thereof), indemnity payments and any purchase price
13
adjustment received in connection with any purchase agreement;
provided, however, that an Extraordinary Receipt shall not include (i)
proceeds from litigation or (ii) cash receipts received from proceeds
of insurance, condemnation awards (or payments in lieu thereof) or
indemnity payments to the extent that such proceeds, awards or payments
(A) in respect of loss or damage to equipment, fixed assets or real
property are applied (or in respect of which expenditures were
previously incurred) to replace or repair the equipment, fixed assets
or real property in respect of which such proceeds were received in
accordance with the terms of the Loan Documents, so long as such
application is made within 12 months after the receipt of such
proceeds, awards or payments or (B) are received by any Person in
respect of any third party claim against such Person and applied to pay
(or to reimburse such Person for its prior payment of) such claim and
the costs and expenses of such Person with respect thereto. The
determination of whether proceeds in respect of loss or damage to
equipment, fixed assets or real property are "received" for purposes of
Section 2.05(b)(ii) shall be made at first anniversary of the date such
proceeds are actually received by the Borrower.
"Facility" means the Term B Facility, the Revolving Credit
Facility, the Swing Line Facility or the Letter of Credit Facility.
"Fair Market Rent" shall mean, for any property, the base rent
for the property, based upon the rental rate per square foot that an
unaffiliated landlord and non-expansion, non-renewal, non-equity tenant
would agree to in an arm's length bona fide negotiation for a lease for
comparable property of the same size located in the geographic vicinity
of the such lease taking into account all relevant factors including
the creditworthiness of the tenant and the terms of the lease.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates 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 that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on September 30 in any calendar year.
"Fund" means any Person (other than an individual) that is or
will be engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
"Funded Debt" of any Person means Debt of such Person that by
its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible,
at the option of such Person, to a date more than one year after such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of
more than one year after such date, including, without limitation, all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after the date of determination.
14
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether
xxxxxxx, xxxxx, xxxxxxxxxx, xxxxxxxxxxx, local or foreign.
"Governmental Authorization" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"Guaranteed Obligations" has the meaning specified in Section
7.01(a).
"Guarantor" has the meaning specified in Section 7.07(b).
"Guaranties" means the Subsidiary Guaranty.
"Guaranty Supplement" has the meaning specified in Section
7.07.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a
Lender Party in its capacity as a party to a Secured Hedge Agreement.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Information Memorandum" means the information memorandum
dated July 2002 used by the Administrative Agent in connection with the
syndication of the Commitments.
"Initial Extension of Credit" means the earlier to occur of
the initial borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank" means General Electric Capital
Corporation or any agent acting on its behalf.
15
"Initial Lender Parties", "Initial Lenders" and "Initial Swing
Line Bank" each has the meaning specified in the recital of parties to
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" is defined in the
Security Agreement.
"Interest Coverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated EBITDA to (b) cash interest payable on
all Debt for Borrowed Money, in each case, of or by the Borrower and
its Restricted Subsidiaries for the most recently completed Measurement
Period.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 1:00 P.M. (New York
City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
16
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (h) or (i) of the definition of "Debt" in respect
of such Person.
"Issuing Bank" means the Initial Issuing Bank and any Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as the Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register), for so long as the Initial
Issuing Bank or Eligible Assignee, as the case may be, shall have a
Letter of Credit Commitment.
"Junior Creditor" means Allied Capital Corporation, a Maryland
corporation, as lender under the Mezzanine Facility.
"L/C Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Disbursement" shall mean a payment or disbursement made
by the Issuing Bank pursuant to a Letter of Credit.
"L/C Related Documents" has the meaning specified in Section
2.03(c)(ii)(A). "Lender Party" means any Lender, the Issuing Bank or
the Swing Line Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.16(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.16(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
17
Commitment" or, if the Issuing Bank has entered into an Assignment and
Acceptances, set forth for the Issuing Bank in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as the Issuing
Bank's "Letter of Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment
at such time, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section
2.01(d).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (i) this Agreement, (ii) the Notes,
(iii) the Guaranties, (iv) the Collateral Documents, (v) each Letter of
Credit Agreement and (vi) each Secured Hedge Agreement, in each case as
amended.
"Loan Parties" means the Company, the Borrower and the
Subsidiary Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, or properties of the Borrower and its Subsidiaries, taken
as a whole, since September 30, 2001.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries, taken
as a whole, (b) the rights and remedies of any Agent or any Lender
Party under any Transaction Document or (c) the ability of any Loan
Party to perform its Obligations under any Transaction Document to
which it is or is to be a party.
"Material Contract" means the Dow contract.
"Measurement Period" means, at any date of determination, the
most recently completed four consecutive fiscal quarters of the
Borrower ending on or prior to such date or, if less than four
consecutive fiscal quarters of the Borrower have been completed since
the date of the Initial Extension of Credit, the fiscal quarters of the
Borrower that have been completed since the date of the Initial
Extension of Credit, provided that EBITDA for each of the fiscal
quarters ended December 2001, March 2002 and June 2002, respectively,
shall be as set forth on Schedule III hereto, and provided further that
(a) for purposes of determining an amount of any item included in the
calculation of any financial ratio (other than EBITDA) or any financial
18
covenant for the fiscal quarter ended December 2002, such amount for
the Measurement Period then ended shall equal such item for such fiscal
quarter multiplied by four; (b) for purposes of determining an amount
of any item included in the calculation of any financial ratio (other
than EBITDA) or any financial covenant for the fiscal quarter ended
March 2003, such amount for the Measurement Period then ended shall
equal such item for the two fiscal quarters then ended multiplied by
two; and (c) for purposes of determining an amount of any item included
in the calculation of any financial ratio (other than EBITDA) or any
financial covenant for the fiscal quarter ended June 2003, such amount
for the Measurement Period then ended shall equal such item for the
three fiscal quarters then ended multiplied by 4/3.
"Merger" has the meaning specified in the Preliminary
Statements.
"Merger Agreement" has the meaning specified in the
Preliminary Statements.
"Mezzanine Facility" means the subordinated facility between
the Borrower and the Junior Creditor, dated of even date.
"Mortgage Policies" has the meaning specified in Section
5.01(p)(B).
"Mortgages" has the meaning specified in Section 5.01(p).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to (A) any sale,
lease, transfer or other disposition of any asset or (B) the incurrence
or issuance of any Debt or (C) the sale or issuance of any Equity
Interests (including, without limitation, any capital contribution) by
any Person, or (D) any Extraordinary Receipt received by or paid to or
for the account of any Person, the aggregate amount of cash actually
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of
such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable brokerage
commissions, underwriting and investment banking fees and discounts,
legal fees, finder's fees, accounting fees, professional fees and other
similar fees and commissions and other reasonable closing costs
actually incurred in connection with such transaction, (b) the amount
of taxes payable in connection with or as a result of such transaction,
(c) all payments made to retire Debt where payment of such Debt is
required in connection with such transaction, (d) liability reserves
established in respect of such transaction in accordance with GAAP, in
each case (a)-(d) to the extent, but only to the extent, that the
19
amounts so deducted are, at the time of receipt of such cash, actually
paid or reserved with respect to a Person that is not an Affiliate of
such Person or any Loan Party or any Affiliate of any Loan Party and
are properly attributable to such transaction or to the asset that is
the subject thereof; provided, however, that in the case of taxes that
are deductible under clause (b) above but for the fact that, at the
time of receipt of such cash, such taxes have not been actually paid or
are not then payable, such Loan Party or such Subsidiary may deduct an
amount (the "Reserved Amount") equal to the amount reserved in
accordance with GAAP for such Loan Party's or such Subsidiary's
reasonable estimate of such taxes, other than taxes for which such Loan
Party or such Subsidiary is indemnified, provided further, however,
that, at the time such taxes are paid, an amount equal to the amount,
if any, by which the Reserved Amount for such taxes exceeds the amount
of such taxes actually paid shall constitute "Net Cash Proceeds" of the
type for which such taxes were reserved for all purposes hereunder;
provided further that Net Cash Proceeds shall not include any cash
receipts from any transaction described in clause (A) or (D) above to
the extent such cash receipts are reinvested in the business of the
Borrower and its Subsidiaries within 12 months after the date of
receipt thereof.
"Net Litigation Proceeds" means with respect to any proceeds
received by any Person in connection with any litigation, through a
judgment or a settlement or otherwise, the aggregate amount of cash
actually received from time to time by or on behalf of such Person in
connection with such transaction after deducting therefrom only
(without duplication) (a) all reasonable costs and expenses incurred by
such Person (including, without limitation, attorneys' fees and
expenses) in connection with such litigation and (b) all payments
required to be made by such Person under any binding contractual
arrangement in connection with such litigation; provided that Net
Litigation Proceeds shall not include any such cash receipts to the
extent such cash receipts are reinvested in the business of the
Borrower and its Subsidiaries within 12 months after the date of
receipt thereof. The determination of whether proceeds in connection
with any litigation are "received" for purposes of Section 2.05(b)(iv)
shall be made at first anniversary of the date such proceeds are
actually received by the Borrower.
"Note" means a Term B Note or a Revolving Credit Note.
"Notice of Acceptance" means the notice of acceptance to be
delivered by Public Sub to the Depositary promptly after the Expiration
Date (as defined in the Offer to Purchase and Consent Solicitation
Statement) pursuant to which Public Sub accepts for payment the
Subordinated Notes tendered into the Offer.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.16(a).
"Notice of Renewal" has the meaning specified in Section
2.01(d).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
20
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Off Balance Sheet Obligation" means, with respect to any
Person, any Obligation of such Person under a synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing classified as an operating lease in
accordance with GAAP, if such Obligations would or will give rise to a
claim against such Person in a proceeding referred to in Section
6.01(f).
"Offer" means the offer by Public Sub to purchase, upon the
terms and subject to the conditions set forth in the Offer to Purchase
and Consent Solicitation Statement, any and all of its outstanding
Subordinated Notes.
"Offer to Purchase and Consent to Solicitation Statement"
means the Offer to Purchase and Consent to Solicitation Statement,
dated July 25, 2002, of Public Sub in connection with the Offer.
"Open Year" has the meaning specified in Section 4.01(r)(iii).
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" has the meaning specified in the
Mortgages.
"Permitted Liens" means each of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's, repairmen's, landlords' and
warehousemens' Liens and other similar Liens (whether nonconsensual or
otherwise) arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days or
are being contested in good faith; (c) pledges or deposits to secure
obligations under workers' compensation laws, unemployment insurance or
similar social security laws, regulations or legislation or to secure
public or statutory obligations; (d) Permitted Encumbrances; (e) Liens
to secure the performance of bids, trade contracts, government
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature (exclusive of
21
obligations for the payment of borrowed money), in each case in the
ordinary course of business; (f) judgment liens in respect of judgments
that do not constitute an Event of Default under Section 6.01(g); (g)
any interest or title of a lessor under any lease permitted by this
Agreement; (h) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; and (i) licenses of
intellectual property granted in the ordinary course of business.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledged Debt" has the meaning specified in the Security
Agreement.
"Post Petition Interest" has the meaning specified in Section
7.08(b).
"Pre-Commitment Information" means, the information furnished
to Xxxxxx Xxxxxxx by the Borrower or on behalf of the Borrower, or by
the Company or on behalf of the Company prior to July 15, 2002.
"Preferred Interests" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"Prepayment Date" means with respect to any cash receipts from
a transaction described in clause (A), (B), (C) or (D) of the
definition of "Net Cash Proceeds", the date of the receipt of such Net
Cash Proceeds by the Borrower or any of its Subsidiaries or, if any
cash receipts from a transaction described in clause (A) or (D) of the
definition of "Net Cash Proceeds" are not deemed to be Net Cash
Proceeds pursuant to the last proviso of the definition of "Net Cash
Proceeds" and are not reinvested in the business of the Borrower and
its Subsidiaries within 12 months after the date of receipt thereof,
the date which is 12 months following the date of receipt of such cash
receipts.
"Prepayment Percentage" means, at any time, the applicable
percentage determined in accordance with the table set forth below:
======================================== ==============================
Total Leverage Ratio Prepayment Percentage
======================================== ==============================
Greater than 1.0 0%
---------------------------------------- ------------------------------
Equal to 1.0 75%
======================================== ==============================
The Prepayment Percentage shall be determined by reference to
the Total Leverage in effect from time to time; provided, however, that
no change in the Prepayment Percentage shall be effective until three
Business Days after the date on which the Administrative Agent receives
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the financial statements required to be delivered pursuant to Section
5.03(b) or(c), as the case may be, and a certificate of the Chief
Financial Officer of the Borrower demonstrating such Total Leverage
Ratio.
"Properties" shall mean those properties listed on Schedule
4.01(u) and Schedule 4.01(v).
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.04 or 6.01, such Lender's
Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit
Facility at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.04 or 6.01, the Revolving Credit
Facility as in effect immediately prior to such termination).
"Receivables" means all Receivables referred to in Section
1(c) of the Security Agreement.
"Redeemable" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"Reduction Amount" has the meaning specified in Section
2.05(b)(iii).
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Merger Agreement, the Offer to
Purchase and Consent to Solicitation Statement, the Mezzanine Facility,
the Subordination Agreement and any other agreements related to the
Mezzanine Facility.
"Required Lenders" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and (b) the
aggregate Unused Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to
such Lender (in its capacity as a Lender) and outstanding at such time
and (B) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank and of Letter of
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Credit Advances owing to the Issuing Bank and the Available Amount of
each Letter of Credit shall be considered to be owed to the Revolving
Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"Responsible Officer" means the Chief Executive Officer or the
Chief Financial Officer of the Borrower.
"Restricted Subsidiary" means each of the Subsidiaries of the
Borrower in existence on the date hereof and any other Subsidiary
created or acquired after the date hereof except for any Subsidiary
which the Borrower designates an Unrestricted Subsidiary at the time of
its creation or acquisition. Any Subsidiary that is a Restricted
Subsidiary (including any Subsidiary that is not designated an
Unrestricted Subsidiary at the time of its creation or acquisition)
shall be a Restricted Subsidiary for the term of this Agreement.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(b).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Revolving Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances, Letter of Credit Advances and Swing Line
Advances made by such Lender, as amended.
"Revolving Credit Termination Date" means the earlier of
September 19, 2005 and the date of termination in whole of the
Revolving Credit Commitments, the Letter of Credit Commitment and the
Swing Line Commitment pursuant to Sections 2.04 and 6.01.
"Secured Hedge Agreement" means any Hedge Agreement required
or permitted under Article V that is entered into by and between the
Borrower and Hedge Bank.
"Secured Obligations" has the meaning specified in Section 2
of the Security Agreement.
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"Secured Parties" means the Agents, the Lender Parties and the
Hedge Banks.
"Security Agreement" has the meaning specified in Section
3.01(a)(ii).
"Senior Leverage Ratio" means, at any date of determination,
the ratio of Consolidated Debt for Borrowed Money of the Borrower and
the Restricted Subsidiaries, other than Subordinated Debt, to
Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for
the most recently completed Measurement Period.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Subordinated Debt" means the Subordinated Notes, Debt under
the Mezzanine Facility and any other Debt of any Loan Party that is
subordinated to the Obligations of such Loan Party under the Loan
Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"Subordinated Notes" means the 10% Senior Subordinated Notes
due 2008 issued by the Public Sub.
"Subordinated Obligations" has the meaning specified in
Section 7.08.
"Subordination Agreement" means the subordination agreement
dated of even date, among the Borrower, the Administrative Agent and
the Junior Creditor.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
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having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Borrower
(including the Company) listed on Schedule II hereto and each other
Restricted Subsidiary of the Borrower that shall be required to execute
and deliver a guaranty pursuant to Section 5.01(k).
"Subsidiary Guaranty" means the guaranty of the Subsidiary
Guarantors set forth in Article VII together with each other guaranty
and guaranty supplement delivered pursuant to Section 5.01(k), in each
case as amended, amended and restated, modified or otherwise
supplemented.
"Surviving Debt" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Initial Extension of Credit.
"Swing Line Advance" means an advance made by the Swing Line
Bank pursuant to Section 2.01(c).
"Swing Line Bank" means the Initial Swing Line Bank and any
Eligible Assignee to which the Swing Line Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all
obligations that by the terms of this Agreement are required to be
performed by it as a Swing Line Bank and notifies the Administrative
Agent of its Applicable Lending Office (which information shall be
recorded by the Administrative Agent in the Register).
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(c) or
the Revolving Credit Lenders pursuant to Section 2.02(b).
"Swing Line Commitment" means, with respect to the Swing Line
Bank at any time, the amount set forth opposite the Swing Line Bank's
name on Schedule I hereto under the caption "Swing Line Commitment" or,
if the Swing Line Bank has entered into an Assignment and Acceptance,
set forth for the Swing Line Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as the Swing Line
Bank's "Swing Line Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.04.
"Swing Line Facility" means, at any time, an amount equal to
the amount of the Swing Line Bank's Swing Line Commitment at such time
as such amount may be reduced at or prior to such time pursuant to
Section 2.04.
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"Taxes" has the meaning specified in Section 2.11(a).
"Term B Advance" has the meaning specified in Section 2.01(a).
"Term B Borrowing" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"Term B Commitment" means, with respect to any Term B Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term B Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.04.
"Term B Facility" means, at any time, the aggregate amount of
the Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Note" means a promissory note of the Borrower payable
to the order of any Term B Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term B Advance made by such Lender, as amended.
"Termination Date" means the earlier of August 30, 2007 and
the date of termination in whole of the Term B Commitments pursuant to
Sections 2.04 or 6.01.
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"Total Leverage Ratio" means, at any date of determination,
the ratio of Consolidated Debt for Borrowed Money of the Borrower and
the Restricted Subsidiaries to Consolidated EBITDA of the Borrower and
the Restricted Subsidiaries for the most recently completed Measurement
Period.
"Transaction" means the Merger, consummation of the Tender
Offer and the other transactions contemplated by the Transaction
Documents.
"Transaction Documents" means, collectively, the Loan
Documents and the Related Documents.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unrestricted Subsidiary" means all of the Subsidiaries of the
Borrower other than Restricted Subsidiaries. Any Subsidiary that is
designated an Unrestricted Subsidiary at the time of its creation or
27
acquisition shall be an Unrestricted Subsidiary for the term of this
Agreement. For purposes of this Agreement and the other Loan Documents,
Flexcrete LLC shall be an Unrestricted Subsidiary.
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, (a) such Lender's Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Pro Rata Share of the
sum of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Bank pursuant to Section
2.16(c) and outstanding at such time and (C) the aggregate principal
amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(c) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02 Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles applicable in the United States of America and consistent
with those applied in the preparation of the financial statements referred to in
Section 4.01(g) ("GAAP").
SECTION 1.04 Currency Equivalents Generally. Any amount specified in
this Agreement (other than in Articles II, VII and IX) or any of the other Loan
Documents to be in U.S. dollars shall also include the equivalent of such amount
in any currency other than U.S. dollars, such equivalent amount to be determined
at the rate of exchange quoted by the Administrative Agent in New York, New York
at the close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in U.S. dollars
with such other currency.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Advances. (a) The Term B Advances. Each Term B Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "Term B Advance") to the Borrower on the Effective Date in an
amount not to exceed such Lender's Term B Commitment at such time. The Term B
Borrowing shall consist of Term B Advances made simultaneously by the Term B
Lenders ratably according to their Term B Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed. The Borrower
will receive proceeds from the Term B Facility in an amount equal to 97% of the
principal amount of the Term B Facility.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to the Borrower from time to time
on any Business Day during the period from the Effective Date until the
Revolving Credit Termination Date in an amount for each such Advance not to
exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and shall consist of Revolving
Credit Advances made simultaneously by the Revolving Credit Lenders ratably
according to their Revolving Credit Commitments. Within the limits of each
Revolving Credit Lender's Unused Revolving Credit Commitment in effect from time
to time, the Borrower may borrow under this Section 2.01(b), prepay pursuant to
Section 2.05(a) and reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Swing Line Bank agrees on the terms
and conditions hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Revolving Credit Termination Date (i) in an aggregate
amount not to exceed at any time outstanding the Swing Line Commitment (the
"Swing Line Facility") and (ii) in an amount for each such Swing Line Borrowing
not to exceed the aggregate of the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time. No Swing Line Advance shall be used for
the purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof and shall be made as a Base Rate Advance.
Within the limits of the Swing Line Facility and within the limits referred to
in clause (ii) above, the Borrower may borrow under this Section 2.01(c), repay
pursuant to Section 2.03(c) or prepay pursuant to Section 2.05(a) and reborrow
under this Section 2.01(c).
(d) The Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "Letters of
Credit") in U.S. Dollars for the account of the Borrower from time to time on
any Business Day during the period from the Effective Date until July 17, 2005
29
in an aggregate Available Amount (i) for all Letters of Credit not to exceed at
any time the lesser of (x) the Letter of Credit Facility at such time and (y)
the Issuing Bank's Letter of Credit Commitment at such time and (ii) for each
such Letter of Credit not to exceed the Unused Revolving Credit Commitments of
the Revolving Credit Lenders at such time; provided, however, that in no event
shall the aggregate Available Amount for all Letters of Credit exceed $5 million
.. No Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than July 17, 2005 and (A)
in the case of a Standby Letter of Credit, one year after the date of issuance
thereof, but may by its terms be renewable annually upon notice (a "Notice of
Renewal") given to the Issuing Bank and the Administrative Agent on or prior to
any date for notice of renewal set forth in such Letter of Credit but in any
event at least three Business Days prior to the date of the proposed renewal of
such Standby Letter of Credit and upon fulfillment of the applicable conditions
set forth in Article III unless the Issuing Bank has notified the Borrower (with
a copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event at least 30
Business Days prior to the date of automatic renewal of its election not to
renew such Standby Letter of Credit (a "Notice of Termination") and (B) in the
case of a Trade Letter of Credit, 60 days after the date of issuance thereof;
provided that the terms of each Standby Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank that issued such Standby
Letter of Credit to give the beneficiary named in such Standby Letter of Credit
notice of any Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Standby Letter of Credit prior to the date
such Standby Letter of Credit otherwise would have been automatically renewed
and (z) not permit the expiration date (after giving effect to any renewal) of
such Standby Letter of Credit in any event to be extended to a date later than
July 17, 2005. If either a Notice of Renewal is not given by the Borrower or a
Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on the date on
which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the Issuing Bank may
in its discretion, unless instructed to the contrary by the Administrative Agent
or the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(d), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.16(c) and request the issuance of additional Letters of Credit under this
Section 2.01(d).
SECTION 2.02 Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.16, each Borrowing shall be made on notice, given not later
than 1:00 P.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or 1:00 P.M. (New York City time) on the first Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Base Rate Advances, by the Borrower to the Administrative Agent, which shall
give to each Appropriate Lender prompt notice thereof by telex or telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or telex or telecopier, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Facility under which such Borrowing is to be made, (iii) Type of
Advances comprising such Borrowing, (iv) aggregate amount of such Borrowing and
30
(v) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Appropriate Lender shall, before
11:00 A.M. (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by wire transfer to the Borrower's
Account; provided, however, that, in the case of any Revolving Credit Borrowing,
the Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank or the Issuing Bank, as the case may be,
and by any other Revolving Credit Lender and outstanding on the date of such
Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as
of such date, available to the Swing Line Bank or the Issuing Bank, as the case
may be, and such other Revolving Credit Lenders for repayment of such Swing Line
Advances and Letter of Credit Advances. For the avoidance of doubt, the Borrower
may deliver more than one Notice of Borrowing on the same Business Day.
(b) Each Swing Line Borrowing shall be made on notice, given not later
than 12:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent
and the Administrative Agent shall give each Appropriate Lender prompt notice
thereof by telex or telecopier. Each such notice of a Swing Line Borrowing (a
"Notice of Swing Line Borrowing") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, specifying therein the requested (i) date of
such Borrowing and (ii) amount of such Borrowing. The Swing Line Bank will make
the amount of the requested Swing Line Advances available to the Administrative
Agent at the Administrative Agent's Account, in same day funds. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by wire transfer to the Borrower's
Account. Upon the Business Day following the date on which a Swing Line
Borrowing is made, each other Revolving Credit Lender shall purchase from the
Swing Line Bank, and the Swing Line Bank shall sell and assign to each such
other Revolving Credit Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of such Business Day, by making available for
the account of its Applicable Lending Office to the Administrative Agent for the
account of the Swing Line Bank, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by such Lender. Each
Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations in Swing Line Advances pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each such purchase and
advance by each Revolving Credit Lender shall constitute a Revolving Advance.
The Borrower hereby agrees to each such sale and assignment. Each Revolving
Credit Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line
Advance on (i) such Business Day, provided that notice of such Swing Line
Borrowing is given not later than 11:00 A.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such Business Day if
notice of such Swing Line Borrowing is given after such time. Upon any such sale
by the Swing Line Bank to any other Revolving Credit Lender of a portion of a
Swing Line Advance, the Swing Line Bank represents and warrants to such other
31
Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being sold by it, free and clear of any adverse claims, but makes no
other representation or warranty and assumes no responsibility with respect to
such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of the Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder and for a thirty (30) day period from the date hereof (or
such earlier date as shall be specified in its sole discretion by the
Administrative Agent in a written notice to the Borrower and the Lenders) or for
any Borrowing if the aggregate amount of such Borrowing is less than $1,000,000
or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.09 and (ii) the Term B
Advances may not be outstanding as part of more than eight separate Borrowings
and the Revolving Credit Advances may not be outstanding as part of more than
six separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
32
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.06 to Advances comprising such Borrowing, but not otherwise owing under
Section 9.04(c) and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Advance as part of such
Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03 Repayment of Advances. (a) Term B Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Term B
Lenders the aggregate outstanding principal amount of the Term B Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05):
Date Amount
---- ------
December 31, 2002 $3,875,000
March 31, 2003 $3,875,000
June 30, 2003 $3,875,000
September 30, 2003 $3,875,000
December 31, 2003 $7,750,000
March 31, 2004 $7,750,000
June 30, 2004 $7,750,000
September 30, 2004 $7,750,000
December 31, 2004 $7,750,000
March 31, 2005 $7,750,000
June 30, 2005 $7,750,000
September 30, 2005 $7,750,000
December 31, 2005 $7,750,000
March 31, 2006 $7,750,000
June 30, 2006 $7,750,000
September 30, 2006 $7,750,000
33
Date Amount
---- ------
December 31, 2006 $11,625,000
March 31, 2007 $11,625,000
June 30, 2007 $11,625,000
August 30, 2007 $11,625,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(c) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the
Revolving Credit Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any
such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank of any draft or
the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto
(all of the foregoing being, collectively, the "L/C Related
Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations of the Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee
may be acting), the Issuing Bank or any other Person, whether
in connection with the transactions contemplated by the L/C
Related Documents or any unrelated transaction;
34
(D) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft, certificate or other
document that does not strictly comply with the terms of such
Letter of Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or
waiver of or consent to departure from the Guaranties or any
other guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(G) other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge
of, the Borrower or a guarantor.
SECTION 2.04 Termination or Reduction of the Commitments. (a) Optional.
The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the Swing Line
Facility, the Letter of Credit Facility and the Unused Revolving Credit
Commitments; provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of $1,000,000 or an integral multiple of
$500,000 in excess thereof (ii) shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) From time to time upon each repayment or
prepayment of the Term B Advances, the aggregate Term B Commitments of
the Term B Lenders shall be automatically and permanently reduced, on a
pro rata basis, by an amount equal to the amount by which the aggregate
Term B Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term B Advances then
outstanding (after giving effect to any such repayment or prepayment
thereof).
(ii) The Swing Line Facility shall be permanently
reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the
amount of the Swing Line Facility exceeds the Revolving Credit
Facility after giving effect to such reduction of the
Revolving Credit Facility.
(iii) The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each
reduction in the Revolving Credit Facility by the amount, if
any, by which the amount of the Letter of Credit Facility
exceeds the Revolving Credit Facility after giving effect to
such reduction of the Revolving Credit Facility.
(iv) The Revolving Credit Facility shall be
automatically and permanently reduced, on a pro rata basis, on
each date on which prepayment thereof is required to be made
pursuant to Section 2.05(b)(i), (ii), (iii) or (iv) in an
amount equal to the applicable Reduction Amount, provided that
each such reduction of the Revolving Credit Facility shall be
made ratably among the Revolving Credit Lenders in accordance
with their Revolving Credit Commitments.
35
SECTION 2.05 Prepayments. (a) Optional. The Borrower may, upon at least
one Business Day's notice in the case of Base Rate Advances and three Business
Days' notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent (which shall give each Appropriate Lender prompt notice
thereof by telex or telecopier) stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
(i) accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $1,000,000 or an integral multiple of $500,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a date other than the last day of an Interest Period for such Advance, the
Borrower shall also pay any amounts owing pursuant to Section 9.04(c). Each such
prepayment of any Term B Advances shall be applied pro rata to the installments
thereof.
(b) Mandatory. (i) The Borrower shall, on the 90th day
following the end of each Fiscal Year, prepay an aggregate principal
amount of the Advances in an amount equal to the relevant Prepayment
Percentage at such time of the Excess Cash Flow for such Fiscal Year.
Each such prepayment shall be applied ratably first to the Term B
Facility and to the installments thereof on a pro rata basis until paid
in full and second to the Revolving Credit Facility as set forth in
clause (v) below.
(ii) The Borrower shall, on the date of receipt or
when otherwise required hereunder of the Net Cash Proceeds by
the Borrower or any of its Restricted Subsidiaries from (A)
the sale, lease, transfer or other disposition of any assets
of the Borrower or any of its Restricted Subsidiaries (other
than any sale, lease, transfer or other disposition of assets
pursuant to clause (i), (ii) or (iii) of Section 5.02(e)), (B)
the incurrence or issuance by the Borrower or any of its
Restricted Subsidiaries of any Debt for Borrowed Money (other
than Debt incurred or issued pursuant to Section
5.02(b)(i)-(ii)) and (C) any Extraordinary Receipt received by
or paid to or for the account of the Borrower or any of its
Restricted Subsidiaries and not otherwise included in clause
(A) or (B) above, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount
equal to the amount of such Net Cash Proceeds. Each such
prepayment shall be applied ratably first to the Term Loan B
Facility and to the installments thereof on a pro rata basis
until paid in full and second to the Revolving Credit Facility
as set forth in clause (v) below.
(iii) The Borrower shall, on the date of receipt or
when otherwise required hereunder of the Net Cash Proceeds by
the Borrower or any of its Restricted Subsidiaries from the
sale or issuance by the Borrower or any of its Restricted
Subsidiaries of any Equity Interests (including, without
limitation, receipt of any capital contribution (other than
from a Loan Party)), prepay an aggregate principal amount of
the Advances comprising part of the same Borrowings in an
amount equal to (A) during the first six months following the
Closing Date, 100% of such Net Cash Proceeds (or, to the
extent that the Borrower is applying such Net Cash Proceeds to
the repayment or prepayment of Debt in respect of the
Mezzanine Facility, the percentage of such Net Cash Proceeds
(not to be less than 50%) not so applied) and (B) thereafter,
(1) at any time at which the Leverage Ratio for the most
recently ended fiscal quarter is greater than 1.50:1, 100% of
such Net Cash Proceeds and (2) otherwise, 0% of such Net Cash
Proceeds. Each such prepayment shall be applied ratably first
to the Term Loan B Facility and to the installments thereof on
a pro rata basis until paid in full and second to the
Revolving Credit Facility as set forth in clause (v) below.
36
(iv) The Borrower shall, on the date of receipt or
when otherwise required hereunder of Net Litigation Proceeds
by the Borrower or any of its Restricted Subsidiaries, prepay
an aggregate principal amount of the Advances in an amount
equal to the relevant Prepayment Percentage at such time of
such Net Litigation Proceeds. Each such prepayment shall be
applied ratably first to the Term B Facility and to the
installments thereof on a pro rata basis until paid in full
and second to the Revolving Credit Facility as set forth in
clause (v) below.
(v) Prepayments of the Revolving Credit Facility made
pursuant to clause (i), (ii), (iii) and (iv) above shall be
first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second
applied to prepay Swing Line Advances then outstanding until
such Advances are paid in full, third applied to prepay
Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and
fourth deposited in the L/C Collateral Account to cash
collateralized 100% of the Available Amount of the Letters of
Credit then outstanding; and, in the case of prepayments of
the Revolving Credit Facility required pursuant to clause (i),
(ii), (iii) and (iv)above, the amount remaining (if any) after
the prepayment in full of the Advances then outstanding and
the 100% cash collateralization of the aggregate Available
Amount of Letters of Credit then outstanding (the sum of such
prepayment amounts in respect of Revolving Credit Advances,
the Letter of Credit Advances and Swing Line Advances, cash
collateralization amounts and the remaining amount being
referred to herein as the "Reduction Amount") may be retained
by the Borrower and the Revolving Credit Facility shall be
permanently reduced as set forth in Section 2.04(b)(iv). Upon
the drawing of any Letter of Credit for which funds are on
deposit in the L/C Collateral Account, such funds shall be
applied to reimburse the Issuing Bank or Revolving Credit
Lenders, as applicable.
(vi) The Borrower shall, on each Business Day, pay to
the Administrative Agent for deposit in the L/C Collateral
Account an amount sufficient to cause the aggregate amount on
deposit in the L/C Collateral Account to equal the amount by
which the aggregate Available Amount of all Letters of Credit
then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(vii) All prepayments under this subsection (b) shall
be made together with accrued interest to the date of such
prepayment on the principal amount prepaid together with any
amounts owing pursuant to Section 9.04(c).
SECTION 2.06 Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to
time, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on
the date such Base Rate Advance shall be Converted or paid in
full.
37
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period,
payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f) or an Event
of Default, the Administrative Agent may, and upon the request of the
Required Lenders shall, require that the Borrower pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance
owing to each Lender Party, payable in arrears on the dates referred to
in clause (i) or (ii) of Section 2.06(a), as applicable, and on demand,
at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (i) or
(ii) of Section 2.06(a), as applicable, and (ii) to the fullest extent
permitted by applicable law, the amount of any interest, fee or other
amount payable under this Agreement or any other Loan Document to any
Agent or any Lender Party that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in
arrears on the date such amount shall be paid in full and on demand, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (i) or
(ii) of Section 2.06(a), as applicable, and, in all other cases, on
Base Rate Advances pursuant to clause (i) of Section 2.06(a); provided,
however, that following the acceleration of the Advances, or the giving
of notice by the Agent to accelerate the Advances, pursuant to Section
6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Administrative Agent.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a
notice of Conversion pursuant to Section 2.09 or a notice of selection
of an Interest Period pursuant to the terms of the definition of
"Interest Period", the Administrative Agent shall give notice to the
Borrower and each Appropriate Lender of the applicable Interest Period
and the applicable interest rate determined by the Administrative Agent
for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.07 Fees. (a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
date of the Initial Extension of Credit in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Revolving
Credit Termination Date, payable in arrears from the date of the Initial
Extension of Credit, thereafter quarterly on the last day of each March, June,
September and December, commencing December 31, 2002, and on the Revolving
Credit Termination Date, at the rate of 5/8 of 1% per annum on the sum of the
38
average daily Unused Revolving Credit Commitment of such Lender; plus its Pro
Rata Share of the average daily outstanding Swing Line Advances during such
quarter; provided, however, that any commitment fee accrued with respect to any
of the Commitments of a Defaulting Lender during the period prior to the time
such Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrower so long as such Lender shall be Defaulting Lender except
to the extent that such commitment fee shall otherwise have been due and payable
by the Borrower prior to such time; and provided further that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(b) Agents' Fees. The Borrower shall pay to each Agent for its
own account such fees as may from time to time be agreed between the
Borrower and such Agent.
(c) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit
Lender a commission, payable in arrears quarterly on the last day of
each March, June, September and December, commencing December 31, 2002,
and on the earliest to occur of the full drawing, expiration,
termination or cancellation of any Letter of Credit and on the
Revolving Credit Termination Date in respect of the Letter of Credit
Facility, on such Lender's Pro Rata Share of the average daily
aggregate Available Amount during such quarter of all Letters of Credit
outstanding from time to time at the rate of at the Applicable Margin
for Eurodollar Rate Advances under the Revolving Credit Facility. Upon
the occurrence and during the continuance of a Default under Section
6.01(a) or 6.01(f) or an Event of Default, the amount of commission
payable by the Borrower under this clause (b)(i) shall be increased by
2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for
its own account, such commissions, issuance fees, fronting
fees, transfer fees and other fees and charges in connection
with the issuance or administration of each Letter of Credit
as the Borrower and the Issuing Bank shall agree.
SECTION 2.08 Conversion of Advances. (a) Optional. The Borrower may on
any Business Day, upon notice given to the Administrative Agent (which shall
give each Appropriate Lender prompt notice thereof by telex or telecopier) not
later than 2:00 P.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections 2.09
and 2.10, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(c), any
Conversion of Eurodollar Rate Advances into Base Rate Advances during the
Initial Interest Period of such Eurodollar Rate Advance shall only be made if
all amounts due as a result of such Conversion pursuant to Section 9.04(b) shall
be paid at such time, no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.02(c) and each Conversion of
Advances comprising part of the same Borrowing under any Facility shall be made
ratably among the Appropriate Lenders in accordance with their Commitments under
such Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
39
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$2,000,000, such Advances shall automatically Convert into Base Rate
Advances.
(ii) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate
Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and
the Appropriate Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance
of any Default, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09 Increased Costs, Etc.. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any law from any
central bank or other governmental authority not in effect as of the date
hereof, there shall be any increase in the cost to any Lender Party of agreeing
to make or of making, funding or maintaining Eurodollar Rate Advances or of
agreeing to issue or of issuing or maintaining or participating in Letters of
Credit or of agreeing to make or of making or maintaining Letter of Credit
Advances (excluding, for purposes of this Section 2.09, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.11 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, within 15 days of receipt of a written demand from such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that the Borrower shall not be responsible for costs under this Section
2.09(a) arising more than 180 days prior to receipt by the Borrower of the
demand from the affected Lender Party pursuant to this Section 2.09(a) but, to
the extent that the event or circumstance giving rise to such increased costs is
retroactive, then the 180 day period referred to above shall be extended to
include the period of retroactive in effect thereof; provided, further, that a
Lender Party claiming additional amounts under this Section 2.09(a) agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased costs that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party. A certificate as to the amount of such increased cost and the
method of determination of such increased cost, submitted to the Borrower by
such Lender Party, shall be prima facie evidence, absent manifest error. Such
certificate shall contain a representation that any and all calculations made
therein have been made in a manner consistent with the treatment given by such
Lender Party to similar businesses in similar circumstances.
40
(b) If any Lender Party determines that compliance with any
law or regulation not in effect as of the date hereof from any central
bank or other governmental authority (whether or not having the force
of law) affects or would affect the amount of capital required or
expected to be maintained by such Lender Party or any corporation
controlling such Lender Party and that the amount of such capital is
increased then, within 15 days of receipt from such Lender Party or
such corporation of a written demand (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the
extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's
commitment to lend; provided, however, that the Borrower shall not be
responsible for costs under this Section 2.09(b) arising more than 180
days prior to receipt by the Borrower of the demand from the affected
Lender Party pursuant to this Section 2.09(b) but, to the extent that
the event or circumstance giving rise to such increased costs is
retroactive, then the 180 day period referred to above shall be
extended to include the period of retroactive in effect thereof;
provided further that a Lender Party claiming additional amounts under
this Section 2.09(b) agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate
a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased costs that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous
to such Lender Party. A certificate as to such amounts and the method
of determination of such amounts submitted to the Borrower by such
Lender Party shall be prima facie evidence, absent manifest error. Such
certificate shall contain a representation that any and all
calculations made therein have been made in a manner consistent with
the treatment given by such Lender Party to similar businesses in
similar circumstances.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Appropriate Lenders owed at least a majority of the then
aggregate unpaid principal amount thereof notify the Administrative
Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under such Facility will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance and (ii) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that
such Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in the interpretation of any law or
regulation shall make it unlawful for such Lender or any central bank
or other governmental authority having regulatory jurisdiction over a
Lender shall assert that it is unlawful, for its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances
hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar
Rate Advance under each Facility under which such Lender has a
Commitment will automatically, upon such demand, Convert into a Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
41
suspended until the Administrative Agent shall notify the Borrower that
such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any
such demand, such Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or
to continue to fund or maintain Eurodollar Rate Advances and would not,
in the judgment of such Lender, be otherwise disadvantageous to such
Lender; provided further, however, that the Borrower shall in no event
have to pay such Lender amounts otherwise payable under this Section
2.09 with respect to costs, charges, interest or other fees payable by
such Lender incurred as a result of the prepayment of Eurodollar Rate
Advances.
(e) In the event that any Lender Party (other than the
Administrative Agent) demands payment of costs or additional amounts
pursuant to Section 2.09 or Section 2.11 or asserts, pursuant to
Section 2.09(d), that it is unlawful for such Lender Party to make
Eurodollar Rate Advances or becomes a Defaulting Lender then (subject
to such Lender Party's right to rescind such demand or assertion within
10 days after the notice from the Borrower referred to below) the
Borrower may, upon 10 days' prior written notice to such Lender Party
and the Administrative Agent, elect to cause such Lender Party to
assign its Advances and Commitments in full to one or more Persons
selected by the Borrower so long as (i) each such Person satisfies the
criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, (ii) such Lender Party receives payment in full
in cash of the outstanding principal amount of all Advances made by it
and all accrued and unpaid interest thereon and all other amounts due
and payable to such Lender Party as of the date of such assignment
(including, without limitation, amounts owing pursuant to Section 2.09,
2.11, 2.14 and 9.04) and (iii) each Lender Party assignee agrees to
accept such assignment and to assume all obligations of such Lender
Party hereunder in accordance with Section 9.07.
SECTION 2.10 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.14), not
later than 1:00 P.M. (New York City time) on the day when due in U.S. dollars to
the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
42
(b) The Borrower hereby authorizes each Lender Party and each
of its Affiliates, if and to the extent payment owed to such Lender
Party is not made when due hereunder or, in the case of a Lender, under
the Note held by such Lender, to charge from time to time, to the
fullest extent permitted by law, against any or all of the Borrower's
accounts with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of
Credit commissions shall be made by the Administrative Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Administrative Agent of an interest rate, fee or
commission hereunder shall be prima facie evidence, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of
interest or commitment or letter of credit fee or commission, as the
case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made
on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender Party on such due date an amount equal
to the amount then due such Lender Party. If and to the extent the
Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to
such Lender Party together with interest thereon, for each day from the
date such amount is distributed to such Lender Party until the date
such Lender Party repays such amount to the Administrative Agent, at
the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient
to pay in full all amounts due and payable to the Agents and the Lender
Parties under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the
Administrative Agent and applied by the Agents and the Lender Parties
in the following order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and
payable to the Agents (solely in their respective capacities
as Agents) under or in respect of this Agreement and the other
Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
43
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and
payable to the Issuing Bank and the Swing Line Bank (solely in
their respective capacities as such) under or in respect of
this Agreement and the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all
such fees, indemnification payments, costs and expenses owing
to the Issuing Bank and the Swing Line Bank on such date;
(iii) third, to the payment of all of the
indemnification payments, costs and expenses that are due and
payable to the Lenders under Sections 8.05 hereof, Section 21
of the Security Agreement and any similar section of any of
the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification
payments, costs and expenses owing to the Lenders on such
date;
(iv) fourth, to the payment of all of the amounts
that are due and payable to the Administrative Agent and the
Lender Parties under Sections 2.09 and 2.11 hereof on such
date, ratably based upon the respective aggregate amounts
thereof owing to the Administrative Agent and the Lender
Parties on such date;
(v) fifth, to the payment of all of the fees that are
due and payable to the Lenders under Section 2.07(a) on such
date, ratably based upon the respective aggregate Commitments
of the Lenders under the Revolving Credit Facility on such
date;
(vi) sixth, to the payment of all of the accrued and
unpaid interest on the Obligations of the Borrower under or in
respect of the Loan Documents that is due and payable to the
Administrative Agent and the Lender Parties under Section
2.06(b) on such date, ratably based upon the respective
aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued
and unpaid interest on the Advances that is due and payable to
the Administrative Agent and the Lender Parties under Section
2.06(a) on such date, ratably based upon the respective
aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(viii) eighth, to the payment of the principal amount
of all of the outstanding Advances that is due and payable to
the Administrative Agent and the Lender Parties on such date,
ratably based upon the respective aggregate amounts of all
such principal owing to the Administrative Agent and the
Lender Parties on such date; and
(ix) ninth, to the payment of all other Obligations
of the Loan Parties owing under or in respect of the Loan
Documents that are due and payable to the Administrative Agent
and the other Secured Parties on such date, ratably based upon
the respective aggregate amounts of all such Obligations owing
to the Administrative Agent and the other Secured Parties on
such date.
44
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lender Parties in accordance with such Lender Party's Pro Rata Share of
the aggregate principal amount of all Advances outstanding at such time, in
repayment or prepayment of such of the outstanding Advances or other Obligations
then owing to such Lender Party, and, in the case of the Term B Facility, for
application pro rata to such principal repayment installments thereof ratably
based on the respective aggregate amount of such Facility owing to the Lender
Parties and, as the Administrative Agent shall direct.
SECTION 2.11 Taxes. (a) Any and all payments by any Loan Party to or
for the account of any Lender Party or any Agent hereunder or under the Notes or
any other Loan Document shall be made, in accordance with Section 2.10 or the
applicable provisions of such other Loan Document, if any, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender Party
or such Agent, as the case may be, is organized or any political subdivision
thereof and, in the case of each Lender Party, taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If any
Loan Party shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note or any other Loan Document to any
Lender Party or any Agent, (i) the sum payable by the Borrower shall be
increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.11) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, a Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage, recording
or similar taxes, charges or levies that arise from any payment made by
such Loan Party hereunder or under any Notes or any other Loan
Documents or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement, the
Notes or the other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) The Loan Parties shall indemnify each Lender Party and
each Agent for and hold them harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed
or asserted by any jurisdiction on amounts payable under this Section
2.11, imposed on or paid by such Lender Party or such Agent (as the
case may be) and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender
Party or such Agent (as the case may be) makes written demand therefor.
45
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at
its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment, to the extent such a receipt
is issued therefor, or other written proof of payment thereof that is
reasonably satisfactory to the Administrative Agent. In the case of any
payment hereunder or under the Notes or the other Loan Documents by or
on behalf of a Loan Party through an account or branch outside the
United States or by or on behalf of a Loan Party by a payor that is not
a United States person, if such Loan Party determines that no Taxes are
payable in respect thereof, such Loan Party shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such
address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 2.11, the terms "United States"
and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date
of its execution and delivery of this Agreement in the case of each
Initial Lender Party and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as reasonably requested
in writing by the Borrower (but only so long thereafter as such Lender
Party remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two original Internal
Revenue Service Forms W-8BEN or W-8EC1 or (in the case of a Lender
Party that has certified in writing to the Administrative Agent that it
is not (i) a "bank" as defined in Section 881(c)(3)(A) of the Internal
Revenue Code), (ii) a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower or
(iii) a controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Internal Revenue Code),
Internal Revenue Service Form W-8BEN, as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or
the Notes or any other Loan Document or, in the case of a Lender Party
that has certified that it is not a "bank" as described above,
certifying that such Lender Party is a foreign corporation,
partnership, estate or trust. If the forms provided by a Lender Party
at the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for
periods governed by such forms; provided, however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a
Lender Party becomes a party to this Agreement, the Lender Party
assignor was entitled to payments under subsection (a) of this Section
2.11 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender Party
46
assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information
required on the date hereof by Internal Revenue Service Form W-8BEN or
W-8EC1 or the related certificate described above, that the applicable
Lender Party reasonably considers to be confidential, such Lender Party
shall give notice thereof to the Borrower and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form, certificate
or other document described in subsection (e) above (other than if such
failure is due to a change in law, or in the interpretation or
application thereof, occurring after the date on which a form,
certificate or other document originally was required to be provided or
if such form, certificate or other document otherwise is not required
under subsection (e) above), such Lender Party shall not be entitled to
indemnification under subsection (a) or (c) of this Section 2.11 with
respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject
to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, the Loan Parties shall take such steps as
such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.11 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party,
be otherwise disadvantageous to such Lender Party.
SECTION 2.12 Sharing of Payments, Etc. If any Lender Party shall obtain
at any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes and the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes and the other Loan Documents at such time)
of payments on account of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time obtained by all the Lender Parties at
such time or (b) on account of Obligations owing (but not due and payable) to
such Lender Party hereunder and under the Notes and the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes and the other Loan Documents at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as the case may
be, as shall be necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be rescinded and
47
such other Lender Party shall repay to the purchasing Lender Party the purchase
price to the extent of such Lender Party's ratable share (according to the
proportion of (i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such recovery together
with an amount equal to such Lender Party's ratable share (according to the
proportion of (i) the amount of such other Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered provided further that, so long as the
Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate Lenders. The Borrower agrees that any Lender Party
so purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.12 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such interest or participating interest, as the case may be, as fully as if
such Lender Party were the direct creditor of the Borrower in the amount of such
interest or participating interest, as the case may be.
SECTION 2.13 Use of Proceeds. Proceeds from the Term B Facility shall
be available (and the Borrower agrees that it shall use such proceeds) solely to
pay to the holders (other than the Borrower) of the Company Stock the cash
consideration for their shares in the Merger, pay transaction fees and expenses
and refinance certain Existing Debt of the Company and the Borrower agrees that
it shall use the proceeds of the Revolving Credit Facility and issuances of
Letters of Credit solely to provide working capital and to finance general
corporate purposes (including certain permitted acquisitions) for the Borrower
and its Restricted Subsidiaries.
SECTION 2.14 Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set -off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set -off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set -off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such set-off under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
48
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set -off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set -off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.14.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to any Agent or any of the other Lender Parties and
(iii) the Borrower shall make any payment hereunder or under any other
Loan Document to the Administrative Agent for the account of such
Defaulting Lender, then the Administrative Agent may, on its behalf or
on behalf of such other Agents or such other Lender Parties and to the
fullest extent permitted by applicable law, apply at such time the
amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of
any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective
portions of such Defaulted Amounts payable at such time to the
Administrative Agent, such other Agents and such other Lender Parties
and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent, such other Agents and such other Lender
Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts
then owing to them, in their capacities as such, ratably in
accordance with such respective Defaulted Amounts then owing
to the Agents;
(ii) second, to the Issuing Bank and the Swing Line
Bank for any Defaulted Amounts then owing to them, in their
capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Bank and the Swing
Line Bank; and
(iii) third, to any other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties,
ratably in accordance with such respective Defaulted Amounts
then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe
a Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any
Agent or any other Lender Party shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the
49
account of such Defaulting Lender, then the Borrower or such Agent or
such other Lender Party shall pay such amount to the Administrative
Agent to be held by the Administrative Agent, to the fullest extent
permitted by applicable law, in escrow or the Administrative Agent
shall, to the fullest extent permitted by applicable law, hold in
escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with a bank (the
"Escrow Bank") selected by the Administrative Agent, in the name and
under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the
credit balance of such account from time to time, shall be the Escrow
Bank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held
in escrow from time to time to the extent necessary to make any
Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other
Loan Documents to the Administrative Agent or any other Lender Party,
as and when such Advances or amounts are required to be made or paid
and, if the amount so held in escrow shall at any time be insufficient
to make and pay all such Advances and amounts required to be made or
paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and
payable by such Defaulting Lender to them hereunder, in their
capacities as such, ratably in accordance with such respective
amounts then due and payable to the Agents;
(ii) second, to the Issuing Bank and the Swing Line
Bank for any amounts then due and payable to them hereunder,
in their capacities as such, by such Defaulting Lender,
ratably in accordance with such respective amounts then due
and payable to the Issuing Bank and the Swing Line Bank;
(iii) third, to any other Lender Parties for any
amount then due and payable by such Defaulting Lender to such
other Lender Parties hereunder, ratably in accordance with
such respective amounts then due and payable to such other
Lender Parties; and
(iv) fourth, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.14 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any
Defaulted Advance and that any Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
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SECTION 2.15 Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Revolving Credit Note, and a Term B Note, as
applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment and the Term B Commitment,
respectively, of such Lender Party. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 9.07(d) shall include a control account, and a
subsidiary account for each Lender Party, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing
made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent from
the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender Party
in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrower to, in the case
of the Register, each Lender Party and, in the case of such account or
accounts, such Lender Party, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent
or such Lender Party to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.16 Issuance of and Drawings and Reimbursement Under Letters
of Credit (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of Credit
(except in the case of the initial Letter of Credit, which notice shall be given
not later than 11:00 A.M. (New York City time) on the first Business Day prior
to the date of the proposed issuance of such Letter of Credit), by the Borrower
to the Issuing Bank, which shall give to the Administrative Agent and each
Revolving Credit Lender prompt notice thereof by telecopier or electronic
communication. Each such notice of issuance of a Letter of Credit (a "Notice of
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Issuance") shall be by telephone, confirmed immediately in writing, or
telecopier electronic communication, specifying therein the requested (A) date
of such issuance (which shall be a Business Day), (B) Available Amount of such
Letter of Credit, (C) expiration date of such Letter of Credit, (D) name and
address of the beneficiary of such Letter of Credit and (E) form of such Letter
of Credit, and shall be accompanied by such application and agreement for letter
of credit as the Issuing Bank may specify to the Borrower for use in connection
with such requested Letter of Credit (a "Letter of Credit Agreement"). If (x)
the requested form of such Letter of Credit is acceptable to the Issuing Bank in
its sole discretion and (y) it has not received notice of objection to such
issuance from Lenders holding at least a majority of the Revolving Credit
Commitments, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 9.02 or as otherwise agreed with
the Borrower in connection with such issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week
a written report summarizing issuance and expiration dates of Letters
of Credit issued during the previous week and drawings during such week
under all Letters of Credit, (B) to each Revolving Credit Lender on the
first Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued during the preceding
month and drawings during such month under all Letters of Credit and
(C) to the Administrative Agent and each Revolving Credit Lender on the
first Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit.
(c) Participations in Letters of Credit. Upon the issuance of
a Letter of Credit by the Issuing Bank under Section 2.16(a), the
Issuing Bank shall be deemed, without further action by any party
hereto, to have sold to each Revolving Credit Lender, and each such
Revolving Credit Lender shall be deemed, without further action by any
party hereto, to have purchased from the Issuing Bank, a participation
in such Letter of Credit in an amount for each Revolving Credit Lender
equal to such Lender's Pro Rata Share of the Available Amount of such
Letter of Credit, effective upon the issuance of such Letter of Credit.
In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay such
Lender's Pro Rata Share of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower forthwith on the date due by
making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Issuing Bank by deposit
to the Administrative Agent's Account, in same day funds, an amount
equal to such Lender's Pro Rata Share of such L/C Disbursement. Each
Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this Section 2.16(c) in respect of
Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of
the Commitments, and that each such payment shall be made without any
off-set, abatement, withholding or reduction whatsoever. Each such
purchase and advance by each Revolving Credit Lender shall constitute a
Revolving Advance. The Borrower hereby agrees to each such sale and
52
assignment. Each Revolving Credit Lender agrees to purchase its Pro
Rata Share of an outstanding L/C Disbursement on (i) such Business Day,
provided that notice of such L/C Disbursement is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such Business Day if notice of such L/C
Disbursement is given after such time. Upon any such sale by the
Issuing Bank to any other Revolving Credit Lender of a portion of an
L/C Disbursement, the Issuing Bank represents and warrants to such
other Lender that the Issuing Bank is the legal and beneficial owner of
such interest being sold by it, free and clear of any adverse claims,
but makes no other representation or warranty and assumes no
responsibility with respect to such L/C Disbursement, the Loan
Documents or any Loan Party. If and to the extent that any Revolving
Credit Lender shall not have so made the amount of such L/C
Disbursement available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from
the date such L/C Disbursement is due until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate for its
account or the account of the Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the
account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made
by such Lender on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Letter of Credit Advance made
by the Issuing Bank shall be reduced by such amount on such Business
Day.
(d) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by the Issuing Bank of a Letter
of Credit Advance, which shall be a Base Rate Advance, in the amount of
such draft.
(e) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the
date specified in Section 2.16(d) shall not relieve any other Lender of
its obligation hereunder to make its Letter of Credit Advance on such
date, but no Lender shall be responsible for the failure of any other
Lender to make the Letter of Credit Advance to be made by such other
Lender on such date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01 Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to
the extent requested by the Lenders pursuant to the terms of
Section 2.15.
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(ii) A security agreement in substantially the form
of Exhibit D hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "Security
Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,
(B) proper financing statements in form
appropriate for filing under the Uniform Commercial
Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to
perfect and protect the first priority liens and
security interests created under the Security
Agreement, covering the Collateral described in the
Security Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit and all effective financing statements
filed in the jurisdictions referred to in clause (B)
above that name any Loan Party as debtor,
(D) the Intellectual Property Security
Agreement duly executed by each Loan Party,
(E) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the security interest created thereunder,
(F) evidence of the insurance required by
the terms of the Security Agreement,
(G) the Deposit Account Control Agreements
referred to in the Security Agreement, duly executed
by the Collateral Agent, the applicable Loan Party
and the applicable deposit account bank,
(H) the Securities Account Control Agreement
referred to in the Security Agreement, duly executed
by the Collateral Agent, the applicable Loan Party
and the applicable securities intermediary,
(I) evidence that all other action that the
Administrative Agent may deem reasonably necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff
letters, UCC-3 termination statements and landlords'
and bailees' waiver and consent agreements).
54
(iii) Certified copies of the resolutions of the
Board of Directors (or other equivalent governing board) of
each Loan Party approving the Transaction and each Transaction
Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to the Transaction and each Transaction
Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of
State of the jurisdiction of incorporation or organization of
each Loan Party, dated reasonably near the date of the Initial
Extension of Credit, certifying (to the extent the following
are matters so certified by the relevant Secretary of State)
(A) as to a true and correct copy of the charter of such Loan
Party and each amendment thereto on file in such Secretary's
office and (B) that (1) such amendments are the only
amendments to such Loan Party's charter on file in such
Secretary's office, (2) such Loan Party has paid all franchise
taxes to the date of such certificate and (3) such Loan Party
is duly incorporated or organized and in good standing or
presently subsisting under the laws of the State of the
jurisdiction of its incorporation or organization.
(v) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or a Vice President
and its Secretary or any Assistant Secretary (or such other
equivalent positions), dated the date of the Initial Extension
of Credit (the statements made in which certificate shall be,
true on and as of the date of the Initial Extension of
Credit), certifying as to (A) the absence of any amendments to
the charter of such Loan Party since the date of the Secretary
of State's certificate referred to in Section 3.01(a)(iv), (B)
a true and correct copy of the bylaws, operating agreement or
partnership agreement of such Loan Party as in effect on the
date on which the resolutions referred to in Section
3.01(a)(iii) were adopted and on the date of the Initial
Extension of Credit, (C) the due incorporation or organization
and good standing or valid existence of such Loan Party as a
corporation, limited liability company or partnership
organized under the laws of the jurisdiction of its
incorporation or organization, and the absence of any
proceeding for the dissolution or liquidation of such Loan
Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of
the date of the Initial Extension of Credit and (E) the
absence of any event occurring and continuing, or resulting
from the Initial Extension of Credit, that constitutes an
Event of Default.
(vi) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to
sign each Transaction Document to which it is or is to be a
party and the other documents to be delivered hereunder and
thereunder.
(vii) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith as the Administrative Agent shall
request.
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(viii) A form of certificate of merger or other
confirmation satisfactory to the Lender Parties (the
"Certificate of Merger"), to be filed no later than one
Business Day after Closing.
(ix) Certificates in form and substance satisfactory
to the Lender Parties, attesting to the Solvency of each Loan
Party (other than Hydrocarbon Technologies, Inc.) immediately
before and after giving effect to the Transaction, from the
Borrower's Chief Financial Officer with respect to the
Borrower and its Subsidiaries (other than Hydrocarbon
Technologies, Inc.), individually and from the Company's Chief
Financial Officer with respect to the Company and its
Subsidiaries (other than Flexcrete LLC), individually.
(x) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have requested, including, without limitation,
information as to possible contingent liabilities, tax
matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with employees, reaudited
financial statements of the Borrower and its Subsidiaries for
the period ended September 30, 2001 and the financial review
of the Borrower and its Subsidiaries for the six-month period
ended March 31, 2002, interim financial statements of the
Borrower and its Subsidiaries dated the end of the most recent
fiscal quarter for which financial statements are available
(or, in the event the Lender Parties' due diligence review
reveals material changes since such financial statements, as
of a later date within 45 days of the day of the Initial
Extension of Credit), pro forma financial statements as to the
Borrower and forecasts prepared by management of the Company,
in form and substance satisfactory to the Lender Parties, of
balance sheets, income statements and cash flow statements on
a quarterly basis for the first year following the day of the
Initial Extension of Credit and on an annual basis for each
year thereafter until the Termination Date.
(xi) Evidence of insurance naming the Collateral
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Lender Parties , including, without
limitation, business interruption insurance.
(xii) A certified copy of the Material Contract.
(xiii) A Notice of Borrowing or Notice of Issuance,
as applicable, relating to the Initial Extension of Credit.
(xiv) An opinion of Pillsbury Winthrop LLP, counsel
for the Borrower and its Subsidiaries, addressed to the Agents
and the Lender Parties and in substantially the form of
Exhibit J-1 hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
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(xv) An opinion of Xxxxxxx, Xxxxx & Xxxxxxx, counsel
for the Company and its Subsidiaries, addressed to the Agents
and the Lender Parties and in substantially the form of
Exhibit J-2 hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xvi) An opinion of Xxxxxx Xxxxxxxx, internal counsel
for the Borrower and its Subsidiaries, addressed to the Agents
and the Lender Parties and in substantially the form of
Exhibit J-3 hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(b) The Lender Parties shall be reasonably satisfied with any
changes occurring on or after July 15, 2002 in the corporate and legal
structure and capitalization of each Loan Party and each of its
Subsidiaries the Equity Interests in which Subsidiaries is being
pledged pursuant to the Loan Documents, including the terms and
conditions of the charter, bylaws and each class of Equity Interest in
each Loan Party and of each agreement or instrument relating to such
structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased
in full or otherwise satisfied and extinguished and all commitments
relating thereto terminated.
(d) Before giving effect to the Transaction, there shall have
occurred no (i) Material Adverse Change and (ii) no material adverse
change in the business, condition (financial or otherwise), operations,
performance, or properties of the Company and its Subsidiaries, taken
as a whole since December 31, 2001.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or, to the Borrower's knowledge, threatened before
any Governmental Authority that (i) could be reasonably likely to have
a Material Adverse Effect or a material adverse effect on the business,
condition (financial or otherwise) operations, performance or prospects
of the Company and its Subsidiaries, taken as a whole or (ii)
materially adversely affects the Transaction.
(f) All Governmental Authorizations and third party consents
and approvals necessary in connection with the Transaction shall have
been obtained (without the imposition of any conditions that are not
acceptable to the Lender Parties) (other than any such consents and
approvals the absence of which could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the business, condition
(financial or otherwise), operations, performance or properties of the
Company and its Subsidiaries, taken as a whole) and shall remain in
effect; all applicable waiting periods in connection with the
Transaction shall have expired without any action being taken by any
competent authority, and no law or regulation shall be applicable in
the judgment of the Lender Parties, in each case that restrains,
prevents or imposes materially adverse conditions upon the Transaction
or the rights of the Loan Parties or their Subsidiaries freely to
transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.
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(g) All of the Pre-Commitment Information shall be true and
correct in all material aspects and the Lender Parties shall not have
discovered information (whether (x) through the completion by the
Lender Parties of their (i) bring-down business due diligence with
respect to the Borrower, the Company and their respective subsidiaries,
(ii) bring-down accounting due diligence with the Borrower's and the
Company's auditors and (iii) legal due diligence with respect to the
assets and businesses of the Borrower, the Company and their respective
subsidiaries (in each case in scope satisfactory to them) or (y)
otherwise which the Lender Parties reasonably believe in good faith to
be materially negative information with respect to the Transaction or
the business, condition (financial or otherwise), operations,
performance, properties or prospects of (A) the Borrower and its
subsidiaries, taken as a whole, or (B) the Company and its
subsidiaries, taken as a whole.
(h) The Borrower shall have paid all accrued fees of the
Agents and the Lender Parties and all accrued expenses of the Agents
(including the accrued fees and expenses of counsel to the
Administrative Agent and local counsel to the Lender Parties).
(i) The Merger shall have been consummated in accordance with
the terms of the Merger Agreement, without any waiver or amendment not
consented to by the Lender Parties of any term, provision or condition
set forth therein, and in compliance with all applicable laws (other
than any such violations which could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the business, condition
(financial or otherwise), operations, performance or properties of the
Company and its Subsidiaries, taken as a whole).
(j) Other than the amendment to the Merger Agreement dated as
of the date hereof, the Merger Agreement has not been amended since
July 15, 2002 and shall be in full force and effect.
(k) The Notice of Acceptance shall have been delivered to the
Depositary.
(l) The Borrower shall have received issued debentures as
consideration for the Merger in amount of not less than $20,000,000.
(m) Bank of America shall have delivered a pay-off letter in
respect of its Credit Agreement dated as of March 4, 1998 with ISG
Resources Inc., as amended and restated, within two Business Days of
the date of Closing.
SECTION 3.02 Conditions Precedent to Each Borrowing and Issuance and
Renewal. (a) The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.16(c) a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit and the right of the Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that on the date of such Borrowing
or issuance or renewal the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, Notice of Swing Line Borrowing,
Notice of Issuance or Notice of Renewal and the acceptance by the Borrower of
58
the proceeds of such Borrowing or of such Letter of Credit or the renewal of
such Letter of Credit shall constitute a representation and warranty by the
Borrower that both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct on and as of such date, before
and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and
as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date
other than the date of such Borrowing, in which case as of
such specific date; and
(ii) no Default has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom,
and the Administrative Agent shall have received such other certificates,
opinions and other documents as any Lender Party through the Administrative
Agent may reasonably request in order to confirm (i) the accuracy of the
Borrower's representations and warranties, (ii) the Borrower's timely compliance
with the terms, covenants and agreements set forth in this Agreement and (iii)
the absence of any Default.
SECTION 3.03 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation, limited liability
company or partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, (ii) is duly qualified and in good standing as a foreign
corporation, limited liability company or partnership in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed
(except for jurisdictions in which the failure to so qualify could not
reasonably be expect to result in a Material Adverse Effect) and (iii)
has all requisite corporate power and authority (including, without
limitation, all necessary Governmental Authorizations) to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully
paid and non-assessable.
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(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party (and whether such
Subsidiary is an Unrestricted Subsidiaries), showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of its Equity
Interests authorized, and the number outstanding, on the date hereof
and the percentage of each such class of its Equity Interests owned
(directly or indirectly) by such Loan Party and the number of shares
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. As of the date hereof,
all of the outstanding Equity Interests in each Loan Party's
Subsidiaries (other than the Unrestricted Subsidiaries) have been
validly issued, are fully paid and non-assessable and are owned by such
Loan Party or one or more of its Subsidiaries free and clear of all
Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan Party
of each Transaction Document to which it is or is to be a party, and
the consummation of the Transaction, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws,
(ii) violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
or require any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party, except
such contraventions, violations or conflicts which could not be
reasonably likely to have a Material Adverse Effect. No Loan Party is
in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No Governmental Authorization, and no notice to or filing
with, any Governmental Authority or any other third party is required
for (i) the due execution, delivery, recordation, filing or performance
by any Loan Party of any Transaction Document to which it is or is to
be a party, or for the consummation of the Transaction, (ii) the grant
by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens created
under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for (A) the
authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect (except those which are
60
specifically indicated on such Schedule 4.01(d) as being made after the
Initial Extension of Credit) and (B) any such consents and approvals
the absence of which could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. All
applicable waiting periods in connection with the Transaction have
expired without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions upon
the Transaction or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them. The
Merger has been consummated in accordance with the Merger Agreement and
applicable law.
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party thereto. This Agreement is, and each other
Transaction Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party thereto, enforceable against
such Loan Party in accordance with its terms, except to the extent that
such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium, or other laws of general application
relating to or affecting enforcement of creditors' rights and laws
concerning equitable remedies.
(f) Other than as disclosed on Schedule 4.01(f), there is no
action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries, including any Environmental
Action, pending or threatened before any Governmental Authority or
arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transaction.
(g) The Consolidated balance sheet of (i) the Borrower and its
Subsidiaries as of September 30, 2001 and (ii) Company and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statement of income and Consolidated statement of cash flows of (i) the
Borrower and its Subsidiaries and (ii) the Company and its Subsidiaries
in each case for the fiscal year then ended, accompanied by an
unqualified opinion of PriceWaterhouse Coopers, independent public
accountants, and the Consolidated balance sheet of (i) the Borrower and
its Subsidiaries and (ii) the Company and its Subsidiaries, in each
case as at June 30, 2002, and the related Consolidated statement of
income and Consolidated statement of cash flows of (i) the Borrower and
its Subsidiaries and (ii) the Company and its Subsidiaries, for the
nine months then ended in the case of the Borrower and its Subsidiaries
and for the six months then ended in the case of the Company and its
Subsidiaries, duly certified by the Chief Financial Officer of the
Borrower and the Company, as the case may be, copies of which have been
furnished to each Lender Party, fairly present, subject, in the case of
said balance sheets as at June 30, 2002, and said statements of income
and cash flows for the nine months and six months then ended,
respectively, to year-end audit adjustments, the Consolidated financial
condition of each of (i) the Borrower and its Subsidiaries and (ii) the
Company and its Subsidiaries as at such respective date and the
Consolidated results of operations of (i) the Borrower and its
Subsidiaries and (ii) the Company and its Subsidiaries for the period
61
ended on such respective date, all in accordance with generally
accepted accounting principles applicable in the United States of
America and applied on a consistent basis, and since (i) September 30,
2001, in the case of the Borrower and its Subsidiaries and (ii)
December 31, 2001, in the case of the Company and its Subsidiaries,
there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the Borrower
and its Subsidiaries as at June 30, 2002, and the related Consolidated
pro forma statements of income and cash flows of the Borrower and its
Subsidiaries for the nine months then ended, certified by the Chief
Financial Officer of the Borrower, copies of which have been furnished
to each Lender Party, fairly present the Consolidated pro forma
financial condition of the Borrower and its Subsidiaries as at such
date and the Consolidated and consolidating pro forma results of
operations of the Borrower and its Subsidiaries for the period ended on
such date, in each case giving effect to the Transaction, all in
accordance with GAAP.
(i) The Consolidated forecasted balance sheet, statement of
income and statement of cash flows of the Borrower and its Subsidiaries
delivered to the Lender Parties pursuant to Section 3.01(a)(xi) were
prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair in light of the conditions existing at the
time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower's reasonable estimate of its future financial
performance.
(j) After giving full effect to any cautionary language
regarding statements, estimates and projections provided by the
Borrower with respect to the Borrower's future performance, neither the
Information Memorandum nor any other information, exhibit or report
furnished by or on behalf of any Loan Party to any Agent or any Lender
Party in connection with its due diligence and/or the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements made therein
not materially misleading.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(l) No Loan Party is an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. No Loan Party 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", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended. As at the date of Closing, neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by the Borrower,
nor the consummation of the other transactions contemplated by the
Transaction Documents, will violate any provision of any such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder.
(m) After the Initial Advances, all filings and other actions
necessary or desirable to perfect and protect the security interest in
the Collateral created under the Collateral Documents have been duly
62
made or taken and are in full force and effect, and the Collateral
Documents create in favor of the Collateral Agent for the benefit of
the Secured Parties a valid and, together with such filings and other
actions, perfected first priority security interest in the Collateral
subject to Liens permitted by the Loan Documents, securing the payment
of the Secured Obligations, and all filings and other actions necessary
or advisable to perfect and protect such security interest have been
duly taken. After the Initial Advances, the Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien,
except for the liens and security interests created or permitted under
the Loan Documents.
(n) Each Loan Party is Solvent.
(o) (i) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan that could be reasonably likely to
have a Material Adverse Effect.
(ii) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) for each Plan, copies
of which have been filed with the Internal Revenue Service and
furnished to the Lender Parties, is complete and accurate and
fairly presents the funding status of such Plan, and since the
date of such Schedule B there has been no material adverse
change in such funding status.
(iii) Neither any Loan Party nor any ERISA Affiliate
has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that could reasonably be
expected to have a Material Adverse Effect.
(iv) Neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(p) Except as could not reasonably be expected to have a
Material Adverse Effect:
(i) The operations and properties of each Loan Party
comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or
costs, and, to the knowledge of the senior management of the
Loan Parties, no circumstances exist that could be reasonably
likely to (A) form the basis of an Environmental Action
against any Loan Party or any of their properties or (B) cause
any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any
Environmental Law.
(ii) To the knowledge of the senior management of the
Loan Party, none of the properties currently or formerly owned
or operated by any Loan Party is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign,
state or local list; there are no and never have been any
underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which
63
Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any
Loan Party or any of its Subsidiaries or, to the best of its
knowledge, on any property formerly owned or operated by any
Loan Party or any of its Subsidiaries; there is no asbestos or
asbestos-containing material on any property currently owned
or operated by any Loan Party or any of its Subsidiaries; and
Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries.
(iii) Neither any Loan Party nor any of its
Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible
parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous
Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries
have been disposed of in a manner not reasonably expected to
result in material liability to any Loan Party or any of its
Subsidiaries.
(q) (i) Neither any Loan Party nor any of its Subsidiaries is
party to any tax sharing agreement other than a tax sharing agreement
approved by the Required Lenders or one between Borrower and its
Restricted Subsidiaries.
(ii) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and
foreign) required to be filed and has paid all taxes shown
thereon to be due, together with applicable interest and
penalties.
(iii) Set forth on Schedule 4.01(q) hereto is a
complete and accurate list, as of the date hereof, of each
taxable year of each Loan Party and each of its Subsidiaries
and Affiliates for which Federal income tax returns have been
filed and for which the expiration of the applicable statute
of limitations for assessment or collection has not occurred
by reason of extension or otherwise (an "Open Year").
(iv) The aggregate unpaid amount, as of the date
hereof, of adjustments to the Federal income tax liability of
each Loan Party and each of its Subsidiaries and Affiliates
proposed by the Internal Revenue Service with respect to Open
Years does not exceed $250,000. No issues have been raised by
the Internal Revenue Service in respect of Open Years that, in
the aggregate, could be reasonably likely to have a Material
Adverse Effect.
(v) The aggregate unpaid amount, as of the date
hereof, of adjustments to the state, local and foreign tax
liability of each Loan Party and its Subsidiaries and
Affiliates proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to
Federal income tax returns) does not exceed $250,000. No
issues have been raised by such taxing authorities that, in
the aggregate, could be reasonably likely to have a Material
Adverse Effect.
64
(vi) The Merger will not be taxable under the
Internal Revenue Code to the Company or any of its
Subsidiaries or Affiliates.
(r) Set forth on Schedule 4.01(r) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the date hereof the obligor and the principal amount outstanding
thereunder.
(s) Set forth on Schedule 4.01(s) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
obligor and the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Liens, other than Permitted Liens, on the property
or assets of any Loan Party or any of its Subsidiaries, showing as of
the date hereof the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of such Loan
Party or such Subsidiary subject thereto.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of
its Subsidiaries on the date hereof, showing as of the date hereof the
street address, county or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party or
such Subsidiary has good, marketable and insurable fee simple title to
such real property, free and clear of all Liens, other than Permitted
Liens and Liens created or permitted by the Loan Documents.
(v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee on the date hereof and under
which such Loan Party or its Subsidiary is obligated to pay an annual
rental cost in excess of $500,000 per annum, showing as of the date
hereof the street address, lessor, lessee and expiration date. Each
such lease is the legal, valid and binding obligation of the lessor
thereof, enforceable in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors' rights
generally and as limited by laws relating to equitable remedies. The
rents related to the leases set forth on Schedule 4.01(v) are Fair
Market Rents.
(w) Set forth on Schedule 4.01(w) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses in respect
of which a Loan Party is a licensee thereof, of each Loan Party or any
of its Subsidiaries on the date hereof, showing as of the date hereof
the jurisdiction in which registered, the registration number, the date
of registration and the expiration date.
65
(y) As of the date hereof, the Material Contract has been duly
authorized, executed and delivered by all parties thereto, has not been
amended or otherwise modified, except as permitted by this Agreement,
is in full force and effect and is binding upon and enforceable against
all parties thereto in accordance with its terms, and there exists no
default under the Material Contract by any party thereto.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Certificate of Merger. File the Certificate of Merger
within one Business Day after the Closing Date.
(b) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance
with ERISA, Environmental Laws and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970,
except where the failure to do so, individually or in the aggregate,
could not reasonable be expected to result in a Material Adverse
Effect.
(c) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(d) Maintenance of Insurance. (i) Without limiting any of the
other obligations or liabilities of the Borrower under this Agreement,
the Borrower shall, during the term of this Agreement, carry and
maintain, at its own expense, at least the minimum insurance coverage
set forth in this Section 5.01(d)(i). All insurance carried pursuant to
this Section 5.01(d)(i) shall be placed with such insurers having a
minimum A.M. Best rating of A:X, or as may be otherwise acceptable to
the Administrative Agent. Such insurance shall be in such form, with
terms, conditions, limits and deductibles as shall be reasonably
acceptable to the Administrative Agent.
(A) All Risk Property Insurance. The Borrower shall
maintain all risk property insurance covering against physical
loss or damage, including but not limited to fire and extended
coverage, collapse, flood, earth movement and comprehensive
66
boiler and machinery coverage (including electrical
malfunction and mechanical breakdown). Coverage shall be
written on a replacement cost basis. Such insurance policy
shall contain an agreed amount endorsement waiving any
coinsurance penalty and shall include expediting expense
coverage; and
(B) Commercial General Liability Insurance. The
Borrower shall maintain commercial general liability insurance
written on an occurrence basis with a limit of not less than
$1,000,000. Such coverage shall include, but not be limited
to, premises/operations, explosion, collapse, underground
hazards, contractual liability, independent contractors,
products/completed operations, property damage and personal
injury liability. Such insurance shall not contain an
exclusion for punitive or exemplary damages where insurable by
law; and
(C) Workers' Compensation/Employer's Liability. The
Borrower shall maintain Workers' Compensation insurance in
accordance with statutory provisions covering accidental
injury, illness or death of an employee of the Borrower while
at work or in the scope of his employment with the Borrower
and Employer's Liability in an amount not less than
$1,000,000. Such coverage shall not contain any occupational
disease exclusions; and
(D) Automobile Liability. The Borrower shall maintain
Automobile Liability insurance covering owned, non-owned,
leased, hired or borrowed vehicles against bodily injury or
property damage. Such coverage shall have a limit of not less
than $1,000,000;
(E) Excess/Umbrella Liability. The Borrower shall
maintain excess or umbrella liability insurance in an amount
not less than $10,000,000 and cause that Public Sub shall
maintain excess or umbrella liability insurance in an amount
not less than $50,000,000 written on an occurrence basis
providing coverage limits excess of the insurance limits
required under sections (i)(B), (i)(C) employer's liability
only, and (i)(D). Such insurance shall follow form the primary
insurances and drop down in case of exhaustion of underlying
limits and/or aggregates. Such insurance shall not contain an
exclusion for punitive or exemplary damages where insurable
under law.
(ii) The Borrower shall cause all insurance
policies carried and maintained in accordance with
Section 5.01(d)(i) to be endorsed as follows:
(A) The Borrower shall be the named insured and the
Agents and Lenders shall be additional insureds with the
Administrative Agent as loss payee with respect to policies
described in subsection (i)(A). The Borrower shall be the
named insured and the Agents and the Lenders shall be
additional insureds with respect to policies described in
subsections (i)(B), (i)(C) to the extent allowed by law,
(i)(D), and (i)(E). It shall be understood that any obligation
imposed upon the Borrower, including but not limited to the
obligation to pay premiums, shall be the sole obligation of
the Borrower and not that of the Agents or the Lenders; and
67
(B) with respect to policies described in subsections
(i)(A), the interests of the Agents and Lenders shall not be
invalidated by any action or inaction of the Borrower, or any
other Person, and shall insure the Agent and Lenders under a
standard mortgagee or lenders loss payable clause; and
(C) inasmuch as the liability policies are written to
cover more than one insured, all terms conditions, insuring
agreements and endorsements, with the exception of the limits
of liability, shall operate in the same manner as if there
were a separate policy covering each insured; and
(D) the insurers thereunder shall waive all rights of
subrogation against the Agents and Lenders any right of setoff
or counterclaim and any other right to deduction, whether by
attachment or otherwise; and
(E) such insurance shall be primary without right of
contribution of any other insurance carried by or on behalf of
the Agents and Lenders with respect to this loan; and,
(F) if such insurance is canceled for any reason
whatsoever, including nonpayment of premium, or any changes
are initiated by the Borrower or carrier which affect the
interests of the Agents and Lenders, such cancellation or
change shall not be effective as to the Agent and Lenders
until thirty (30) days, except for non-payment of premium
which shall be ten (10) days, after written notice sent by
first class U.S. mail from such insurer to the Administrative
Agent.
(iii) On the Effective Date, and at each
policy renewal, but not less than annually, Borrower
shall provide to the Administrative Agent approved
certification from each insurer or by an authorized
representative of each insurer. Such certification
shall identify the underwriters, the type of
insurance, the limits, deductibles, and term thereof
and shall specifically list the special provisions as
delineated in paragraph (ii) above for such insurance
required by Section 5.01(d)(i).
(iv) Concurrently with the furnishing of all
certificates referred to in Section 5.01(d)(iii),
Borrower shall furnish the Administrative Agent with
an opinion from an independent insurance broker, in
form acceptable to the broker and the Administrative
Agent, stating that as of the date of the opinion (1)
the insurance policies listed with the broker's
opinion are in full force and effect; (2) the broker
has not received any notice of cancellation or
non-renewal with respect to the listed policies and
is not aware of any circumstances which would make
the giving of such a notice by an insurer likely; (3)
in the broker's view, based upon the broker's
understanding of this Section 5.01(d), the policies
listed with the broker's opinion are consistent with
the minimum requirements of this Section 5.01(d); and
(4) based upon the broker's experience, the coverages
provided by the policies listed with the opinion are
consistent with those normally provided to companies
similarly situated to the Borrower and Public Sub.
(v) The Administrative Agent shall be
entitled, upon reasonable advance notice, to review
the Borrower's books and records regarding all
insurance policies carried and maintained with
68
respect to the Borrower's obligations under this
Section 5.01(d). Upon request, the Borrower shall
furnish the Administrative Agent with copies of all
insurance policies, binders, and cover notes or other
evidence of such insurance. Notwithstanding anything
to the contrary herein, no provision of this Section
5.01(d) or any provision of this Agreement shall
impose on the Administrative Agent any duty or
obligation to verify the existence or adequacy of the
insurance coverage maintained by the Borrower, nor
shall the Administrative Agent be responsible for any
representations or warranties made by or on behalf of
the Borrower to any insurance broker, company or
underwriter. The Administrative Agent, at its sole
option, may obtain such insurance if not provided by
the Borrower and in such event, the Borrower shall
reimburse the Administrative Agent upon demand for
the cost thereof together with interest.
(e) Preservation of Corporate Existence, Etc. Without limiting
the exceptions set forth in Section 5.02(d), preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that
the Borrower may consummate the Merger; provided further that neither
the Borrower nor any of its Subsidiaries shall be required to preserve
any right, permit, license, approval, privilege or franchise if the
Board of Directors of the Borrower or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower or such Subsidiary, as the case may be,
and that the loss thereof is not disadvantageous in any material
respect to the Borrower, such Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time during ordinary
business hours and from time to time upon reasonable prior notice,
permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants; provided, however, that any such visitation or
inspection by a Lender Party other than the Administrative Agent shall
be coordinated by (any request for such a visit or inspection shall be
presented through) the Administrative Agent; provided, further, that,
in connection with any such visitation or inspection, the Lender
Parties and the Agents agree to comply with and adhere to all
applicable laws, rules and regulations governing site visitations and
inspections (including, without limitation, applicable health and
safety regulations and visitation and inspection rules mandated by the
owner or operator of applicable property).
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect in the United States
of America from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
69
good working order and condition, ordinary wear and tear excepted,
except in those circumstances where in the reasonable business judgment
of the Borrower such properties need not be so maintained or preserved
and will from time to time make or cause to be made all appropriate
repairs, renewals and replacements thereof except where failure to do
so would not have a Material Adverse Effect.
(i) Transactions with Affiliates. Except as set forth on
Schedule 5.01(i), conduct, and cause each of its Subsidiaries to
conduct, all transactions otherwise permitted under the Loan Documents
with any of their Affiliates that is not either the Borrower or a
Restricted Subsidiary on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Collateral Agent following the occurrence and
during the continuance of a Default, (y) the formation or acquisition
of any new direct or indirect Subsidiaries by any Loan Party or (z) the
acquisition of any property by any Loan Party, and such property, in
the judgment of the Collateral Agent, shall not already be subject to a
perfected first priority security interest in favor of the Collateral
Agent for the benefit of the Secured Parties, then in each case at the
Borrower's expense:
(i) in connection with the formation or acquisition
of a Subsidiary that is not (x) designated an Unrestricted
Subsidiary at the time of its formation or acquisition, (y) a
CFC or (z) a Subsidiary that is held directly or indirectly by
a CFC, within 30 days after such formation or acquisition,
cause each such Subsidiary, and cause each direct and indirect
parent of such Subsidiary (if it has not already done so), to
duly execute and deliver to the Collateral Agent a guaranty or
guaranty supplement, in form and substance reasonably
satisfactory to the Collateral Agent, guaranteeing the other
Loan Parties' obligations under the Loan Documents,
(ii) within 30 days after (A) such request furnish to
the Collateral Agent a description of the real and personal
properties of the Loan Parties in detail reasonably
satisfactory to the Collateral Agent and (B) such formation or
acquisition (other than the formation or acquisition of a
Subsidiary that is designated an Unrestricted Subsidiary at
the time of its formation or acquisition or a CFC or a
Subsidiary held directly or indirectly by a CFC), furnish to
the Collateral Agent a description of the real and personal
properties of such Subsidiary or the real and personal
properties so acquired, in each case in detail reasonably
satisfactory to the Collateral Agent,
(iii) within 60 days after (A) such request or
acquisition of property by any Loan Party, duly execute and
deliver, and cause each Loan Party to duly execute and
deliver, to the Collateral Agent such additional mortgages,
pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other
security agreements as specified by, and in form and substance
satisfactory to the Collateral Agent, securing payment of all
the Obligations of such Loan Party under the Loan Documents
and constituting Liens on all such properties and (B) such
formation or acquisition of any new Subsidiary (other than the
formation or acquisition of a Subsidiary that is designated an
70
Unrestricted Subsidiary at the time of its formation or
acquisition or a CFC or a Subsidiary held directly or
indirectly by a CFC), duly execute and deliver and cause each
Subsidiary to duly execute and deliver to the Collateral Agent
mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and other security agreements as specified by, and
in form and substance reasonably satisfactory to the
Collateral Agent, securing payment of all of the obligations
of such Subsidiary under the Loan Documents; provided that (A)
the stock of any Subsidiary held by a CFC shall not be pledged
and (B) if such new property is Equity Interests in a CFC,
only 66% of such Equity Interests shall be pledged in favor of
the Secured Parties,
(iv) within 60 days after such request, formation or
acquisition, take, and cause each Loan Party and each newly
acquired or newly formed Subsidiary (other than any Subsidiary
that is (x) designated an Unrestricted Subsidiary at the time
of its formation or acquisition, (y) a CFC or (z) a Subsidiary
that is held directly or indirectly by a CFC) to take,
whatever reasonable action (including, without limitation, the
recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the
endorsement of notices on title documents) may be reasonably
necessary or advisable in the opinion of the Collateral Agent
to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the
mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in
accordance with their terms,
(v) within 60 days after any such request, formation
or acquisition, deliver to the Collateral Agent, upon the
request of the Collateral Agent in its sole discretion, a
signed copy of an opinion, addressed to the Collateral Agent
and the other Secured Parties, of counsel for the Loan Parties
reasonably acceptable to the Collateral Agent as to (1) the
matters contained in clauses (i), (iii) and (iv) above, (2)
such guaranties, guaranty supplements, mortgages, pledges,
assignments, security agreement supplements, intellectual
property security agreement supplements and security
agreements being legal, valid and binding obligations of each
Loan Party thereto enforceable in accordance with their terms,
as to the matters contained in clause (iv) above, (3) such
recordings, filings, notices, endorsements and other actions
being sufficient to create valid perfected Liens on such
properties, and (4) such other matters as the Collateral Agent
may reasonably request,
(vi) as promptly as practicable after any such
request, formation or acquisition, deliver, upon the request
of the Collateral Agent in its sole discretion, to the
Collateral Agent with respect to each parcel of real property
owned or held by each Loan Party and each newly acquired or
newly formed Subsidiary (other than any Subsidiary that (x)
designated an Unrestricted Subsidiary at the time of its
formation or acquisition, (y) is a CFC or (z) a Subsidiary
that is held directly or indirectly by a CFC) title reports,
surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and
substance reasonably satisfactory to the Collateral Agent,
provided, however, that to the extent that any Loan Party or
any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered
to the Collateral Agent, and
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(vii) at any time and from time to time, promptly
execute and deliver, and cause to execute and deliver, each
Loan Party and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is (x) designated an
Unrestricted Subsidiary at the time of its formation or
acquisition, (y) a CFC or (z) a Subsidiary that is held
directly or indirectly by a CFC) any and all further
instruments and documents and take, and cause each Loan Party
and each newly acquired or newly formed Subsidiary (other than
(x) designated an Unrestricted Subsidiary at the time of its
formation or acquisition, (y) any Subsidiary that is a CFC or
(z) a Subsidiary that is held directly or indirectly by a CFC)
to take, all such other action as the Collateral Agent may
deem reasonably necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of,
such guaranties, mortgages, pledges, assignments, security
agreement supplements, intellectual property security
agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by any
Agent, or any Lender Party through the Administrative Agent, correct,
and cause each of its Subsidiaries promptly to correct, any material
defect or error that may be discovered in any Collateral Document or in
the execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further reasonable
acts, deeds, conveyances, pledge agreements, mortgages, deeds
of trust, trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time
in order to (A) carry out more effectively the purposes of the
Loan Documents, (B) to the fullest extent permitted by
applicable law, subject any Loan Party's or any of its
Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents
and any of the Liens intended to be created thereunder and (D)
assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the
Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.
(l) Performance of Related Documents. Perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms
and provisions of each Related Document to be performed or observed by
it, maintain each such Related Document in full force and effect,
enforce such Related Document in accordance with its terms, take all
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such action to such end as may be from time to time reasonably
requested by the Administrative Agent and, upon the reasonable request
of the Administrative Agent, make to each other party to each such
Related Document such reasonable demands and requests for information
and reports or for action as any Loan Party or any of its Subsidiaries
is entitled to make under such Related Document.
(m) Preparation of Environmental Reports. At the request of
the Administrative Agent at any time that the Administrative Agent, in
its reasonable judgment, believes that the prospect of payment of the
Obligations of the Loan Parties under the Loan Documents in the normal
course is impaired (but in no event more than one in any two year
period, unless an Event of Default has occurred and is continuing),
provide to the Lender Parties within 120 days after such request, at
the expense of the Borrower, an environmental site assessment report
for any of its or its Subsidiaries' owned properties described in such
request, prepared by an environmental consulting firm reasonably
acceptable to the Administrative Agent or the Collateral Agent,
indicating the presence or absence of Hazardous Materials; without
limiting the generality of the foregoing, if the Administrative Agent
or the Collateral Agent determines at any time that a material risk
exists that any such report will not be provided within the time
referred to above, the Administrative Agent or the Collateral Agent may
retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and the Borrower hereby grants and agrees to
cause any Subsidiary that owns any property described in such request
to grant at the time of such request to the Agents, the Lender Parties,
such firm and any agents or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter onto
their respective properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any default
by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect.
(o) Interest Rate Hedging. Enter into prior to 90 days after
Closing, and maintain at all times thereafter, interest rate Hedge
Agreements with Persons acceptable to the Administrative Agent,
covering a notional amount of not less than 50% of the Commitments
under all of the Facilities or such other level acceptable to the
Administrative Agent.
(p) Performance of Material Contract. Perform and observe all
the terms and provisions of the Material Contract to be performed or
observed by it, maintain the Material Contract in full force and
effect, enforce the Material Contract in accordance with its terms and,
upon the reasonable request of the Administrative Agent, make to each
other party to the Material Contract such demands and requests for
information and reports or for action as any Loan Party or any of its
Subsidiaries is entitled to make under the Material Contract, and cause
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each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, could would
not be reasonably likely to have a Material Adverse Effect; provided,
however, that a termination of the Material Contract shall not
constitute a breach of this Section 5.01(o) unless the Borrower shall
not have entered into a substitute contract with a third party
acceptable to the Administrative Agent within 60 days of such
termination.
(q) Real Property. Within 60 days following the date of the
Initial Extension of Credit, the Administrative Agent shall have
received deeds of trust, trust deeds and mortgages in substantially the
form of Exhibit G hereto (with such changes as may be required to
account for local law matters) or otherwise in form and substance
reasonably satisfactory to the Administrative Agent and covering the
owned properties listed on Schedule 4.01(q) hereto with an individual
book value in excess of $500,000 (together with each other mortgage
delivered pursuant to Section 5.01(j), in each case as amended, the
"Mortgages"), duly executed by the appropriate Loan Party, together
with:
(A) evidence that counterparts of the Mortgages have
been duly recorded within 60 days following the day of the
Initial Extension of Credit in all filing or recording offices
that the Administrative Agent may deem necessary or desirable
in order to create a valid first and subsisting Lien on the
property described therein in favor of the Collateral Agent
for the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid American Land Title Association
Lender's Extended Coverage title insurance policies (the
"Mortgage Policies") in form and substance, with endorsements
and in amount reasonably acceptable to the Administrative
Agent, issued and reinsured by title insurers reasonably
acceptable to the Administrative Agent, insuring the Mortgages
to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including,
but not limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Encumbrances, and
providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and
for mechanics' and materialmen's Liens),
(C) American Land Title Association form surveys,
dated no more than 60 days after the date of the Initial
Extension of Credit, certified to the Administrative Agent and
the issuer of the Mortgage Policies in a manner satisfactory
to the Administrative Agent by a land surveyor duly registered
and licensed in the States in which the property described in
such surveys is located and acceptable to the Administrative
Agent, showing all buildings and other improvements, any
off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other
dimensional regulations and the absence of encroachments,
either by such improvements or on to such property, and other
defects, other than encroachments and other defects acceptable
to the Administrative Agent; provided, however, that with
respect to the property indicated with a "+" on Schedule
4.01(u), the form survey previously received on March 18, 2002
need only be delivered to the Administrative Agent; provided,
74
further that with respect to the properties indicated with a
"*" on Schedule 4.01(u), only "drive-by" surveys need be
obtained to update the surveys previously received with
respect to such properties,
(D) such consents and agreements of lessors and other
third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may deem necessary
or desirable,
(E) evidence of the insurance required by the terms
of the Mortgages,
(F) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order
to create valid first and subsisting Liens on the property
described in the Mortgages has been taken,
(G) opinions of local counsel for the Loan Parties in
states in which the Properties are located, with respect to
the enforceability and perfection of the Mortgages and any
related fixture filings substantially in the form of Exhibit K
hereto, and otherwise in form and substance satisfactory to
the Administrative Agent.
(r) Bank Accounts. (i) Within 30 days following the date of
the Initial Extension of Credit, close the Company's securities account
(Account No. 875708) with Banc of America Securities LLC.
(ii) Within 10 Business Days following the date of
the Initial Extension of Credit, close (A) Best Masonry & Tool
Supply, Inc.'s deposit account with Branch Banking and Trust
Company (Account No. 5140720668), (B) Xxxxx X. Xxxxxxx, Inc.'s
deposit account with Bank of Orange County (Account No.
21539471), and (C) United Terrazzo Supply Co.'s deposit
account with Ban of Orange County.
(iii) Permit only the Borrower's shares purchased or
issued by the Borrower for use under the Borrower's Employee
Stock Purchase Plan to be held in its UBS Xxxxx Xxxxxx, Inc.
securities account, with no other Investments or amounts.
SECTION 5.02 Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now
owned or hereafter acquired, or sign or file or suffer to exist, or
permit any of its Restricted Subsidiaries to sign or file or suffer to
exist, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Borrower or any of its Subsidiaries
as debtor, or sign or suffer to exist, or permit any of its Restricted
75
Subsidiaries to sign or suffer to exist, any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Restricted Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule 4.01(v) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property
or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (iv) shall not exceed the amount
permitted under Section 5.02(b)(ii)(C) at any time
outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(ii)(D); provided that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases; and
(vi) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer
to exist, any Debt, except:
(i) in the case of the Borrower, Debt in respect of
Hedge Agreements designed to hedge against fluctuations in
interest rates or foreign exchange rates incurred in the
ordinary course of business and consistent with reasonable
business practice, and
(ii) in the case of any Loan Party:
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(A) Debt owed to the Borrower or to any
other Loan Party, provided that, in each case, such
Debt (x) shall constitute Pledged Debt, (y) shall be
on terms acceptable to the Administrative Agent and
(z) shall be evidenced by promissory notes in form
and substance satisfactory to the Administrative
Agent and such promissory notes shall be pledged as
security for the Obligations of the holder thereof
under the Loan Documents to which such holder is a
party and delivered to the Collateral Agent pursuant
to the terms of the Security Agreement;
(B) Debt under the Loan Documents;
(C) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate,
on a Consolidated basis, $5,000,000 at any time
outstanding;
(D) Capitalized Leases not to exceed in the
aggregate, on a Consolidated basis, $5,000,000 at any
time outstanding;
(E) the Surviving Debt;
(F) unsecured Debt incurred in the ordinary
course of business for the deferred purchase price of
property or services, aggregating, on a Consolidated
basis, not more than $5,000,000 at any one time
outstanding;
(G) Debt of a Subsidiary acquired as
permitted in accordance with Section 5.02(f)(vii)
hereof so long as (x) such Debt was in existence at
the time of acquisition and was not incurred in
connection with such acquisition and (y) the
aggregate principal amount of all such Debt
outstanding at any time shall not exceed $25 million;
(H) Debt in respect of take or pay contracts
entered into by the Borrower and its Restricted
Subsidiaries in the ordinary course of business and
consistent with past practices; and
(I) Debt in respect of the Mezzanine
Facility not to exceed a principal amount, in the
aggregate, of $20,000,000, plus pay-in-kind interest
accruing in accordance with the terms of the
Mezzanine Facility as in effect on the date hereof.
(c) Change in Nature of Business. Make, or permit any of its
Restricted Subsidiaries to make, any material change in the nature of
its business as carried on at the date hereof and as currently proposed
to be conducted as more fully described in the Information Memorandum.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that:
77
(i) the Borrower and its Restricted Subsidiaries may
consummate the Merger;
(ii) any Restricted Subsidiary of the Borrower may
merge into or consolidate with any other Restricted Subsidiary
of the Borrower, provided that, in the case of any such merger
or consolidation, the Person formed by such merger or
consolidation shall be a wholly owned Restricted Subsidiary of
the Borrower, provided further that, in the case of any such
merger or consolidation to which a Subsidiary Guarantor is a
party, the Person formed by such merger or consolidation shall
be a Subsidiary Guarantor;
(iii) in connection with any acquisition permitted
under Section 5.02(f), any Restricted Subsidiary of the
Borrower may merge into or consolidate with any other Person
or permit any other Person to merge into or consolidate with
it; provided that the person surviving such merger shall be a
wholly owned Restricted Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation
to which a Subsidiary Guarantor is a party, the Person formed
by such merger or consolidation shall be a Subsidiary
Guarantor; and
(iv) any Loan Party may merge into the Borrower;
provided, however, that in each case, immediately before and after
giving effect thereto, no Default shall have occurred and be continuing
and, in the case of any such merger to which the Borrower is a party,
the Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except:
(i) sales of Inventory in the ordinary course of its
business and the granting of any option or other right to
purchase, lease or otherwise acquire Inventory in the ordinary
course of its business;
(ii) sales or grants of exclusive and non-exclusive
licenses of intellectual property entered into in the ordinary
course of business;
(iii) (A) sales, transfers or other dispositions of
assets among the Loan Parties (including, without limitation
sales, transfers or other dispositions, with or without
consideration, of intellectual property among the Loan
Parties) and (B) transfer of assets set forth on Schedule
5.02(e) by the Loan Parties to Flexcrete LLC;
(iv) sales, transfers or other dispositions of assets
for cash and for fair value in an aggregate amount not to
exceed $75 million (including, without limitation, Equity
Interests in Subsidiaries but excluding any original issuances
of stock of any Subsidiary) so long as (x) no Default shall
have occurred and be continuing or would result from such sale
and (y) the Net Cash Proceeds from such sale, transfer or
disposition are applied as set forth in Section 2.05(b)(ii);
and
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(v) sales of assets for cash proceeds in an aggregate
amount of $1,000,000 annually so long as no Default shall have
occurred and be continuing or would result from such sale (the
proceeds from such sale not being subject to the mandatory
prepayment provisions set forth in Section 2.05(b)).
(f) Investments in Other Persons. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any
Person, except:
(i) (A) equity Investments by the Borrower and its
Restricted Subsidiaries in their Subsidiaries outstanding on
the date hereof, (B) additional equity Investments in Loan
Parties and (C) additional Investments in wholly owned
Subsidiaries that are not Loan Parties in an aggregate amount
invested (together with the aggregate amount invested pursuant
to clause (vii) below) from the date hereof not to exceed the
sum of (x) $10,000,000, (y) the aggregate amount of cash
received (up to the aggregate amount of Investments in
Unrestricted Subsidiaries made by the Loan Parties prior to
the date of receipt of such cash) by the Loan Parties from
Unrestricted Subsidiaries from the repayment or prepayment of
any Debt owed by an Unrestricted Subsidiary or as a dividend
or distribution in respect of the Equity Interests of an
Unrestricted Subsidiary and (z) the aggregate amount of Excess
Cash Flow not required to prepay the Advances pursuant to the
provisions of Section 2.05(b)(i) (provided that such
$10,000,000 limit shall not include contributions by the
Borrower of its common stock to any wholly owned Subsidiary
that is not a Loan Party);
(ii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Restricted
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(iii) Investments by the Borrower in Cash
Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(x) hereto;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b); and
(vii) the purchase or other acquisition of all of the
Equity Interests in, or all or substantially all of the
property and assets of, any Person that, upon the consummation
thereof, will be wholly owned directly by the Borrower or one
or more of its wholly owned Restricted Subsidiaries
(including, without limitation, as a result of a merger or
consolidation); provided that, with respect to each purchase
or other acquisition made pursuant to this clause (vii):
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(A) any such newly created or acquired
Subsidiary shall either be designated an Unrestricted
Subsidiary at the time of its creation or acquisition
or comply with the requirements of Section 5.01(i);
(B) the lines of business of the Person to
be (or the property and assets of which are to be) so
purchased or otherwise acquired shall be
substantially the same lines of business as one or
more of the principal businesses of the Borrower and
its Subsidiaries in the ordinary course or reasonably
related thereto;
(C) such purchase or other acquisition shall
not include or result in any contingent liabilities
that could reasonably be expected to be material to
the business, financial condition, operations or
prospects of the Borrower and its Restricted
Subsidiaries, taken as a whole (as determined in good
faith by the board of directors of the Borrower);
(D) the total cash and noncash consideration
(including, without limitation, the fair market value
of all Equity Interests issued or transferred to the
sellers thereof (other than consideration consisting
of common stock of the Borrower in connection with an
Investment made by an Unrestricted Subsidiary), all
indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to
be paid under noncompete, consulting and other
affiliated agreements with, the sellers thereof, all
write-downs of property and assets and reserves for
liabilities with respect thereto and all assumptions
of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the
Borrower and its Restricted Subsidiaries for any such
purchase or other acquisition, when aggregated with
the total cash and noncash consideration paid by or
on behalf of the Borrower and its Restricted
Subsidiaries for all other purchases and other
acquisitions made by the Borrower and its Restricted
Subsidiaries pursuant to this clause (vii) (together
with the aggregate amount invested under Section
5.02(f)(i)(C)) from the date hereof, shall not exceed
the sum of (i) $10,000,000, (y) the aggregate amount
of cash received (up to the aggregate amount of
Investments in Unrestricted Subsidiaries made by the
Loan Parties prior to the date of receipt of such
cash) by the Loan Parties from Unrestricted
Subsidiaries from the repayment or prepayment of any
Debt owed by an Unrestricted Subsidiary or as a
divided or distribution in respect of the Equity
Interests of an Unrestricted Subsidiary and (z) the
aggregate amount of Excess Cash Flow not required to
prepay the Advances pursuant to the provisions of
Section 2.05(b)(i);
(E) (1) immediately before such purchase or
acquisition, the entity being purchased or acquired
shall be EBITDA positive; (2) immediately before and
immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have
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occurred and be continuing, (3) immediately after
giving effect to such purchase or other acquisition,
the Borrower and its Restricted Subsidiaries shall be
in pro forma compliance with all of the covenants set
forth in Section 5.04, such compliance to be
determined on the basis of the financial statements
most recently delivered pursuant to Section 5.03 most
recently delivered to the Administrative Agent and
the Lender Parties as though such purchase or other
acquisition had been consummated as of the first day
of the fiscal period covered thereby, (4) the Total
Leverage Ratio of the Borrower and its Restricted
Subsidiaries, taken as a whole, will be reduced as a
result of such purchase or acquisition; and (5) any
debt assumed in connection with such purchase or
acquisition shall be subordinated to the Facilities
and, when aggregated with the total debt assumed by
the Borrower in connection with all other purchases
and acquisitions made by the Borrower and its
Restricted Subsidiaries pursuant to this clause
(vii), shall not exceed $25,000,000; and
(F) the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lender
Parties, at least five Business Days prior to the
date on which any such purchase or other acquisition
is to be consummated, a certificate of a Responsible
Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying
that all of the requirements set forth in this clause
(vii) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other
acquisition.
Notwithstanding the foregoing, it is understood that no
proceeds of any Advance will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Interests now or hereafter outstanding, return any capital
to its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such or permit any of its Restricted
Subsidiaries to do any of the foregoing, or permit any of its
Restricted Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Equity Interests in the Borrower or to
issue or sell any Equity Interests therein, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:
(i) the Borrower may declare and pay dividends and
distributions payable only in common stock of the Borrower;
and
(ii) any Restricted Subsidiary of the Borrower may
(A) declare and pay cash dividends to the Borrower, (B)
declare and pay cash dividends to any other Loan Party and (C)
accept capital contributions from any Loan Party.
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Nothing in this Section 5.02(g) shall prohibit any transaction
permitted by Section 5.02(e).
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Restricted Subsidiaries to amend, its certificate of
incorporation or bylaws or other constitutive documents other than
amendments that could not be reasonably expected to have a Material
Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in Fiscal Year,
or any accounting policies or reporting practices, in any material
respect, except as required or permitted by generally accepted
accounting principles, as in effect in the United States of America
from time to time.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt for Borrowed Money, except (i) the prepayment of the
Advances in accordance with the terms of this Agreement, (ii) regularly
scheduled required repayments or optional redemptions of Surviving
Debt, (iii) payments of scheduled interest in respect of the Debt under
the Mezzanine Facility, and (iv) prepayments of the Debt in respect of
the Mezzanine Facility with up to 50% of the Net Cash Proceeds from the
sale or issuance by the Borrower or any of its Restricted Subsidiaries
of any Equity Interests during the first six months following the
Closing Date, or amend, modify or change in any manner any term or
condition of any Subordinated Debt or Surviving Debt, or permit any of
its Restricted Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to the Borrower.
(k) Amendment, Etc., of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any
Related Document or take any other action in connection with any
Related Document that would impair the value of the interest or rights
of any Loan Party thereunder or that would impair the rights or
interests of any Agent or any Lender Party, or permit any of its
Restricted Subsidiaries to do any of the foregoing, except in each case
as could not reasonably be expected to have a Material Adverse Effect.
(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Restricted Subsidiaries to enter into or suffer to exist,
any agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) in connection with (A) any Surviving Debt, (B)
any purchase money Debt permitted by Section 5.02(b)(ii)(B) solely to
the extent that the agreement or instrument governing such Debt
82
prohibits a Lien on the property acquired with the proceeds of such
Debt or (C) any Capitalized Lease permitted by Section 5.02(b)(ii)(C)
solely to the extent that such Capitalized Lease prohibits a Lien on
the property subject thereto, or (D) any Debt outstanding on the date
any Restricted Subsidiary of the Borrower becomes such a Restricted
Subsidiary (so long as such agreement was not entered into solely in
contemplation of such Restricted Subsidiary becoming a Restricted
Subsidiary of the Borrower).
(m) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Restricted Subsidiaries to do so, other than any Restricted Subsidiary
the sole assets of which consist of its interest in such partnership or
joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Restricted Subsidiaries to engage, in any transaction involving
commodity options or futures contracts or any similar speculative
transactions, except for take or pay contracts entered in the ordinary
course of business and consistent with past practices.
(o) Capital Expenditures. Make, or permit any of its
Restricted Subsidiaries to make, any Capital Expenditures that would
cause the aggregate of all such Capital Expenditures made by the
Borrower and its Restricted Subsidiaries in any year to exceed
$15,000,000.
(p) Formation of Subsidiaries. Organize or invest, or permit
any of its Restricted Subsidiaries to organize or invest, in any new
Subsidiary other than as permitted under Section 5.02(f) hereof.
(q) Payment Restrictions Affecting Restricted Subsidiaries.
Directly or indirectly, enter into or suffer to exist, or permit any of
its Restricted Subsidiaries to enter into or suffer to exist, any
agreement or arrangement limiting the ability of any of its Restricted
Subsidiaries to declare or pay dividends or other distributions in
respect of its Equity Interests or repay or prepay any Debt owed to,
make loans or advances to, or otherwise transfer assets to or invest
in, the Borrower or any Restricted Subsidiary of the Borrower (whether
through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except (i) the Loan
Documents and (ii) any agreement or instrument evidencing Surviving
Debt.
(r) Amendment, Etc., of Material Contract. Cancel or terminate
the Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify the Material Contract or
give any consent, waiver or approval thereunder, waive any default
under or breach of the Material Contract, agree in any manner to any
other amendment, modification or change of any term or condition of the
Material Contract or take any other action in connection with the
Material Contract that would materially impair the value of the
interest or rights of any Loan Party thereunder or that would
materially impair the interest or rights of any Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing,
provided that a termination of the Material Contract shall not
constitute a breach of this Section 5.02(r) unless the Borrower shall
not have entered into a substitute contract with a third party
acceptable to the Administrative Agent within 60 days of such
termination.
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SECTION 5.03 Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default Notice. As soon as possible and in any event
within two Business Days after the occurrence of each Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of
the Chief Financial Officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and proposes to
take with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and
Consolidated and consolidating statements of income and Consolidated
and Consolidating statements of cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case accompanied by an
unqualified opinion reasonably acceptable to the Required Lenders of
PriceWaterhouseCoopers or other independent public accountants of
recognized standing reasonably acceptable to the Administrative Agent,
together with (i) a certificate of such accounting firm to the Lender
Parties stating that in the course of the regular audit of the business
of the Borrower and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Section 5.04, provided that in the event of any
change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP and (iii) a certificate of the Chief Financial
Officer of the Borrower stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement
as to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto, provided, that, each
consolidating balance sheet, consolidating statement of income and
consolidating statement of cash flow to be delivered under this Section
5.03(b) shall distinguish between the Restricted Subsidiaries and
Unrestricted Subsidiaries of the Borrower.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated and consolidating statements of income and Consolidated
and consolidating statements of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
84
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding date or period of
the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer of the Borrower as having been prepared in accordance with
GAAP, together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto
and (ii) a schedule in form satisfactory to the Administrative Agent of
the computations used by the Borrower in determining compliance with
the covenants contained in Section 5.04, provided that in the event of
any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP, provided that each consolidating balance sheet,
consolidating statement of income and consolidating statement of cash
flow to be delivered under this Section 5.03(c) shall distinguish
between the Restricted Subsidiaries and Unrestricted Subsidiaries of
the Borrower.
(d) Annual Forecasts. As soon as available and in any event no
later than 15 days before the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent, of balance sheets, income statements and cash
flow statements of the Borrower and its Restricted Subsidiaries on a
quarterly basis for the Fiscal Year following such Fiscal Year and on
an annual basis for each Fiscal Year thereafter until the Termination
Date.
(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority affecting any Loan Party
of the type described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(g) Agreement Notices. Promptly upon receipt thereof, copies
of all material notices, material requests and other material documents
received by any Loan Party or any of its Restricted Subsidiaries under
or pursuant to any Related Document or Material Contract or instrument,
indenture, loan or credit or similar agreement and, from time to time
upon request by the Administrative Agent, such information and reports
regarding the Related Documents and the Material Contract as the
Administrative Agent may reasonably request.
85
(h) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement of
the Chief Financial Officer of the Borrower describing such ERISA Event
and the action, if any, that such Loan Party or such ERISA Affiliate
has taken and proposes to take with respect thereto and (B) on the date
any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy
of such records, documents and information.
(i) Plan Terminations. Promptly and in any event within ten
Business Days after receipt thereof by and Loan Party or any ERISA
Affiliate, copies of such notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(j) Plan Annual Reports. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan.
(k) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B) that would reasonably be expected to
have a Material Adverse Effect.
(l) Environmental Conditions. Promptly after the assertion of
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party with any Environmental Law or
Environmental Permit that could (i) reasonably be expected to have a
Material Adverse Effect or (ii) cause any property described in the
Mortgages to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(m) Real Property. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report
supplementing Schedules 4.10(v) and 4.01(w) hereto, including an
identification of all owned and leased real property disposed of by any
Loan Party during such Fiscal Year, a list and description (including
the street address, country or other relevant jurisdiction, state,
record owner, book value thereof and, in the case of leases or
property, lessor, lessee, expiration date and annual rental cost
hereof) of all real property acquired or leased during such Fiscal Year
and a description of such other changes in the information included in
such Schedules as may be necessary for such Schedules to be accurate
and complete.
(n) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party as any Agent, or any Lender
Party through the Administrative Agent, may from time to time
reasonably request.
86
SECTION 5.04 Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower and each of its Restricted Subsidiaries will:
(a) Total Leverage. Maintain at the end of each fiscal quarter
of the Borrower a Total Leverage Ratio of not more than the amount set
forth below for each period set forth below:
Quarter Ending Ratio
-------------- -----
September 30, 2002 3.00:1.0
December 31, 2002 2.75:1.0
March 31, 2003 2.75:1.0
June 30, 2003 2.50:1.0
September 30, 2003 2.50:1.0
December 31, 2003 2.25:1.0
March 31, 2004 2.25:1.0
June 30, 2004 and thereafter 2.00:1.0
(b) Senior Leverage. Maintain at the end of each fiscal
quarter of the Borrower a Senior Leverage Ratio of not more than the
amount set forth below for each period set forth below:
(c)
Quarter Ending Ratio
-------------- -----
September 30, 2002 2.50:1.0
December 31, 2002 2.25:1.0
March 31, 2003 2.25:1.0
June 30, 2003 2.00:1.0
September 30, 2003 2.00:1.0
December 31, 2003 1.75:1.0
March 31, 2004 1.75:1.0
June 30, 2004 and thereafter 1.50:1.0
(d) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower an Interest Coverage Ratio of not less
than the amount set forth below for each period set forth below:
Quarter Ending Ratio
-------------- -----
September 30, 2002 3.75:1.0
December 31, 2002 4.00:1.0
March 31, 2003 4.00:1.0
June 30, 2003 4.00:1.0
September 30, 2003 4.00:1.0
December 31, 2003 and thereafter 5.00:1.0
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within 3 Business Days after the same shall
become due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 2.13, 5.01(d) (with respect
to the Borrower only), 5.02, 5.03(a), (b) and (c) or 5.04; provided
that, in respect to Section 5.03(a) only, the Borrower shall have
failed to comply with this Section 6.01(c) for a period of 15 days; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
30 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by any Agent or any Lender Party;
or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt of such Loan Party or such Subsidiary
(as the case may be) that is outstanding in a principal amount (or, in
the case of any Hedge Agreement, an Agreement Value) of at least
$3,000,000 either individually or in the aggregate for all such Loan
Parties and Subsidiaries (but excluding Debt outstanding hereunder),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
88
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof (provided
that in the case of Debt consisting of a take or pay contract, a
default of the type described above under such contract shall not
constitute an Event of Default so long as the Borrower and its
Subsidiaries are contesting such default pursuant to proper
proceedings); or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $3,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be
reasonably likely to have a Material Adverse Effect, and there shall be
any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party to it, or
any such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or
89
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $3,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$3,000,000 or requires payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$1,000,000; or
(o) an "Event of Default" (as defined in any Mortgage) shall
have occurred and be continuing;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.02(b)) to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, (A) by notice to the Borrower, declare the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (x) the Commitments of each
Lender Party and the obligation of each Lender Party to make Advances (other
than Swing Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) shall automatically be terminated and (y) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
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SECTION 6.02 Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent's office designated in such
demand, for deposit in the L/C Cash Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding. If at any
time the Administrative Agent or the Collateral Agent determines that any funds
held in the L/C Collateral Account are subject to any right or claim of any
Person other than the Agents and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Collateral Account, an amount equal to the excess
of (a) such aggregate Available Amount over (b) the total amount of funds, if
any, then held in the L/C Collateral Account that the Administrative Agent or
the Collateral Agent, as the case may be, determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or Revolving Credit Lenders, as applicable, to the
extent permitted by applicable law.
ARTICLE VII
GUARANTY
SECTION 7.01 Guaranty; Limitation of Liability. (a) Each Guarantor
jointly and severally hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each Guarantor, and by its acceptance of this Guaranty,
the Administrative Agent and each other Secured Party, hereby confirms
that it is the intention of all such Persons that this Guaranty and the
Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law (as hereinafter
defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative
Agent, the other Secured Parties and the Guarantors hereby irrevocably
91
agree that the Obligations of each Guarantor under this Guaranty at any
time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance. For purposes hereof, "Bankruptcy
Law" means any proceeding of the type referred to in Section 6.01(f) of
the Credit Agreement or Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to
any Secured Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Secured Parties under or in
respect of the Loan Documents.
(d) Each Subsidiary Guarantor hereby acknowledges that it is
receiving and will receive substantial benefits and other good and
valuable consideration in connection with its provision of a guarantees
under this Article VII.
SECTION 7.02 Guaranty Absolute. Each Guarantor jointly and severally
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Secured Party with respect thereto. The Obligations of each
Guarantor under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Loan Party under or in respect
of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or
otherwise;
(c) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party under the
Loan Documents, or any manner of sale or other disposition of any
Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan
Documents or any other assets of any Loan Party or any of its
Subsidiaries;
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(d) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(e) any failure of any Secured Party to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
other Loan Party now or hereafter known to such Secured Party (each
Guarantor waiving any duty on the part of the Secured Parties to
disclose such information);
(f) the failure of any other Person (other than the Guarantor)
to execute or deliver this Guaranty, any Guaranty Supplement (as
hereinafter defined) or any other guaranty; or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Secured Party that might otherwise constitute a
defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other Person
for any reason (and whether as a result of any demand, settlement, litigation or
otherwise) upon the insolvency, bankruptcy or reorganization of the Borrower or
any other Loan Party or otherwise, all as though such payment had not been made.
SECTION 7.03 Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based
upon an election of remedies by any Secured Party that in any manner
impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other
guarantor or any other Person or any Collateral and (ii) any defense
based on any right of set-off or counterclaim against or in respect of
the Obligations of such Guarantor hereunder.
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(d) Each Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Guarantor and without affecting
the liability of such Guarantor under this Guaranty, foreclose under
any mortgage by nonjudicial sale, and each Guarantor hereby waives any
defense to the recovery by the Collateral Agent and the other Secured
Parties against such Guarantor of any deficiency after such nonjudicial
sale and any defense or benefits that may be afforded by applicable
law.
(e) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Secured Party to disclose to such
Guarantor any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any other Loan Party or any of its Subsidiaries now or
hereafter known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing
arrangements contemplated by the Loan Documents and that the waivers
set forth in Section 7.02 and this Section 7.03 are knowingly made in
contemplation of such benefits.
SECTION 7.04 Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other Guarantor that
arise from the existence, payment, performance or enforcement of such
Guarantor's Obligations under or in respect of this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other Guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and all Secured Hedge Agreements
shall have expired or been terminated and the Commitments shall have expired or
been terminated. If any amount shall be paid to any Guarantor in violation of
the immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Secured Hedge Agreements, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) any Guarantor
shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
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Termination Date shall have occurred and (iv) all Secured Hedge Agreements shall
have expired or been terminated, the Secured Parties will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
SECTION 7.05 Representations and Warranties. Each Guarantor hereby
makes each representation and warranty made under Article IV hereof by the
Borrower with respect to such Guarantor and each Guarantor hereby further
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance
upon any Secured Party and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to
enter into this Guaranty and each other Loan Document to which it is or
is to be a party, and such Guarantor has established adequate means of
obtaining from each other Loan Party on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely
familiar with, the business, condition (financial or otherwise),
operations, performance, properties and prospects of such other Loan
Party.
SECTION 7.06 Covenants. Each Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Lender
Party shall have any Commitment or any Secured Hedge Agreement shall be in
effect, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set forth in the Loan Documents on its or their part to be performed or observed
or that the Borrower has agreed to cause such Guarantor or such Subsidiaries to
perform or observe.
SECTION 7.07 Guaranty Supplements, Etc. Upon the execution and delivery
by any Person of a guaranty supplement in substantially the form of Exhibit E
hereto (each, a "Guaranty Supplement"), (i) such Person shall be referred to as
an "Additional Guarantor" and shall become and be a Guarantor hereunder, and
each reference in this Guaranty to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan
Document to a "Subsidiary Guarantor" shall also mean and be a reference to such
Guarantor and Additional Guarantor, and (ii) each reference herein to "this
Guaranty", "hereunder", "hereof" or words of like import referring to this
Guaranty, and each reference in any other Loan Document to the "Subsidiary
Guaranty", "thereunder", "thereof" or words of like import referring to this
Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.
SECTION 7.08 Subordination. Each Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.08:
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(a) Prohibited Payments, Etc. Except during the continuance of
a Default (including, without limitation, the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), each Guarantor may receive regularly scheduled
payments from any other Loan Party on account of the Subordinated
Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to such Guarantor or the Borrower),
however, unless the Administrative Agent otherwise agrees, no Guarantor
shall demand, accept or take any action to collect any payment on
account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any Bankruptcy Law relating to such Guarantor or the Borrower,
each Guarantor agrees that the Secured Parties shall be entitled to
receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of
a proceeding under any Bankruptcy Law, whether or not constituting an
allowed claim in such proceeding ("Post Petition Interest")) before
such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Default (including, without limitation, the commencement and
continuation of any proceeding under any Bankruptcy Law relating to
such Guarantor or the Borrower), each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive payments
on account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any
manner the liability of such Guarantor under the other provisions of
this Guaranty.
(d) Administrative Agent Authorization. After the occurrence
and during the continuance of any Default (including, without
limitation, the commencement and continuation of any proceeding under
any Bankruptcy Law relating to any other Loan Party), the
Administrative Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of each
Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to
the Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations
and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.09 Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and (ii) the Termination Date and
(iii) the latest date of expiration or termination of all Secured Hedge
Agreements, (b) be binding upon the Guarantor, its successors and assigns and
(c) inure to the benefit of and be enforceable by the Secured Parties and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
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the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Secured Party herein or otherwise, in each case
as and to the extent provided in Section 9.07 hereof. No Guarantor shall have
the right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Secured Parties.
ARTICLE VIII
THE AGENTS
SECTION 8.01 Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders
(or, to the extent required hereby, all Lenders), and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
Agent agrees to give to each Lender Party prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.
SECTION 8.02 Agents' Reliance, Etc.. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any Default under the Loan Documents or to inspect the property
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(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03 General Electric Capital Corporation and Affiliates. With
respect to its Commitments, the Advances made by it and the Notes issued to it,
General Electric Capital Corporation (or any successor Agent) shall have the
same rights and powers under the Loan Documents as any other Lender Party and
may exercise the same as though it were not an Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
General Electric Capital Corporation (or any successor Agent) in its individual
capacity. General Electric Capital Corporation (or any successor Agent) and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary, all as if General Electric Capital Corporation (or any successor
Agent) was not an Agent and without any duty to account therefor to the Lender
Parties. No Agent shall have any duty to disclose any information obtained or
received by it or any of its Affiliates relating to any Loan Party or any of its
Subsidiaries to the extent such information was obtained or received in any
capacity other than as such Agent.
SECTION 8.04 Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05 Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents (collectively, the
"Indemnified Costs"); provided, however, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
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reasonable fees and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Issuing Bank in any way relating
to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's
gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender Party agrees to reimburse the Issuing Bank
promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 9.04, to the extent that
the Issuing Bank is not promptly reimbursed for such costs and expenses
by the Borrower.
(c) For purposes of this Section 8.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender
Parties, (ii) the aggregate unused portions of their respective Term B
Commitments at such time and (iii) their respective Unused Revolving
Credit Commitments at such time; provided that the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank shall be considered
to be owed to the Revolving Credit Lenders ratably in accordance with
their respective Revolving Credit Commitments. The failure of any
Lender Party to reimburse any Agent or the Issuing Bank, as the case
may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to such Agent or the Issuing
Bank, as the case may be, as provided herein shall not relieve any
other Lender Party of its obligation hereunder to reimburse such Agent
or the Issuing Bank, as the case may be, for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of any
other Lender Party to reimburse such Agent or the Issuing Bank, as the
case may be, for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 8.05 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and
under the other Loan Documents.
SECTION 8.06 Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders; provided,
however, that any removal of the Administrative Agent will not be effective
until it has also been replaced as Collateral Agent, Swing Line Bank and
released from all of its obligations in respect thereof. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
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successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank or
other financial institution organized under the laws of the United States or of
any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. If within 45 days
after written notice is given of the retiring Agent's resignation or removal
under this Section 8.06 no successor Agent shall have been appointed and shall
have accepted such appointment, then on such 45th day (a) the retiring Agent's
resignation or removal shall become effective, (b) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (c) the Required Lenders shall thereafter perform all duties of the retiring
Agent under the Loan Documents until such time, if any, as the Required Lenders
appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent shall have become effective, the
provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07 Limitation of Scope. This Article VIII concerns and is for
the benefit of each Agent and the Lender Parties and nothing in this Article
VIII (other than the provisions of Section 8.06) shall be deemed or interpreted
to affect, limit, bind, govern or otherwise apply to any of the Loan Parties.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lender Parties (other
than any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02, (ii) change
the number of Lenders or the percentage of (x) the Commitments or (y) the
aggregate unpaid principal amount of the Advances that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
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reduce or limit the obligations of any Guarantor under Section 7.01 hereunder or
release such Guarantor or otherwise limit such Guarantor's liability with
respect to the Obligations owing to the Agents and the Lender parties, (iv)
release all or substantially all of the Collateral in any transaction or series
of related transactions to secure any Obligations other than Obligations owing
to the Secured Parties under the Loan Documents, (v) amend Section 2.12 or this
Section or (vi) amend, modify or otherwise affect any other provision of this
Agreement or any of the other Loan Documents requiring the consent or approval
of all of the Lender Parties and (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender (other than
any Lender that is, at such time, a Defaulting Lender) that has a Commitment
under, or is owed any amounts under or in respect of, a Term Facility or the
Revolving Credit Facility if such Lender is directly and adversely affected by
such amendment, waiver or consent: (i) increase the Commitments of such Lender;
(ii) reduce the principal of, or stated rate of interest on, the Notes held by
such Lender or any fees or other amounts stated to be payable hereunder to such
Lender; (iii) postpone the final maturity of the Notes held by such Lender or
any date fixed for any payment of interest on the Notes held by such Lender or
the fees hereunder or any Guaranteed Obligations payable under Article VII
hereof; or (iv) change the order of application of any prepayment between the
Term B Facility and the Revolving Credit Facility from the application thereof
set forth in the applicable provisions of Section 2.04(b) or 2.05(b),
respectively, in any manner that materially affects the Lenders under such
Facilities; provided further that no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Bank or the Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action, affect
the rights or obligations of the Swing Line Bank or the Issuing Bank, as the
case may be, under this Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by an Agent in addition to
the Lenders required above to take such action, affect the rights or duties of
such Agent under this Agreement or the other Loan Documents.
SECTION 9.02 Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy or e-mail
communication) and mailed, telecopied or delivered, if to the Borrower, at its
address at 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxx, 00000, Attention:
Chief Financial Officer; if to any Initial Lender Party, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Collateral Agent, at its
address at 000 Xxxx Xxxxx Xxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000, Attention:
Manager of Operations, Fax No. (000) 000-0000; and if to the Administrative
Agent, at its address at 000 Xxxx Xxxxx Xxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000,
Attention: Manager of Operations, or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and other communications shall, when
mailed, telecopied or E-mailed, be effective when received. Delivery by
telecopier of an executed counterpart of a signature page to any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.
SECTION 9.03 No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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SECTION 9.04 Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all reasonable costs and expenses of each Agent and the Lead Arranger
in connection with the preparation, execution, delivery, administration,
modification and amendment of, or any consent or waiver under, the Loan
Documents (including, without limitation, (A) all due diligence, collateral
review, syndication, (including printing, distribution and bank meetings)
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for each Agent and the Lead Arranger with respect thereto,
with respect to advising such Agent or the Lead Arranger, as the case may be, as
to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all reasonable costs and expenses of each
Agent, the Lead Arranger and each Lender Party in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation, or
any bankruptcy, insolvency, restructuring or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent, the Lead Arranger and each
Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, the Lead Arranger, each Lender Party and each of
their Affiliates and their respective officers, directors, employees,
agents, advisors and trustees (each, an "Indemnified Party") from and
against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or
in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities,
the actual or proposed use of the proceeds of the Advances, the
Transaction Documents or any of the transactions contemplated thereby,
or (ii) the actual or alleged presence of Hazardous Materials on any
property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of
its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party,
its directors, shareholders or creditors or an Indemnified Party or any
other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated. The Borrower
also agrees not to assert any claim against any Agent, the Lead
Arranger, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the
Transaction Documents or any of the transactions contemplated by the
Transaction Documents.
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(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account
of a Lender Party other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to
Section 2.05, 2.08(a) or 2.08(b)(i), or acceleration of the maturity of
the Notes pursuant to Section 6.01, or if the Borrower fails to make
any payment or prepayment of an Advance for which a notice of
prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.03, 2.05 or 6.01 or otherwise, the
Borrower shall, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender Party any amounts required to compensate
such Lender Party for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment or Conversion or such
failure to pay or prepay, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or
maintain such Advance; provided, however, that such written demand
shall be accompanied a certificate as to the amount of such loss and
the method of determination of such increased loss, submitted to the
Borrower by such Lender Party, shall be prima facie evidence, absent
manifest error. Such certificate shall contain a representation that
any and all calculations made therein have been made in a manner
consistent with the treatment given by such Lender Party to similar
businesses in similar circumstances.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by
the Administrative Agent or any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrower contained in Sections 2.09
and 2.11 and this Section 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under
any of the other Loan Documents.
SECTION 9.05 Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent, the Lead Arranger and each Lender Party
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set -off and
otherwise apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Agent, the Lead Arranger, such Lender Party or such Affiliate to or for
the credit or the account of the Borrower against any and all of the Obligations
of the Borrower now or hereafter existing under the Loan Documents, irrespective
of whether such Agent, the Lead Arranger or such Lender Party shall have made
any demand under this Agreement or such Note or Notes and although such
Obligations may be unmatured. Each Agent, the Lead Arranger and each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
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affect the validity of such set-off and application. The rights of each Agent,
the Lead Arranger and each Lender Party and their respective Affiliates under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Agent, the Lead Arranger such
Lender Party and their respective Affiliates may have.
SECTION 9.06 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and each Agent and the Lead Arranger
and the Administrative Agent shall have been notified by each Initial Lender
Party that such Initial Lender Party has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, each Agent, the Lead
Arranger and each Lender Party and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights or
obligations hereunder or any interest herein without the prior written consent
of the Lender Parties.
SECTION 9.07 Assignments and Participations. (a) Each Lender may assign
to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it) and (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of any or all
Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or any Affiliate thereof or
an assignment of all of a Lender's rights and obligations under this Agreement
or an assignment to an Approved Fund, the aggregate amount of the Commitments
being assigned to such Eligible Assignee pursuant to such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $1,000,000 under each Facility for which a
Commitment is being assigned, (iii) each such assignment shall be to an Eligible
Assignee, (iv) no such assignments (other than to a Lender or any Affiliate
thereof or to an Approved Fund) shall be permitted without the consent of the
Administrative Agent until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed,
(v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment, and (vi) no such assignments (other than to a Lender or any
Affiliate thereof or any Approved Fund) shall be permitted without the consent
of the Borrower (which consent shall not be unreasonably withheld) so long as no
Event of Default has occurred and continues to remain uncured.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender or Issuing Bank, as the case may be, hereunder
and (ii) the Lender or Issuing Bank assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.09, 2.11 and 9.04 to the extent
any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's or Issuing Bank's rights and
obligations under this Agreement, such Lender or Issuing Bank shall
cease to be a party hereto).
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(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder
confirm to and agree with each other and the other parties thereto and
hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of
any lien or security interest created or purported to be created under
or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance
or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by
the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lender Parties and the Commitment under
each Facility of, and principal amount of the Advances owing under each
Facility to, each Lender Party from time to time (the "Register"). The
entries in the Register shall be prima facie evidence, absent manifest
error, and the Borrower, the Agents and the Lender Parties may treat
each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Agent or any Lender
Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or
Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been properly completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower and each
other Agent. In the case of any assignment by a Lender and upon the
request of such new Lender pursuant to the terms of Section 2.15,
within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the
105
Administrative Agent in exchange for the surrendered Note or Notes a
new Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of
such assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note
or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit
A-1 or A-2 hereto, as the case may be.
(f) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments,
the Advances owing to it and the Note or Notes (if any) held by it);
provided, however, that (i) such Lender Party's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other
Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to
such participation, or release all or substantially all of the
Collateral.
(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrower
furnished to such Lender Party by or on behalf of the Borrower;
provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve
the confidentiality of any Confidential Information received by it from
such Lender Party.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest
in all or any portion of its rights under this Agreement (including,
without limitation, the Advances owing to it and the Note or Notes held
by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
(i) Notwithstanding anything to the contrary contained herein,
any Lender that is a fund that invests in bank loans may create a
security interest in all or any portion of the Advances owing to it and
the Note or Notes held by it to the trustee for holders of obligations
owed, or securities issued, by such fund as security for such
obligations or securities, provided that unless and until such trustee
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actually becomes a Lender in compliance with the other provisions of
this Section 9.07, (i) no such pledge shall release the pledging Lender
from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein,
any Lender Party (a "Granting Lender") may grant to a special purpose
funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Advance that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement,
provided that (i) nothing herein shall constitute a commitment by any
SPC to fund any Advance, and (ii) if an SPC elects not to exercise such
option or otherwise fails to make all or any part of such Advance, the
Granting Lender shall be obligated to make such Advance pursuant to the
terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and
as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender
Party would be liable, (ii) no SPC shall be entitled to the benefits of
Sections 2.09 and 2.11 (or any other increased costs protection
provision) and (iii) the Granting Bank shall for all purposes,
including, without limitation, the approval of any amendment or waiver
of any provision of any Loan Document, remain the Lender Party of
record hereunder. Notwithstanding anything to the contrary contained in
this Agreement, any SPC may (i) with notice to, but without prior
consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding
of Advances to any rating agency, commercial paper dealer or provider
of any surety or guarantee or credit or liquidity enhancement to such
SPC. This subsection (k) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advances are
being funded by the SPC at the time of such amendment.
(k) The Issuing Bank may assign to an Eligible Assignee all of
its rights and obligations under the undrawn portion of its Letter of
Credit Commitment at any time; provided, however, that (i) each such
assignment shall be to an Eligible Assignee and (ii) the parties to
each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance.
SECTION 9.08 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 9.09 Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, agents and advisors and to actual or
107
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
(including the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party, (e) to the extent so requested or ordered by a court, in
connection with any litigation or proceeding to which such Agent or such Lender
Party or any of its Affiliates may be a party or (f) in connection with the
exercise of any right or remedy under this Agreement or any other Loan Document.
SECTION 9.10 Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, promptly execute and deliver to such Loan Party such documents as such
Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents.
SECTION 9.11 No Liability of the Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.12 Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
108
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. The
Borrower hereby irrevocably designates and appoints Corporation Service Company,
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, as its agent to receive service of all
process brought against the Borrower with respect to any such proceeding in any
such court in New York, such service being hereby acknowledged by the Borrower
to be effective and binding service in every respect. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party in
any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.13 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.14 Waiver of Jury Trial. Each of the Borrower, the Agents and
the Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of any Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HEADWATERS INCORPORATED
By /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
HYDROCARBON TECHNOLOGIES, INC.,
COVOL FUELS OPERATORS, LLC,
CHEMSAMPCO, INC.,
HYDROCARBON ENVIRONMENTAL TECHNOLOGIES, INC.,
CARBOREX, LLC,
COVOL SYNFUEL, LLC,
UTAH SYNFUEL #1, L.P.,
each as a Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
110
HEADWATERS OLYSUB CORPORATION,
ISG RESOURCES, INC.,
BEST MASONY & TOOL SUPPLY, INC.
F/K/A J. XXXXXX XXXXX INTERESTS, INC.,
XXXXX X. XXXXXXX, INC.,
UNITED TERRAZZO SUPPLY CO, INC.,
MAGNA WALL, INC.,
ISG MANUFACTURED PRODUCTS, INC.,
ISG PARTNER, INC.,
ISG CAPITAL CORPORATION,
ISG SWIFT CRETE, INC.,
DON'S BUILDING SUPPLY, L.P.,
PALESTINE CONCRETE TITLE COMPANY, L.P.
each as a Subsidiary Guarantor
By /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
111
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Manager of Operations
GENERAL ELECTRIC CAPITAL CORPORATION,
as Collateral Agent
By /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Manager of Operations
Initial Lenders
XXXXXX XXXXXXX SENIOR FUNDING, INC
By /s/ R. Xxxx Xxxxx
-----------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
ZIONS FIRST NATIONAL BANK
By /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Vice President
112
CIT LENDING SERVICES CORPORATION
By /s/ Xxxx X'Xxxxxx
-----------------------------
Name: Xxxx X'Xxxxxx
Title: Vice President
ARK II CLO 2001-1, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Manager
113
