Exhibit 10.1
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U.S.$365,000,000
CREDIT AGREEMENT
DATED AS OF APRIL 21, 1998
AMONG
THE BOYDS COLLECTION, LTD.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
DLJ CAPITAL FUNDING, INC.,
AS SYNDICATION AGENT,
THE FUJI BANK, LIMITED
NEW YORK BRANCH,
AS DOCUMENTATION AGENT,
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT.
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ARRANGED BY:
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XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
THE BOYDS COLLECTION, LTD.
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . .2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement . . . . . . . . . . . . . . . . . . . . . . . . 34
1.3 Other Definitional Provisions and Rules of Construction. . . . . 35
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . . . . . . . . . . 35
2.1 Commitments; Making of Loans; the Register; Notes. . . . . . . . 35
2.2 Interest on the Loans. . . . . . . . . . . . . . . . . . . . . . 42
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments;
Application of Proceeds of Collateral and Payments Under the
Guaranties.. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 53
2.6 Special Provisions Governing LIBOR Loans.. . . . . . . . . . . . 53
2.7 Increased Costs; Capital Adequacy. . . . . . . . . . . . . . . . 55
2.8 Notice of Certain Costs; Obligation of Lenders and Issuing
Lenders to Mitigate. . . . . . . . . . . . . . . . . . . . . . . 60
2.9 Defaulting Lenders.. . . . . . . . . . . . . . . . . . . . . . . 61
2.10 Removal or Replacement of a Lender.. . . . . . . . . . . . . . . 62
SECTION 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 64
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein . . . . . . . . . . . . . . . . . . . . . 64
3.2 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . . 67
3.3 Drawings and Reimbursement of Amounts Paid Under
Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . 68
3.4 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . 70
3.5 Indemnification; Nature of Issuing Lenders' Duties . . . . . . . 71
3.6 Increased Costs and Taxes Relating to Letters of Credit. . . . . 72
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT. . . . . . . . . . . 73
4.1 Conditions to Initial Loans. . . . . . . . . . . . . . . . . . . 74
4.2 Conditions to All Loans. . . . . . . . . . . . . . . . . . . . . 78
4.3 Conditions to Letters of Credit. . . . . . . . . . . . . . . . . 78
Page
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 79
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries. . . . . . . . . . . . . . . . . . . . 79
5.2 Authorization of Borrowing, etc. . . . . . . . . . . . . . . . . 80
5.3 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . 80
5.4 No Material Adverse Effect.. . . . . . . . . . . . . . . . . . . 81
5.5 Title to Properties; Liens.. . . . . . . . . . . . . . . . . . . 81
5.6 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . . . . 81
5.7 Payment of Taxes.. . . . . . . . . . . . . . . . . . . . . . . . 81
5.8 Governmental Regulation. . . . . . . . . . . . . . . . . . . . . 82
5.9 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . 82
5.10 Environmental Protection . . . . . . . . . . . . . . . . . . . . 83
5.11 Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 6. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . 84
6.1 Financial Statements and Other Reports.. . . . . . . . . . . . . 84
6.2 Corporate Existence, etc.. . . . . . . . . . . . . . . . . . . . 87
6.3 Payment of Taxes and Claims; Tax Consolidation . . . . . . . . . 88
6.4 Maintenance of Properties; Insurance.. . . . . . . . . . . . . . 88
6.5 Inspection Rights. . . . . . . . . . . . . . . . . . . . . . . . 88
6.6 Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . 89
6.7 Execution of Subsidiary Guaranty by Future Domestic
Subsidiaries; Pledge of Stock of Future Direct Subsidiaries;
Ratable Credit Support . . . . . . . . . . . . . . . . . . . . . 89
6.8 Transactions with Affiliates.. . . . . . . . . . . . . . . . . . 90
6.9 Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . 90
6.10 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . 90
6.11 Conveyance of Assets . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 90
7.1 Indebtedness.. . . . . . . . . . . . . . . . . . . . . . . . . . 91
7.2 Liens and Related Matters. . . . . . . . . . . . . . . . . . . . 92
7.3 Investments; Joint Ventures. . . . . . . . . . . . . . . . . . . 93
7.4 Guarantee Obligations. . . . . . . . . . . . . . . . . . . . . . 94
7.5 Restricted Junior Payments . . . . . . . . . . . . . . . . . . . 95
7.6 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . 96
7.7 Restriction on Certain Fundamental Changes; Asset Sales and
Acquisitions.. . . . . . . . . . . . . . . . . . . . . . . . . . 97
7.8 Consolidated Capital Expenditures. . . . . . . . . . . . . . . . 98
7.9 Amendments of Documents Relating to Subordinated Indebtedness. . 99
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 99
8.1 Failure to Make Payments When Due. . . . . . . . . . . . . . . . 99
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Page
8.2 Default in Other Agreements. . . . . . . . . . . . . . . . . . . 99
8.3 Breach of Certain Covenants. . . . . . . . . . . . . . . . . . .100
8.4 Breach of Warranty.. . . . . . . . . . . . . . . . . . . . . . .100
8.5 Other Defaults Under Loan Documents. . . . . . . . . . . . . . .100
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.. . . . . .100
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.. . . . . . .101
8.8 Judgments and Attachments. . . . . . . . . . . . . . . . . . . .101
8.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
8.10 Change of Control. . . . . . . . . . . . . . . . . . . . . . . .101
8.11 Material Invalidity of Guaranties; Material Failure of Security;
Repudiation of Obligations . . . . . . . . . . . . . . . . . . .101
SECTION 9. AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
9.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . .103
9.2 Powers and Duties; General Immunity. . . . . . . . . . . . . . .103
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.. . . . . . . . . . . . . . . . . . . . . . . .105
9.4 Right to Indemnity.. . . . . . . . . . . . . . . . . . . . . . .105
9.5 Successor Agents and Swing Line Lender.. . . . . . . . . . . . .106
9.6 Collateral Documents and Guaranties. . . . . . . . . . . . . . .106
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . .107
10.1 Assignments and Participations in Loans and Letters of Credit. .107
10.2 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . .110
10.3 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .111
10.4 Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
10.5 Ratable Sharing. . . . . . . . . . . . . . . . . . . . . . . . .112
10.6 Amendments and Waivers.. . . . . . . . . . . . . . . . . . . . .113
10.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
10.8 Survival of Representations, Warranties and Agreements.. . . . .115
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative. . . . . .115
10.10 Marshalling; Payments Set Aside. . . . . . . . . . . . . . . . .115
10.11 Severability.. . . . . . . . . . . . . . . . . . . . . . . . . .116
10.12 Obligations Several; Independent Nature of Lenders' Rights.. . .116
10.13 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . .116
10.14 Applicable Law.. . . . . . . . . . . . . . . . . . . . . . . . .116
10.15 Successors and Assigns.. . . . . . . . . . . . . . . . . . . . .116
10.16 Consent to Jurisdiction and Service of Process . . . . . . . . .117
10.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . .117
10.18 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . .118
10.19 Counterparts; Effectiveness. . . . . . . . . . . . . . . . . . .118
10.20 Other Transactions.. . . . . . . . . . . . . . . . . . . . . . .119
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10.21. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . .119
Signature pages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S-1
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF TRANCHE A TERM NOTE
V FORM OF TRANCHE B TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF OFFICER'S CLOSING DATE CERTIFICATE
IX FORM OF COMPLIANCE CERTIFICATE
X-A FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX AND XXXX, NEW YORK COUNSEL
X-B FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX, NEW YORK COUNSEL TO LOAN
PARTIES
X-C FORM OF OPINION OF XXXXXXX XXXXX XXXXXXX & INGERSOLL, MARYLAND COUNSEL TO
BORROWER
XI FORM OF ASSIGNMENT AGREEMENT
XII FORM OF CERTIFICATE RE NON-BANK STATUS
XIII FORM OF MASTER PLEDGE AGREEMENT
XIV FORM OF SUBSIDIARY GUARANTY
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES OF COMPANY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING GUARANTEE OBLIGATIONS
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CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 21, 1998 and entered into
by and among THE BOYDS COLLECTION, LTD., a Maryland corporation ("BORROWER"),
THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "LENDER" and collectively as "LENDERS"),
DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (in such capacity,
"SYNDICATION AGENT"), THE FUJI BANK, LIMITED NEW YORK BRANCH ("FUJI"), as
documentation agent for Lenders (in such capacity, "DOCUMENTATION AGENT"), and
FLEET NATIONAL BANK ("FLEET"), as administrative agent for Lenders (in such
capacity, "ADMINISTRATIVE AGENT").
RECITALS
WHEREAS, Bear (this and other capitalized terms used in these recitals
without definition being used as defined in subsection 1.1) has been formed by
KKR and its Affiliates for the purpose of acquiring, in the aggregate, not less
than 80% of the Shares;
WHEREAS, on or before the Closing Date, KKR and its Affiliates will
make a cash investment in Bear of not less than $184,000,000 in gross cash
proceeds (the "BEAR EQUITY AMOUNT") in consideration for all of the outstanding
common stock of Bear;
WHEREAS, on the Closing Date, (i) in connection with the
Recapitalization, (a) Borrower will repurchase $473,000,000 of the Shares and
(b) Existing Shareholders will retain $229,000,000 of the Shares, in each case
in accordance with the terms of the Recapitalization Agreement, (ii) Bear will
purchase from Existing Shareholders approximately 80% of the aggregate amount of
the Shares for cash in an amount equal to $184,000,000 and Existing Shareholders
will retain approximately 20% of the Shares valued at $45,000,000, and (iii)
Borrower will issue and sell not less than approximately $165,000,000 in
aggregate principal amount of Senior Subordinated Debt;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Borrower, the proceeds of which will be used (i) together with the proceeds of
the issuance and sale of the Senior Subordinated Debt and the proceeds of the
Bear Equity Amount, to fund that portion of the Recapitalization Financing
Requirements required to be funded on the Closing Date, and (ii) to provide
financing for working capital and other general corporate purposes of Borrower
and its Subsidiaries; and
WHEREAS, Borrower desires to secure all of the Obligations hereunder and
under the other Loan Documents by granting to Administrative Agent, on behalf of
Lenders, a first priority pledge of (i) 100% of the capital stock (or other
equivalent equity interest) of each of its direct Domestic Subsidiaries and (ii)
65% of the capital stock (or other equivalent equity interest) of each of its
direct Material Foreign Subsidiaries;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Lenders, Syndication Agent,
Documentation Agent and Administrative Agent agree as follows:
SECTION 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ACQUISITION" means the acquisition by Borrower or any of its
Subsidiaries (by purchase or otherwise) of all or substantially all of the
business, property or fixed assets of, or the stock or other evidence of
beneficial ownership of, any Person or any division, business unit or line of
business of any Person.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain Fee Letter dated
April 21, 1998 of Administrative Agent to Borrower and accepted by Borrower on
April 21, 1998.
"AFFECTED LENDER" has the meaning assigned to that term in subsection
2.6C.
"AFFILIATE", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to (i) vote 10% or more of the Voting Stock of such
Person or (ii) direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"AGENTS" shall mean Syndication Agent and Administrative Agent.
"AGREEMENT" means this Credit Agreement dated as of the date hereof,
as it may be amended, supplemented or otherwise modified from time to time.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means with respect to any date
of determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in the Applicable Commitment Fee Percentage to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:
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APPLICABLE LEVERAGE RATIO APPLICABLE COMMITMENT FEE PERCENTAGE
6.25:1.00 or greater 0.50%
5.50:1.00 or greater, but
less than 6.25:1.00 0.425%
5.00:1.00 or greater, but
less than 5.50:1.00 0.375%
4.50:1.00 or greater, but
less than 5.00:1.00 0.375%
4.00:1.00 or greater, but
less than 4.50:1.00 0.350%
3.50:1.00 or greater, but
less than 4.00:1.00 0.300%
less than 3.50:1.00 0.250%
"APPLICABLE LEVERAGE RATIO" means with respect to any date of
determination, the Consolidated Leverage Ratio set forth in the Pricing
Certificate (as defined below) in effect for the Pricing Period (as defined
below) in which such date of determination occurs. For purposes of this
definition, (i) "PRICING CERTIFICATE" means an Officer's Certificate of Borrower
certifying as to the Consolidated Leverage Ratio as of the last day of any
Fiscal Quarter and setting forth the calculation of such Consolidated Leverage
Ratio in reasonable detail, which Officer's Certificate may be delivered to
Agents at any time on or after the date of delivery by Borrower of the
Compliance Certificate (the "RELATED COMPLIANCE CERTIFICATE") with respect to
the period ending on the last day of such Fiscal Quarter pursuant to subsection
6.1(iii), and (ii) "PRICING PERIOD" means each period commencing on the first
Business Day after the delivery to Agents of a Pricing Certificate and ending on
the first Business Day after the next Pricing Certificate is delivered to
Agents; PROVIDED that, anything contained in this definition to the contrary
notwithstanding, (a) the Pricing Certificate in respect of the first Pricing
Period may be delivered at any time on or after the date upon which the
Compliance Certificate for the first Fiscal Quarter following the Closing Date
is delivered or required to be delivered by Borrower to Agents pursuant to
subsection 6.1(iii) and shall relate to the most recent financial statements
delivered by Borrower to Agents pursuant to subsection 6.1(i), (b) the
Applicable Leverage Ratio for the period from the Closing Date to but excluding
the date of commencement of such first Pricing Period shall be deemed to be
5.50:1.00, and (c) in the event that, after the commencement of the first
Pricing Period, (X) Borrower fails to deliver a Pricing Certificate to Agents
setting forth the Consolidated Leverage Ratio as of the last day of any Fiscal
Quarter on or before the last day (the "CUTOFF DATE") on which Borrower is
required to deliver the Related Compliance Certificate and (Y) Administrative
Agent determines (each such determination being an "AGENT
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DETERMINATION") on or after the Cutoff Date (on the basis of the Related
Compliance Certificate or a Pricing Certificate delivered after the Cutoff Date)
that the Applicable Leverage Ratio that would have been in effect if Borrower
had delivered a Pricing Certificate on the Cutoff Date is greater than the
Consolidated Leverage Ratio set forth in the most recent Pricing Certificate
actually delivered by Borrower, then (1) the Applicable Leverage Ratio in effect
for the period from the Cutoff Date to the date of delivery by Borrower of the
next Pricing Certificate (or, if earlier, the next date on which an Agent
Determination is made) shall be the Consolidated Leverage Ratio determined
pursuant to the Agent Determination and (2) on the first Business Day after
Administrative Agent delivers written notice to Borrower of any Agent
Determination, Borrower shall pay to Administrative Agent, for distribution (as
appropriate) to Lenders, an aggregate amount equal to the additional interest,
letter of credit fees and commitment fees Borrower would have been required to
pay in respect of all Loans, Letters of Credit or Commitments in respect of
which any interest or fees have been paid by Borrower during the period from the
Cutoff Date to the date such notice is given by Administrative Agent to Borrower
if the amount of such interest and fees had been calculated using the Applicable
Leverage Ratio based on such Agent Determination.
"APPLICABLE TRANCHE A BASE RATE MARGIN" means with respect to any date
of determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in any such Applicable Tranche A Base Rate Margin to
be effective on the date of any corresponding change in the Applicable Leverage
Ratio:
APPLICABLE LEVERAGE RATIO APPLICABLE TRANCHE A BASE RATE MARGIN
5.50:1.00 or greater 1.000%
5.00:1.00 or greater, but
less than 5.50:1.00 0.750%
4.50:1.00 or greater, but
less than 5.00:1.00 0.325%
4.00:1.00 or greater, but
less than 4.50:1.00 0.125%
3.50:1.00 or greater, but
less than 4.00:1.00 0.000%
3.00:1.00 or greater, but
less than 3.50:1.00 0.000%
less than 3.00:1.00 0.000%
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"APPLICABLE TRANCHE A LIBOR MARGIN" means, at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche A LIBOR Margin to be effective on the date
of any corresponding change in the Applicable Leverage Ratio:
APPLICABLE LEVERAGE RATIO APPLICABLE TRANCHE A LIBOR MARGIN
5.50:1.00 or greater 2.250%
5.00:1.00 or greater, but
less than 5.50:1.00 2.000%
4.50:1.00 or greater, but
less than 5.00:1.00 1.625%
4.00:1.00 or greater, but
less than 4.50:1.00 1.375%
3.50:1.00 or greater, but
less than 4.00:1.00 1.125%
3.00:1.00 or greater, but
less than 3.50:1.00 0.875%
less than 3.00:1.00 0.625%
"APPLICABLE TRANCHE B BASE RATE MARGIN" means, at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B Base Rate Margin to be effective on the
date of any corresponding change in the Applicable Leverage Ratio:
APPLICABLE LEVERAGE RATIO APPLICABLE TRANCHE B BASE RATE MARGIN
5.00:1.00 or greater 1.250%
4.00:1.00 or greater, but
less than 5.00:1.00 1.000%
less than 4.00:1.00 0.750%
"APPLICABLE TRANCHE B LIBOR MARGIN" means, at any date of
determination, a rate per annum equal to the percentage set forth below opposite
the Applicable Leverage Ratio in effect as of such date of determination, any
change in any such Applicable Tranche B LIBOR
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Margin to be effective on the date of any corresponding change in the Applicable
Leverage Ratio:
APPLICABLE LEVERAGE RATIO APPLICABLE TRANCHE B LIBOR MARGIN
5.00:1.00 or greater 2.500%
4.00:1.00 or greater, but
less than 5.00:1.00 2.250%
less than 4.00:1.00 2.000%
"ASSET SALE" means the sale by Borrower or any of its Subsidiaries to
any Third Party of (i) any of the stock or other ownership interests of any of
Borrower's Subsidiaries, (ii) substantially all of the assets of any division or
line of business of Borrower or any of its Subsidiaries, or (iii) any other
assets (whether tangible or intangible) of Borrower or any of its Subsidiaries
outside of the ordinary course of business (other than any other such assets to
the extent that the aggregate value of such assets sold in any single
transaction or related series of transactions is equal to $250,000 or less).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in substantially
the form of EXHIBIT XI annexed hereto.
"AVAILABLE AMOUNT" means, as of any date of determination, an amount
equal to (i) the aggregate amount of net cash proceeds received by Borrower
after the Closing Date in respect of any equity contributions made to Borrower
by, or any issuances of equity Securities by Borrower to, any Third Party other
than an Unrestricted Subsidiary (other than proceeds from purchases of capital
stock of Borrower to the extent such purchases are financed with the proceeds of
Investments permitted under subsection 7.3(ii)) PLUS (ii) the aggregate amount
of Retained Excess Cash Flow (as defined in subsection 2.4B(iii)(b)) as of such
date PLUS (iii) the aggregate amount of Retained Prepayments (as defined in
subsection 2.4B(iv)(c)) as of such date MINUS (iv) any proceeds received by
Borrower from the issuance of new shares of its common stock to the extent such
proceeds are used as provided in subsection 7.5(iii).
"AVAILABLE AMOUNT USAGE" means, as of any date of determination, an
amount equal to the sum of (i) the aggregate amount of Investments made pursuant
to subsection 7.3(v)(b) as of such date PLUS (ii) the aggregate amount of
Restricted Junior Payments made pursuant to subsection 7.5(ii) on or prior to
such date (other than any such Restricted Junior Payments made pursuant to a
Refinancing (as defined in the definition of "Refinancing Sub Debt")) PLUS (iii)
the aggregate amount of any Refinancing Premiums (as defined in the definition
of "Refinancing Sub Debt") paid by Borrower on or prior to such date.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
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"BASE RATE" means, at any time, the higher of (x) the Prime Rate or
(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"BEAR" means Bear Acquisition, Inc., a Delaware corporation.
"BEAR EQUITY AMOUNT" has the meaning assigned to that term in the
recitals to this Agreement.
"BORROWER" has the meaning assigned to that term in the introduction
to this Agreement.
"BUSINESS DAY" means, for all purposes other than as covered by clause
(ii) below, (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of New York City, New York or Boston, Massachusetts or is
a day on which banking institutions located in such state are authorized or
required by law or other governmental action to close and, (ii) with respect to
all notices, determinations, fundings and payments in connection with LIBOR or
any LIBOR Loans, any day that is a Business Day described in clause (i) above
and that is also (a) a day for trading by and between banks in Dollar deposits
in the London interbank market and (b) a day on which banking institutions are
open for business in London.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit Account.
"CASH EQUIVALENTS" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within 24 months after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 24 months after the date
of acquisition thereof and having, at the time of the acquisition thereof, an
investment grade rating generally obtainable from either Standard & Poor's
Ratings Group ("S&P") or Xxxxx'x Investors Service, Inc. ("MOODY'S"); (iii)
commercial paper maturing no more than 12 months from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-2 from S&P or at least P-2 from Moody's; (iv) domestic and eurodollar
certificates of deposit or bankers' acceptances maturing within 24 months after
the date of acquisition thereof and issued or accepted by any Lender or by any
other commercial bank that has combined capital and surplus of not less than
$250,000,000; (v) repurchase agreements with a term of not more than 30 days for
underlying
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securities of the types described in clauses (i), (ii) and (iv) above entered
into with any commercial bank meeting the requirements specified in clause (iv)
above or with any securities dealer of recognized national standing; (vi) shares
of investment companies that are registered under the Investment Company Act of
1940, as amended and that invest solely in one or more of the types of
investments referred to in clauses (i) through (v) above; and (vii) in the case
of any Foreign Subsidiary, high quality, short-term liquid Investments made by
such Foreign Subsidiary in the ordinary course of managing its surplus cash
position in a manner consistent with past practices.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in
the form of EXHIBIT XII annexed hereto delivered by a Lender to Administrative
Agent pursuant to subsection 2.7B(iv).
"CHANGE OF CONTROL" means, and shall be deemed to have occurred, if:
(i)(a) KKR, its Affiliates and the Management Group shall at any time not own,
in the aggregate, directly or indirectly, beneficially and of record, at least
35% of the outstanding Voting Stock of Borrower (other than as the result of one
or more widely distributed offerings of common stock of Borrower, in each case
whether by Borrower or by KKR, its Affiliates or the Management Group) and/or
(b) any person, entity or "group" (within the meaning of Section 13(d) or 14(d)
of the Exchange Act) shall at any time have acquired direct or indirect
beneficial ownership of a percentage of the outstanding Voting Stock of Borrower
that exceeds the percentage of such Voting Stock then beneficially owned, in the
aggregate, by KKR, its Affiliates and the Management Group, UNLESS, in the case
of either clause (a) or (b) above, KKR, its Affiliates and the Management Group
shall, at the relevant time, have the collective right or ability, either by
contract or pursuant to a written proxy or other written evidence of voting
power, to elect or designate for election a majority of the Board of Directors
of Borrower; and/or (ii) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of Borrower. For purposes of this
definition, "CONTINUING DIRECTOR" means, as of any date of determination, an
individual (A) who is a member of the Board of Directors of Borrower on the
Closing Date, (B) who, as of such date of determination, has been a member of
such Board of Directors for at least the 12 preceding months (or, if such date
of determination occurs during the period comprising the first 12 months after
the Closing Date, since the Closing Date), or (C) who has been nominated to be a
member of such Board of Directors, directly or indirectly, by KKR or Persons
nominated by KKR or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"CLASS" means, as applied to Lenders, each of the following three
classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii) Lenders
having Tranche A Term Loan Exposure and (iii) Lenders having Tranche B Term Loan
Exposure.
"CLOSING DATE" means the date on or before June 30, 1998 (which shall
be a Business Day), on which the initial Loans are made.
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"COLLATERAL" means all of the personal property (including capital
stock (or other equivalent equity interest)) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL DOCUMENTS" means the Pledge Agreements, this Agreement
(with respect to Section 8 hereof) and any security documents that may be
entered into from time to time after the Closing Date by any Subsidiary of
Borrower pursuant to subsection 6.7B or by Borrower pursuant to Section 8.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Borrower or
any of its Subsidiaries in the ordinary course of business of Borrower or such
Subsidiary.
"COMMITMENTS" means the commitments of Lenders to make Loans as set
forth in subsection 2.1A.
"COMMODITIES AGREEMENT" means any forward commodities contract,
commodities futures contract, commodities option contract or similar agreement
or arrangement to which Borrower or any of its Subsidiaries is a party.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT IX annexed hereto delivered to Agents and Lenders by Borrower
pursuant to subsection 6.1(iii).
"CONFIDENTIAL INFORMATION MEMORANDUM" means that certain Confidential
Information Memorandum relating to Borrower dated April, 1998.
"CONSOLIDATED ADJUSTED EBITDA" means, with respect to any Person for
any period, an amount equal to (i) Consolidated Net Income PLUS (ii) to the
extent the following items are deducted in calculating such Consolidated Net
Income, the sum, without duplication, of the amounts for such period of (a)
Consolidated Interest Expense, (b) taxes computed on the basis of income, (c)
total depreciation expense, (d) total amortization expense (including
amortization of deferred financing fees), (e) any expenses or charges incurred
in connection with any issuance of debt or equity Securities (including upfront
fees payable in respect of bank facilities), (f) any restructuring charges or
reserves, (g) any expenses or charges relating to the Recapitalization, (h) any
fees and expenses related to Acquisitions and Investments permitted hereunder,
(i) any other non-cash charges, (j) any deduction for minority interest expense,
and (k) any other non-recurring charges MINUS (iii) to the extent the following
items are added in calculating such Consolidated Net Income, the sum, without
duplication, of the amounts for such period of (a) any non-recurring gains, and
(b) any non-cash gains, all of the foregoing as determined on a consolidated
basis for such Person and its Subsidiaries in conformity with GAAP; PROVIDED
that (X) Consolidated Adjusted EBITDA of any Included Pro Forma Entity (other
than any Unrestricted Subsidiary redesignated as a Subsidiary of Borrower) shall
be increased (if positive)
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or decreased (if negative) by any Pro Forma Adjustment applicable thereto and
(Y) Consolidated Adjusted EBITDA of Borrower and its Subsidiaries shall be
increased (if positive) or decreased (if negative) by the Net EBITDA Adjustment.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized as principal on the consolidated balance sheet of Borrower and its
Subsidiaries) by Borrower and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Borrower and its Subsidiaries; PROVIDED that Consolidated Capital
Expenditures shall not include (i) any such expenditures constituting all or a
portion of the purchase price in connection with any Acquisition, (ii) any such
expenditures made in connection with the replacement, substitution, repair or
restoration of any assets to the extent financed (a) with insurance proceeds
received by Borrower or any of its Subsidiaries on account of the loss of, or
any damage to, the assets being replaced, substituted for, repaired or restored
or (b) with the proceeds of any compensation awarded to Borrower or any of its
Subsidiaries as a result of the taking, by eminent domain or condemnation, of
the assets being replaced or substituted for, (iii) the purchase price of any
equipment that is purchased simultaneously with the trade-in of any existing
equipment by Borrower or any of its Subsidiaries to the extent that the gross
amount of such purchase price is reduced by any credit granted by the seller of
such equipment for such equipment being traded in, or (iv) the purchase price of
any property, plant or equipment purchased within one year of the consummation
of any Asset Sale or any other sale by Borrower or any of its Subsidiaries of
any other property, plant or equipment to the extent purchased with the Net
Asset Sale Proceeds of such Asset Sale or the proceeds of such other sale.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Borrower and its Subsidiaries on a consolidated basis which
may properly be classified as current assets in conformity with GAAP, EXCLUDING
Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Borrower and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, EXCLUDING the current portions of Funded Debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any Fiscal Year, an amount
(if positive) equal to (i) the sum, without duplication, of the amounts for such
Fiscal Year of (a) Consolidated Net Income, (b) the amount of all non-cash
charges to the extent deducted in arriving at such Consolidated Net Income, (c)
any net decrease in Consolidated Working Capital since the end of the preceding
Fiscal Year, and (d) the aggregate net non-cash loss realized by Borrower and
its Subsidiaries in connection with the sale, lease, transfer or other
disposition of assets by Borrower and its Subsidiaries during such Fiscal Year
(other than sales in the ordinary course of business), to the extent deducted in
arriving at such Consolidated Net Income, MINUS (ii) the sum, without
duplication, of the amounts for such Fiscal Year of (a) the amount of all
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non-cash credits to the extent added in arriving at such Consolidated Net
Income, (b) Consolidated Capital Expenditures actually paid in Cash during such
Fiscal Year (net of the principal amount of any Indebtedness incurred to finance
such Consolidated Capital Expenditures, whether incurred in such Fiscal Year or
in the immediately succeeding Fiscal Year), (c) the aggregate amount of all
prepayments of Revolving Loans and Swing Line Loans to the extent accompanied by
permanent reductions in the Revolving Loan Commitments, (d) the aggregate amount
of all principal payments in respect of any Indebtedness of Borrower or any of
its Subsidiaries (including the Term Loans and the principal component of any
payments in respect of Capital Leases), other than (1) any mandatory prepayments
of the Term Loans pursuant to subsection 2.4B(iii), (2) any prepayments of
Indebtedness with the proceeds of other Indebtedness, or (3) repayments in
respect of any revolving credit facility except to the extent there is a
permanent reduction in commitments thereunder in connection with such
repayments, (e) any net increase in Consolidated Working Capital since the end
of the preceding Fiscal Year, (f) the aggregate net non-cash gain realized by
Borrower and its Subsidiaries in connection with the sale, lease, transfer or
other disposition of assets by Borrower and its Subsidiaries during such Fiscal
Year (other than sales in the ordinary course of business), (g) the aggregate
amount of all Cash payments made by Borrower and its Subsidiaries in respect of
long-term liabilities of Borrower or any of its Subsidiaries other than
Indebtedness, (h) the aggregate amount of new Investments made in Cash in
accordance with subsection 7.3(v), (i) the aggregate amount of Cash
consideration paid in connection with any Acquisitions (net of any such
consideration paid out of any Net Asset Sale Proceeds), (j) the aggregate amount
of Restricted Junior Payments made in accordance with subsection 7.5(i) (to the
extent such Restricted Junior Payments are required by the terms of the
applicable management and/or employee stock plan, stock subscription agreement
or shareholder agreement), (ii) and (v), (k) the aggregate amount of any
expenditures actually made in Cash by Borrower and its Subsidiaries during such
Fiscal Year (including expenditures for the payment of financing fees) to the
extent such expenditures are not expensed during such Fiscal Year, (l) the
aggregate amount of any net currency gains realized by Borrower and its
Subsidiaries during such Fiscal Year that are prohibited from being repatriated
to the United States, and (m) the aggregate amount of any premium, make-whole or
penalty payments actually paid in cash during such Fiscal Year that are required
in connection with any prepayment of Indebtedness and that are accounted for by
Borrower as extraordinary items, all of the foregoing as determined on a
consolidated basis for Borrower and its Subsidiaries in accordance with GAAP.
"CONSOLIDATED GROSS SALES REVENUES" means, for any Fiscal Year, an
amount equal to gross sales revenues of Borrower and its Subsidiaries for such
Fiscal Year on a consolidated basis determined in conformity with GAAP; PROVIDED
that, for purposes of calculating such gross sales revenues, (i) the gross sales
revenues of any business acquired during such Fiscal Year in an Acquisition
permitted under subsection 7.7(ii) shall be determined on a pro forma basis
(based on assumptions believed by Borrower in good faith to be reasonable) as if
such Acquisition had been consummated on the first day of such Fiscal Year and
(ii) the gross sales revenues of any business sold or otherwise disposed of by
Borrower or any of its Subsidiaries during such Fiscal Year shall be excluded in
their entirety.
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"CONSOLIDATED GROSS SALES REVENUES ADJUSTMENT" means, for any Fiscal
Year, 5% of the amount equal to (i) the increase (if any) of consolidated gross
sales revenues of Borrower and its Subsidiaries for such Fiscal Year
attributable to any business acquired during such Fiscal Year in an Acquisition
permitted under subsection 7.7(ii) MINUS (ii) the decrease (if any) in such
consolidated gross sales revenues attributable to any business sold or otherwise
disposed of by Borrower or any of its Subsidiaries during such Fiscal Year.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, an amount equal to, without duplication, (i) total interest expense
(including that portion attributable to Capital Leases in accordance with GAAP,
capitalized interest and any administrative agency or commitment or other
similar fees payable in respect of bank facilities) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person and its Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and net costs
under Interest Rate Agreements, but excluding, however, (a) any interest expense
(including amortization of discount, amortization of debt issuance costs, and
amortization of any other charges relating to the Recapitalization) not payable
in Cash during such period and (b) any amounts referred to in subsection 2.3
payable to Administrative Agent, Syndication Agent, Documentation Agent and
Lenders on or before the Closing Date MINUS (ii) total interest income of such
Person and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, but excluding, however, any interest income not received in Cash
during such period; PROVIDED that Consolidated Interest Expense of Borrower and
its Subsidiaries shall be increased (if positive) or decreased (if negative) by
the Net Interest Adjustment.
"CONSOLIDATED LEVERAGE RATIO" means, as of the last day of any Fiscal
Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii)
Consolidated Adjusted EBITDA of Borrower and its Subsidiaries for the
four-Fiscal Quarter period ending on such date.
"CONSOLIDATED NET INCOME" means, with respect to any Person (the
"SUBJECT PERSON") for any period, the net income (or loss) of the Subject Person
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; PROVIDED that there shall
be excluded (i) the income (or loss) of any Person in which any other Person
(other than the Subject Person or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Subject Person or any of its Subsidiaries by the other Person during
such period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of the Subject Person or is merged into or consolidated
with the Subject Person or any of its Subsidiaries or that Person's assets are
acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax
gains or losses, and any related fees and expenses, in each case to the extent
attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv)
any translation currency gains and losses, and (v) (to the extent not included
in clauses (i) through (iv) above) any net extraordinary gains or net
extraordinary losses.
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"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Borrower and its
Subsidiaries under clauses (i), (ii) and (iii) of the definition of
"Indebtedness" (but only to the extent, in the case of said clause (iii), of any
drawings honored under letters of credit and not yet reimbursed by Borrower or
any of its Subsidiaries), as determined on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess (or deficit) of Consolidated Current Assets over Consolidated Current
Liabilities.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, currency futures contract, currency option contract, synthetic
currency exchange rate cap or other similar agreement or arrangement to which
Borrower or any of its Subsidiaries is a party.
"DEFAULTING LENDER" has the meaning assigned to that term in
subsection 2.9.
"DEFAULT PERIOD" has the meaning assigned to that term in subsection
2.9.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DLJ" has the meaning assigned to that term in the introduction to
this Agreement.
"DOCUMENTATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Borrower that is not a
Foreign Subsidiary.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; PROVIDED that
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(x) such bank is acting through a branch or agency located in the United States
or (y) such bank is organized under the laws of a country that is a member of
the Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses including insurance companies,
mutual funds and lease financing companies; and (B) any Lender, any Affiliate of
any Lender and, with respect to any Lender that is an investment fund that
invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor; PROVIDED that no Affiliate
of Borrower shall be an Eligible Assignee.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by Borrower or any of its Subsidiaries (i) in the ordinary course of such
Person's business or (ii) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in any
way to any Environmental Law (for purposes of this definition, "CLAIMS"),
including (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law and (b) any and all Claims by any
Third Party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force and
effect of law, and that pertain to pollution (including hazardous, toxic or
dangerous substances), natural resources or the environment, whether federal,
state, or local, domestic or foreign including environmental response laws such
as the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and
as the same may be further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with Borrower or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Internal Revenue Code or (for
purposes of provisions of the Internal Revenue Code relating to Section 412 of
the Internal Revenue Code) Section 414(m) or (o) of the Internal Revenue Code.
"ERISA EVENT" means any of the following events or occurrences if such
event or occurrence could, individually or in the aggregate, reasonably be
expected to have a Material
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Adverse Effect: (i) the failure to make a required contribution to a Pension
Plan; (ii) a withdrawal by Borrower, any of its Subsidiaries or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA), or a cessation of operation which is treated as such a withdrawal under
Section 4062(e) of ERISA; (iii) a complete or partial withdrawal by Borrower,
any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization or is insolvent
pursuant to Section 4241 or 4245 of ERISA; (iv) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate, in each case with respect to a Pension Plan or Multiemployer Plan;
(v) an event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) the
imposition of any liability upon Borrower, any of its Subsidiaries or any ERISA
Affiliate under Title IV of ERISA (other than with respect to PBGC premiums due
but not delinquent under Section 4007 of ERISA) upon Borrower, any of its
Subsidiaries or any ERISA Affiliate; (vii) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA
with respect to any Pension Plan; (viii) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Plan intended
to qualify under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (ix) the violation of any applicable
foreign law, or an event or occurrence that is comparable to any of the
foregoing events or occurrences, in either case with respect to a Plan that is
not subject to regulation under ERISA by reason of Section 4(b)(4) of ERISA.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"EXCLUDED PRO FORMA ENTITY" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
sold, transferred or otherwise disposed of by Borrower or any of its
Subsidiaries to a Third Party during such period; PROVIDED that, for purposes of
calculating any consolidated financial information for any Excluded Pro Forma
Entity to be used in determining the Net EBITDA Adjustment or Net Interest
Adjustment for such period, financial information pertaining to any Person,
property, business or asset that was related to such Excluded Pro Forma Entity
but that was not disposed of by Borrower or such Subsidiary shall not be
consolidated with the relevant financial information of the Excluded Pro Forma
Entity and (ii) any Subsidiary of Borrower that is redesignated as an
Unrestricted Subsidiary during such period.
"EXISTING CREDIT AGREEMENT" means that certain letter agreement dated
as of August 14, 1997, made by Corestates Bank, N.A. ("EXISTING LENDER"), and
accepted by Borrower on August 19, 1997, as amended by that certain letter
agreement dated as of January
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23, 1998, made by Existing Lender and accepted by Borrower on January 28, 1998,
relating to a line of credit extended by Existing Lender to Borrower in an
aggregate amount of $15,000,000.
"EXISTING SHAREHOLDERS" means Xxxx X. Xxxxxxxxx and certain trusts
formed by or related to him and/or Xxxxxxx X. Xxxxxxxxx owning prior to the
consummation of the Recapitalization, in the aggregate, 100% of the Shares.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and the Syndication Agent Fee Letter.
"FINANCIAL PLAN" has the meaning assigned to that term in subsection
6.1(ix).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances) to which such Collateral is
subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Borrower and its Subsidiaries
ending on December 31 of each calendar year (or any other date to which such
Fiscal Year-end is changed pursuant to subsection 6.10).
"FLEET" has the meaning assigned to that term in the introduction to
this Agreement.
"FOREIGN SUBSIDIARY" means any Subsidiary of Borrower which is
organized under the laws of any jurisdiction outside of the United States of
America.
"FUJI" has the meaning assigned to that term in the introduction to
this Agreement.
"FUNDED DEBT", as applied to any Person, means all Indebtedness for
borrowed money of that Person (including any current portions thereof) which by
its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly
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renewable or extendable at the option of that Person to a date more than one
year from (including an option of that Person under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more from), the date of the creation thereof.
"FUNDING AND PAYMENT OFFICE" means (i) the office of Administrative
Agent and Swing Line Lender located at Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx,
XX 00000 or (ii) such other office of Administrative Agent and/or Swing Line
Lender as may from time to time hereafter be designated as such in a written
notice delivered by Administrative Agent and/or Swing Line Lender to Borrower
and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set forth
in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case as the same are
applicable to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state,
local or foreign governmental authority, agency or court.
"GUARANTEE OBLIGATIONS" means, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including any obligation of such Person, whether or not contingent, (i) to
purchase any such Indebtedness or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (a) for the purchase or
payment of any such Indebtedness 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, Securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the Primary Obligor to make payment of such
Indebtedness or (iv) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; PROVIDED, HOWEVER, that the term
"Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"GUARANTIES" means the Subsidiary Guaranty and any guaranty entered
into by any Subsidiary of Borrower pursuant to subsection 6.7B.
-17-
"HAZARDOUS MATERIALS" means any substance that is defined or listed as
a hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (i) any
substance that is a "hazardous substance" under CERCLA (as defined in the
definition of "ENVIRONMENTAL LAWS") and (ii) petroleum wastes or products.
"HEDGE AGREEMENT" means any Interest Rate Agreement, Commodities
Agreement or Currency Agreement designed to hedge against fluctuations in
interest rates, the price or availability of commodities, or currency values,
respectively.
"INCLUDED PRO FORMA ENTITY" means, for any period, (i) any Person,
property, business or asset (other than an Unrestricted Subsidiary) that is
acquired by Borrower or any of its Subsidiaries from a Third Party during such
period and not subsequently sold, transferred or otherwise disposed of by
Borrower or such Subsidiary to a Third Party during such period; PROVIDED that,
for purposes of calculating any consolidated financial information for any
Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or
Net Interest Adjustment for such period, financial information pertaining to any
Person, property, business or asset that was related to such Included Pro Forma
Entity but that was not acquired by Borrower or such Subsidiary shall not be
consolidated with the relevant financial information of the Included Pro Forma
Entity and (ii) any Unrestricted Subsidiary that is redesignated as a Subsidiary
of Borrower during such period.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness
of such Person for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
of such Person in conformity with GAAP, (iii) any obligation incurred by such
Person in connection with banker's acceptances and the maximum aggregate amount
from time to time available for drawing under all outstanding letters of credit
issued for the account of such Person together, without duplication, with the
amount of all honored but unreimbursed drawings thereunder, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price (a)
is due more than six months from the date of incurrence of the obligation in
respect thereof and (b) would be shown on the liability side of the balance
sheet of such Person in accordance with GAAP, (v) all monetary obligations of
such Person under Hedge Agreements (it being understood that monetary
obligations under Interest Rate Agreements, Commodities Agreements and Currency
Agreements other than Hedge Agreements constitute Investments and not
Indebtedness), and (vi) all indebtedness referred to in clauses (i) through (iv)
above secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person; PROVIDED that the
term "Indebtedness" shall in no event include any trade payables or accrued
expenses arising in the ordinary course of business.
"INDEMNITEE" has the meaning assigned to that term in subsection 10.3.
-18-
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Borrower and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Borrower and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on
the first such date to occur after the Closing Date, and (ii) with respect to
any LIBOR Loan, the last day of each Interest Period applicable to such Loan;
PROVIDED that, in the case of each Interest Period of longer than three months,
"Interest Payment Date" shall also include each date that is three months, or an
integral multiple thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in subsection
2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Borrower or any of its Subsidiaries is a
party.
"INTEREST RATE DETERMINATION DATE" means with respect to any Interest
Period relating to a Loan, the second Business Day prior to the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means (i) any purchase or other acquisition by Borrower
or any of its Subsidiaries of, or of a beneficial interest in, any Securities of
any other Person (other than a Person that prior to such purchase or acquisition
was a Subsidiary of Borrower), (ii) any loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Borrower or any of its Subsidiaries to any Third Party, including all
indebtedness and accounts receivable from that Third Party that are not current
assets or did not arise from sales to that Third Party in the ordinary course of
business, (iii) the designation of any Person as an Unrestricted Subsidiary, or
(iv) any monetary obligations under Interest Rate Agreements, Commodities
Agreements or Currency Agreements not constituting Hedge Agreements. The amount
of any Investment shall be (A) the original cost of such Investment (determined,
in the case of an Investment described in clause (iii) above, as provided in the
definition of "Subsidiary", without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, MINUS (B) the lesser of (1) the aggregate amount of any repayments,
redemptions, dividends or distributions thereon or proceeds from the sale
thereof, in each case to the extent of Cash payments (including any Cash
received by way of deferred payment pursuant to, or monetization of, a note
receivable or otherwise, but only as and when so received) actually received by
Borrower or the applicable Subsidiary of Borrower, and (2) the aggregate amount
described in the immediately preceding clause (A).
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"ISSUING LENDER" means, as the context may require, Fleet, any Person
serving as a successor Administrative Agent hereunder, in its capacity as issuer
of the Letters of Credit and/or at the request of Administrative Agent and the
consent of Borrower, another Lender or an Affiliate of Administrative Agent that
may issue one or more Letters of Credit hereunder.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; PROVIDED
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"KKR" means Kohlberg Kravis Xxxxxxx & Co. L.P.
"LENDER" and "LENDERS" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; PROVIDED that
the term "LENDERS", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender specified on SCHEDULE 2.1 annexed hereto (with respect to Lenders
listed on the signature pages hereof) or in the Assignment Agreement pursuant to
which it became or becomes a Lender, or such other office or offices as such
Lender may have or may from time to time hereafter designate as such in a
written notice delivered by such Lender to Borrower and Administrative Agent.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders
for the account of Borrower pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding
(whether or not the conditions to drawing can be met thereunder) PLUS (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Borrower (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B).
"LIBOR" means, for any Interest Rate Determination Date with respect
to an Interest Period for a LIBOR Loan, the rate per annum determined on the
basis of the London interbank offered rate for Dollar deposits with maturities
comparable to such Interest Period as of approximately 11:00 A.M. (London time)
on such Interest Rate Determination Date as set forth on Telerate Page 3750;
PROVIDED that in the event such rate does not appear on Page 3750 (or otherwise)
of the Telerate Service, "LIBOR" for purposes of this paragraph shall be
determined by reference to (i) such other publicly available service for
displaying interest rates for deposits in Dollars as may be agreed upon by
Borrower and Administrative Agent or (ii) in the absence of
-20-
such agreement, the arithmetic average (rounded upward to the nearest 1/16 of
one percent) of the offered quotations, if any, to first class banks in the
London interbank market for Dollars by Reference Lenders for Dollar deposits of
amounts in same day funds comparable to the respective principal amounts of the
LIBOR Loans of Reference Lenders for which LIBOR is then being determined (which
principal amount shall be deemed to be $1,000,000 in the case of any Reference
Lender not making, converting to or continuing such a LIBOR Loan) with
maturities comparable to such Interest Period as of approximately 10:00 A.M.
(Boston, Massachusetts time) on such Interest Rate Determination Date; PROVIDED
that if any Reference Lender fails to provide Administrative Agent with its
aforementioned quotation then LIBOR shall be determined based on the
quotation(s) provided to Administrative Agent by the other Reference Lender(s).
"LIBOR LOANS" means Loans bearing interest at rates determined by
reference to LIBOR as provided in subsection 2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or other similar encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any other similar
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans or Swing Line Loans or any combination
thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for Letters of Credit), the Guaranties and the
Collateral Documents.
"LOAN PARTY" means Borrower, each Subsidiary Guarantor and each
Subsidiary executing and delivering a Loan Document after the Closing Date
pursuant to subsection 6.7B, and "LOAN PARTIES" means all such Persons,
collectively.
"MANAGEMENT GROUP" means, at any time, the Chairman of the Board, the
President, the chief executive officer, the chief operating officer, any
Executive Vice President or Vice President, the Treasurer and the Secretary of
Borrower at such time.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"MASTER PLEDGE AGREEMENT" means the Master Pledge Agreement executed
and delivered on the Closing Date by Borrower and Administrative Agent,
substantially in the form of EXHIBIT XIII annexed hereto, as such Master Pledge
Agreement may thereafter be amended, supplemented or otherwise modified from
time to time.
"MATERIAL ADVERSE EFFECT" means any circumstance or condition
affecting the business, assets, operations, properties or financial condition of
Borrower and its Subsidiaries,
-21-
taken as a whole, that would materially adversely affect (a) the ability of Loan
Parties, taken as a whole, to perform their obligations under this Agreement and
the other Loan Documents, taken as a whole, or (b) the rights and remedies of
Agents and Lenders under this Agreement and the other Loan Documents, taken as a
whole.
"MATERIAL FOREIGN SUBSIDIARY" means a Material Subsidiary that is a
Foreign Subsidiary.
"MATERIAL SUBSIDIARY" means each Subsidiary of Borrower now existing
or hereafter acquired or formed by Borrower which, on a consolidated basis for
such Subsidiary and its Subsidiaries, (a) for the most recent Fiscal Year
accounted for more than 5% of the consolidated gross revenues of Borrower and
its Subsidiaries or (b) as at the end of such Fiscal Year, was the owner of more
than 5% of the consolidated total assets of Borrower and its Subsidiaries.
"XXXXX'X" has the meaning assigned to that term in the definition of
"Cash Equivalents".
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, with respect to which Borrower, any of its
Subsidiaries or any ERISA Affiliate may have liability.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of (i) the costs and expenses
relating to such Asset Sale, (ii) all taxes paid or estimated to be payable in
connection with such Asset Sale, (iii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such Asset
Sale and (iv) the amount of any reasonable reserves established in accordance
with GAAP against any liabilities (other than taxes described in clause (ii)
above) that are (a) associated with the assets that are the subject of such
Asset Sale and (b) retained by Borrower or any of its Subsidiaries; PROVIDED
that (X) in the event the amount of any taxes estimated to be payable as
described in clause (ii) above exceeds the amount actually paid, Borrower or the
applicable Subsidiary shall be deemed to have received Net Asset Sale Proceeds
in the amount of such excess on the date such taxes are paid, and (Y) upon any
subsequent reduction in the amount of any reserve described in clause (iv) above
(other than in connection with a payment by Borrower or the applicable
Subsidiary in respect of the applicable liability), Borrower or the applicable
Subsidiary shall be deemed to have received Net Asset Sale Proceeds on the date
and in the amount of such reduction.
"NET EBITDA ADJUSTMENT" means, for any period, an amount equal to (i)
the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for any
Included Pro Forma Entities (calculated for the entire such period for each such
Included Pro Forma Entity as
-22-
if such Included Pro Forma Entity had become an Included Pro Forma Entity on the
first day of such period) MINUS (ii) the sum of the aggregate of the amounts of
Consolidated Adjusted EBITDA for any Excluded Pro Forma Entities (calculated for
the entire such period for each such Excluded Pro Forma Entity, including any
portion thereof prior to the date on which it became an Excluded Pro Forma
Entity).
"NET INTEREST ADJUSTMENT" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Interest Expense for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity, including any portion thereof prior to the date
on which it became an Included Pro Forma Entity, in each case on a pro forma
basis as if any Indebtedness of such Included Pro Forma Entity that was
incurred, assumed or prepaid in connection with the transaction pursuant to
which it became an Included Pro Forma Entity had been incurred, assumed or
prepaid on the first day of such period) MINUS (ii) the sum of the aggregate of
the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities
(calculated for the entire such period for each such Excluded Pro Forma Entity,
including any portion thereof prior to the date on which it became an Excluded
Pro Forma Entity).
"NEWSUB" means Boyds Operations, Inc., a Delaware corporation
newly-formed on or prior to the Closing Date and wholly-owned by Borrower.
"NON-EXCLUDED TAX" has the meaning assigned to that term in subsection
2.7B(i).
"NOTES" means one or more of the Tranche A Term Notes, Tranche B Term
Notes, Revolving Notes or Swing Line Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by Borrower to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of EXHIBIT II annexed hereto delivered by Borrower to Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by Borrower to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"OBLIGATIONS" means all monetary obligations of every nature of each
Loan Party from time to time owed to Agents, Lenders or any of them under the
Loan Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.
-23-
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by a Responsible Officer
thereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means a pension plan as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), with respect to which Borrower, any of
its Subsidiaries or any ERISA Affiliate may have any liability.
"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that payment thereof is otherwise not, at the time, required by subsection 6.3;
(ii) Liens in respect of property or assets imposed by law, such as
carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or
other similar Liens arising in the ordinary course of business, in each case so
long as such Liens do not, individually or in the aggregate, have a Material
Adverse Effect;
(iii) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of payments for borrowed money);
(iv) Liens incurred in the ordinary course of business on securities
to secure repurchase and reverse repurchase obligations in respect of such
securities;
(v) Liens consisting of judgment or judicial attachment liens in
circumstances not constituting an Event of Default under subsection 8.8;
(vi) easements, rights-of-way, restrictions, minor defects or
irregularities of title and other similar encumbrances not interfering in any
material respect with the business of Borrower and its Subsidiaries, taken as a
whole;
(vii) Liens securing obligations in respect of Capital Leases on
the assets subject to such Capital Leases; PROVIDED that such Capital Leases are
otherwise permitted hereunder.
-24-
(viii) Liens arising solely by virtue of any statutory or common
law provision relating to bankers' liens, rights of set-off or similar rights
and remedies with respect to deposit accounts or other funds maintained with a
creditor depository institution; PROVIDED that the applicable deposit account is
not a cash collateral account;
(ix) any interest or title of a lessor, or secured by a lessor's
interest under, any lease permitted by this Agreement;
(x) 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;
(xi) Liens on goods the purchase price of which is financed by a
Commercial Letter of Credit issued for the account of Borrower; PROVIDED that
such Lien secures only the obligations of Borrower or such Subsidiary in respect
of such Commercial Letter of Credit to the extent permitted under this
Agreement; and
(xii) leases or subleases granted to others not interfering in any
material respect with the business of Borrower and its Subsidiaries, taken as a
whole.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which Borrower or any of its Subsidiaries sponsors or maintains, or to
which Borrower or any of its Subsidiaries makes, is making or is obligated to
make contributions, or to which Borrower or any of its Subsidiaries may have any
liability, and includes any Pension Plan.
"PLEDGE AGREEMENTS" means the Master Pledge Agreement and any pledge
agreements or other similar instruments that Borrower may enter into from time
to time after the Closing Date with respect to any Material Foreign Subsidiary
pursuant to the terms of the Master Pledge Agreement, as such agreements or
instruments may thereafter be amended, supplemented or otherwise modified from
time to time.
"PLEDGED COLLATERAL" means, collectively, the "Pledged Collateral" as
defined in each Pledge Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
-25-
"PRIME RATE" means the rate that Fleet announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Fleet or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO FORMA ADJUSTMENT" means, for any period with respect to any
Included Pro Forma Entity (other than an Unrestricted Subsidiary redesignated as
a Subsidiary of Borrower, for which there shall be no Pro Forma Adjustment), the
pro forma increase or decrease in the Consolidated Adjusted EBITDA of such
Included Pro Forma Entity that Borrower in good faith predicts will occur as a
result of reasonably identifiable and supportable net cost savings or additional
net costs or a reasonably identifiable and supportable increase in sales volume,
as the case may be, that will be realizable during such period by combining the
operations of such Included Pro Forma Entity with the operations of Borrower and
its Subsidiaries; PROVIDED that, so long as such net cost savings or additional
net costs or increase in sales volume will be realizable at any time during such
period it shall be assumed, for purposes of projecting such pro forma increase
or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or
additional net costs or increase in sales volume will be realizable during the
entire such period; and PROVIDED, FURTHER that any such pro forma increase or
decrease in such Consolidated Adjusted EBITDA shall be without duplication of
any net cost savings or additional net costs or increase in sales volume
actually realized during such period and already included in such Consolidated
Adjusted EBITDA.
"PRO FORMA ADJUSTMENT CERTIFICATE" shall mean a certificate of a
Responsible Officer of Borrower delivered pursuant to subsection 6.1(xii)
setting forth the information described in clause (d) of subsection 6.1(iii).
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Tranche A Term Loan Commitment or the Tranche
A Term Loan of any Lender, the percentage obtained by DIVIDING (x) the Tranche A
Term Loan Exposure of that Lender BY (y) the aggregate Tranche A Term Loan
Exposure of all Lenders, (ii) with respect to all payments, computations and
other matters relating to the Tranche B Term Loan Commitment or the Tranche B
Term Loan of any Lender, the percentage obtained by DIVIDING (x) the Tranche B
Term Loan Exposure of that Lender BY (y) the aggregate Tranche B Term Loan
Exposure of all Lenders, (iii) with respect to all payments, computations and
other matters relating to the Revolving Loan Commitment or the Revolving Loans
of any Lender or any Letters of Credit issued or participations therein
purchased by any Lender or any participations in any Swing Line Loans purchased
by any Lender, the percentage obtained by DIVIDING (x) the Revolving Loan
Exposure of that Lender BY (y) the aggregate Revolving Loan Exposure of all
Lenders, and (v) for all other purposes with respect to each Lender, the
percentage obtained by DIVIDING (x) the sum of the Tranche A Term Loan Exposure
of that Lender PLUS the Tranche B Term Loan Exposure of that Lender PLUS the
Revolving Loan Exposure of that Lender BY (y) the sum of the aggregate Tranche A
Term Loan Exposure of all Lenders PLUS the aggregate Tranche B Term Loan
Exposure of all Lenders PLUS the aggregate Revolving Loan Exposure of
26
all Lenders, in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share
of each Lender for purposes of each of clauses (i), (ii) and (iii) of the
preceding sentence is set forth opposite the name of that Lender in SCHEDULE 2.1
annexed hereto.
"RECAPITALIZATION" means, collectively, (i) the transactions
contemplated by the Recapitalization Agreement, (ii) the issuance of the Senior
Subordinated Debt and (iii) the related transactions in respect of the Shares
rolled-over by the Existing Shareholders, including the purchase of Shares by
Bear.
"RECAPITALIZATION AGREEMENT" means that certain Recapitalization and
Stock Purchase Agreement, dated as of March 6, 1998 by and among Borrower, Bear
and the Existing Shareholders, in the form delivered to Agents and Lenders prior
to their execution of this Agreement and as such agreement may be amended from
time to time thereafter.
"RECAPITALIZATION FINANCING REQUIREMENTS" means the aggregate of all
amounts necessary (i) to pay the aggregate cash consideration payable to all
holders of Shares pursuant to the Recapitalization Agreement upon consummation
of the Recapitalization, and (ii) to pay Transaction Costs.
"REFERENCE LENDERS" means Fleet, DLJ and Fuji.
"REFINANCING SUB DEBT" means Indebtedness of Borrower issued in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise prepay or retire (collectively, to "REFINANCE" or a "REFINANCING"),
Senior Subordinated Debt; PROVIDED that (i) the aggregate principal amount of
such Indebtedness shall not exceed the sum of (a) the aggregate principal amount
of Senior Subordinated Debt thereby Refinanced PLUS (b) the amount of any tender
premium, call premium or similar premium (any such premium being a "REFINANCING
PREMIUM") paid by Borrower in connection with such Refinancing, (ii) such
Indebtedness is unsecured and is not guarantied by any Subsidiary of Borrower,
and (iii) the terms of such Indebtedness (including the maturity, amortization
schedule, covenants, defaults, remedies, subordination provisions and other
material terms thereof) shall be no less favorable in any material respect to
Lenders than the other terms of the Senior Subordinated Debt.
"REFINANCING SUB DEBT INDENTURE" means the Indenture pursuant to which
any Refinancing Sub Debt is issued, as such indenture may be amended from time
to time.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term in
subsection 2.1A(iv).
"REGISTER" has the meaning assigned to that term in subsection 2.1D.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Recapitalization
Agreement and the Senior Subordinated Debt Documents.
"REQUISITE CLASS LENDERS" means, at any time of determination (i) for
the Class of Lenders having Revolving Loan Exposure, Lenders having or holding
more than 50% of the aggregate Revolving Loan Exposure of all Lenders, (ii) for
the Class of Lenders having Tranche A Term Loan Exposure, Lenders having or
holding more than 50% of the aggregate Tranche A Term Loan Exposure of all
Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan Exposure,
Lenders having or holding more than 50% of the aggregate Tranche B Term Loan
Exposure of all Lenders.
"REQUISITE LENDERS" means Lenders having or holding more than 50% of
the sum of the aggregate Tranche A Term Loan Exposure of all Lenders PLUS the
aggregate Tranche B Term Loan Exposure of all Lenders PLUS the aggregate
Revolving Loan Exposure of all Lenders.
"RESPONSIBLE OFFICER" means, with respect to any Person, its chief
executive officer, chief operating officer, president, or any vice president,
managing director, treasurer, controller or other officer of such Person having
substantially the same authority and responsibility; PROVIDED that, with respect
to compliance with financial covenants or the delivery of financial statements
and related financial reports, "RESPONSIBLE OFFICER" means the chief financial
officer, treasurer or controller of Borrower, or any other Responsible Officer
of Borrower whose responsibilities include substantially the same authority and
responsibility.
"RESTRICTED ACQUISITION SUBSIDIARY" means (i) a Subsidiary of Borrower
that is (a) first created or acquired by Borrower or any of its Subsidiaries
after the Closing Date in connection with an Acquisition and (b) designated as a
"Restricted Acquisition Subsidiary" pursuant to a written notice delivered by
Borrower to Agents prior to the consummation of such Acquisition; PROVIDED that
Borrower may, by written notice to Agents, redesignate any Restricted
Acquisition Subsidiary as a Subsidiary that is not a Restricted Acquisition
Subsidiary so long as, after giving effect to the aggregate principal amount of
any outstanding Indebtedness of such Restricted Acquisition Subsidiary that was
originally incurred pursuant to subsection 7.1(ix) as if such Indebtedness were
being incurred by such Restricted Acquisition Subsidiary as of the date of such
redesignation, no Event of Default or Potential Event of Default shall have
occurred and be continuing or would result therefrom and (ii) any Subsidiary of
a Restricted Acquisition Subsidiary described in the foregoing clause (i).
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Borrower now or hereafter outstanding, except a dividend payable solely in
shares of common stock of Borrower or payable solely in shares of that class of
stock to the holders of that class, (ii) any redemption, retirement,
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sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Borrower now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Borrower now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to make
Revolving Loans to Borrower pursuant to subsection 2.1A(iii), and "REVOLVING
LOAN COMMITMENTS" means such commitments of all Lenders in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest of (i)
June 30, 1998 if the initial Term Loans are not made on or before that date,
(ii) the seventh anniversary of the Closing Date and (iii) such earlier date on
which the Revolving Loan Commitments may be terminated pursuant to subsection
2.4B or Section 8.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of any
date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum, without duplication, of
(a) the aggregate outstanding principal amount of the Revolving Loans of that
Lender PLUS (b) in the event that Lender is an Issuing Lender, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued by that Lender
(in each case net of any participations purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) PLUS (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit PLUS (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans, in each case
without duplication.
"REVOLVING LOANS" means the Loans made by Lenders to Borrower pursuant
to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) any promissory notes of Borrower issued
pursuant to subsection 2.1E to evidence the Revolving Loans of any Lenders and
(ii) any promissory notes issued by Borrower pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case substantially in
the form of EXHIBIT VI annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"S&P" has the meaning assigned to that term in the definition of "Cash
Equivalents".
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"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURITIES" means any stock, shares, partnership interests, limited
liability company interests, voting trust certificates, certificates of interest
or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured
or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SENIOR SUBORDINATED DEBT" means the $165,000,000 in aggregate
principal amount of Senior Subordinated Debt Notes.
"SENIOR SUBORDINATED DEBT DOCUMENTS" means the Senior Subordinated
Debt Indenture, the Senior Subordinated Debt Notes and the Senior Subordinated
Debt Guarantee, collectively.
"SENIOR SUBORDINATED DEBT GUARANTEE" means any subordinated guaranty
made by Subsidiaries of Borrower in favor of the holders of the Senior
Subordinated Debt Notes pursuant to the Senior Subordinated Debt Indenture, the
subordination provisions of which shall be on terms substantially the same as
the subordination provisions in the Senior Subordinated Debt Indenture, as such
subordinated guaranty may be amended from time to time.
"SENIOR SUBORDINATED DEBT INDENTURE" means the indenture pursuant to
which the Senior Subordinated Debt is issued, as such indenture may be amended
from time to time.
"SENIOR SUBORDINATED DEBT NOTES" means the 9% Senior Subordinated
Notes due 2008 of Borrower issued pursuant to the Senior Subordinated Debt
Indenture and substantially in the form set forth in Article II thereof, as such
Senior Subordinated Notes may be amended from time to time.
"SHARES" means the outstanding common stock of Borrower, par value
$1.00 per share.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Borrower or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Borrower or any of its Subsidiaries, (iii) the obligations of third party
insurers of Borrower or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or operating leases
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of Borrower or any of its Subsidiaries, and (v) other lawful corporate purposes
of Borrower or any of its Subsidiaries.
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of Borrower
evidenced by the Senior Subordinated Debt, and (ii) the Indebtedness of Borrower
evidenced by any Refinancing Sub Debt.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; PROVIDED that, with respect to Borrower or any of its Subsidiaries, the
term "Subsidiary" shall not include any Unrestricted Subsidiary; and PROVIDED,
FURTHER that Borrower shall be permitted from time to time to (i) designate any
Unrestricted Subsidiary as a "Subsidiary" of Borrower hereunder by written
notice to Agents, so long as (a) no Event of Default or Potential Event of
Default shall have occurred and be continuing or shall be caused thereby and (b)
the provisions of subsection 6.7 shall have been complied with in respect of
such newly-designated Subsidiary, or (ii) designate any Subsidiary of Borrower
that is formed or acquired after the Closing Date, or any Person that, as a
result of the acquisition after the Closing Date by Borrower or any of its
Subsidiaries of any equity Securities of such Person, would otherwise be a
Subsidiary of Borrower hereunder, to be an "Unrestricted Subsidiary" by written
notice to Agents so long as (1) after giving effect to such designation as an
Investment in such Unrestricted Subsidiary (calculated as an amount equal to the
sum of (X) the net worth of the Subsidiary or other Person so designated (the
"DESIGNATED PERSON") immediately prior to such designation (such net worth to be
calculated, in the case of a Designated Person that is currently a Subsidiary of
Borrower, without regard to any Obligations of such Subsidiary under the
Subsidiary Guaranty) and (Y) the aggregate principal amount of any Indebtedness
owed by the Designated Person to Borrower or any of its Subsidiaries immediately
prior to such designation, all calculated, except as set forth in the
parenthetical to clause (X) above, on a consolidated basis in accordance with
GAAP), Borrower shall be in compliance with the provisions of subsection 7.3(v),
(2) no Subsidiary is a Subsidiary of such Unrestricted Subsidiary, (3) on or
promptly after the date of designation of such Person as such Unrestricted
Subsidiary, such Unrestricted Subsidiary shall enter into a tax sharing
agreement with Borrower that provides (as determined by Borrower in good faith)
for an appropriate allocation of tax liabilities and benefits, and (4) no
recourse whatsoever (whether by contract or by operation of law or otherwise)
may be had to Borrower or any of its Subsidiaries or any of their respective
properties or assets for any obligations of such Unrestricted Subsidiary except
to the extent that the aggregate maximum amount of such recourse constitutes (X)
an Investment permitted under subsection 7.3(v) or (Y) a Guarantee Obligation
permitted under subsection 7.4(vii).
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"SUBSIDIARY GUARANTOR" means any Domestic Subsidiary that executes and
delivers a counterpart of the Subsidiary Guaranty on the Closing Date or from
time to time thereafter pursuant to subsection 6.7.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing Domestic Subsidiaries on the Closing Date and to be
executed and delivered by additional Domestic Subsidiaries from time to time
thereafter in accordance with subsection 6.7A, substantially in the form of
EXHIBIT XIV annexed hereto, as such Subsidiary Guaranty may thereafter be
amended, supplemented or otherwise modified from time to time.
"SUPERMAJORITY CLASS LENDERS" means, at any time of determination (i)
for the Class of Lenders having Revolving Loan Exposure and/or Tranche A Term
Loan Exposure, Lenders having or holding more than 66-2/3% of the sum of (x) the
aggregate Revolving Loan Exposure of all Lenders and (y) the aggregate Tranche A
Term Loan Exposure of all Lenders, and (ii) for the Class of Lenders having
Tranche B Term Loan Exposure, Lenders having or holding more than 66-2/3% of the
aggregate Tranche B Term Loan Exposure of all Lenders.
"SWING LINE LENDER" means Fleet, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line Lender
to make Swing Line Loans to Borrower pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Borrower pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means (i) any promissory note of Borrower issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender and (ii) any promissory note issued by Borrower to any successor
Administrative Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of EXHIBIT VII annexed
hereto, as it may be amended, supplemented or otherwise modified from time to
time.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"SYNDICATION AGENT FEE LETTER" means that certain Fee Letter dated
April 1, 1998 of Syndication Agent and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("ARRANGER") to Borrower and accepted by Borrower on April 2, 1998.
"TAX" or "TAXES" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the
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jurisdiction in which that Person is organized or in which that Person's
principal office (and/or, in the case of a Lender, its applicable Lending
Office) is located or in which that Person (and/or, in the case of a Lender, its
applicable Lending Office) is deemed to be doing business on all or part of the
net income, profits or gains (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its
applicable Lending Office).
"TERM LOANS" means the Tranche A Term Loans and the Tranche B Term
Loans, collectively.
"THIRD PARTY" means any Person other than Borrower or any of its
Subsidiaries.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not yet so applied)
PLUS (ii) the aggregate principal amount of all outstanding Swing Line Loans
PLUS (iii) the Letter of Credit Usage.
"TRANCHE A LENDER" means a Lender that has Tranche A Term Loan
Exposure.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Tranche A Term Loan to Borrower pursuant to subsection 2.1A(i), and
"TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the funding of the Tranche A Term Loans,
that Lender's Tranche A Term Loan Commitment and (ii) after the funding of the
Tranche A Term Loans, the outstanding principal amount of the Tranche A Term
Loan of that Lender.
"TRANCHE A TERM LOANS" means the Loans made as Tranche A Term Loans by
Lenders to Borrower pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means any promissory notes of Borrower issued
pursuant to subsection 2.1E to evidence the Tranche A Term Loans of any Lenders,
substantially in the form of EXHIBIT IV annexed hereto, as any such note may be
amended, supplemented or otherwise modified from time to time.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Tranche B Term Loan to Borrower pursuant to subsection 2.1A(ii), and
"TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the funding of the Tranche B Term Loans,
that Lender's
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Tranche B Term Loan Commitment and (ii) after the funding of the Tranche B Term
Loans, the outstanding principal amount of the Tranche B Term Loan of that
Lender.
"TRANCHE B TERM LOANS" means the Loans made as Tranche B Term Loans by
Lenders to Borrower pursuant to subsection 2.1A(ii).
"TRANCHE B TERM NOTES" means any promissory notes of Borrower issued
pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any Lenders,
substantially in the form of EXHIBIT V annexed hereto, as any such note may be
amended, supplemented or otherwise modified from time to time.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Borrower in connection with the transactions contemplated by the Loan Documents,
the Related Agreements on or before the Closing Date.
"TYPE" means, as applied to any Loan, whether such Loan is a Tranche A
Term Loan, a Tranche B Term Loan, a Revolving Loan or a Swing Line Loan.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"UNFUNDED PENSION LIABILITY" means, with respect to any Pension Plan,
the amount of unfunded benefit liabilities of such Pension Plan as defined in
Section 4001(a)(18) of ERISA.
"UNREINVESTED ASSET SALE PROCEEDS" means that portion, if any, of any
Net Asset Sale Proceeds that shall not have been reinvested by Borrower and its
Subsidiaries in the business of Borrower and its Subsidiaries within (i) two
years after the receipt by Borrower or any of its Subsidiaries of such Net Asset
Sale Proceeds, in the case of an Asset Sale consisting of the issuance of
capital stock by any of Borrower's Subsidiaries to a Third Party or (ii) one
year after the receipt by Borrower or any of its Subsidiaries of such Net Asset
Sale Proceeds, in the case of any other Asset Sale.
"UNRESTRICTED SUBSIDIARY" means any corporate Subsidiary of Borrower
(determined without giving effect to the provisos set forth in the definition of
"Subsidiary") that is formed or acquired after the Closing Date and that is
designated by Borrower as an "Unrestricted Subsidiary" as provided in the
definition of "Subsidiary".
"VOTING STOCK" means, with respect to any Person, Securities of such
Person having ordinary voting power (without regard to the occurrence of any
contingency) to vote in the election of directors of such Person.
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1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. All computations made for purposes of
determining any Applicable Leverage Ratio or any amount of Consolidated Excess
Cash Flow or for purposes of determining compliance with any of the provisions
of Section 7, including any related computations of amounts represented by terms
defined in subsection 1.1, shall utilize accounting principles and policies in
effect at the time of preparation of, and consistent with those used to prepare,
the historical financial statements of Borrower and its Subsidiaries described
in subsection 5.3. Financial statements and other information required to be
delivered by Borrower to Lenders pursuant to clauses (i), (ii) and (ix) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation; PROVIDED that if any of the computations described in
the immediately preceding sentence shall at any time utilize accounting
principles and policies different from those utilized in preparing the financial
statements referred to in this sentence, such financial statements shall be
delivered together with reconciliation worksheets showing in reasonable detail
the differences that would result in such computations if the accounting
principles and policies utilized in preparing such financial statements were
utilized in making such computations.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrower herein set
forth, each Lender
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hereby severally agrees to make the Loans described in subsections 2.1A(i),
2.1A(ii) and 2.1A(iii) and Swing Line Lender hereby agrees to make the Loans
described in subsection 2.1A(iv).
(i) TRANCHE A TERM LOANS. Each Lender severally agrees to lend to
Borrower on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche A Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The amount of each Lender's
Tranche A Term Loan Commitment is set forth opposite its name on SCHEDULE
2.1 annexed hereto and the aggregate amount of the Tranche A Term Loan
Commitments is $100,000,000. Each Lender's Tranche A Term Loan Commitment
shall expire immediately and without further action on June 30, 1998 if the
Tranche A Term Loans are not made on or before that date. Borrower may
make only one borrowing under the Tranche A Term Loan Commitments. Amounts
borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid
may not be reborrowed.
(ii) TRANCHE B TERM LOANS. Each Lender severally agrees to lend to
Borrower on the Closing Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche B Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The amount of each Lender's
Tranche B Term Loan Commitment is set forth opposite its name on SCHEDULE
2.1 annexed hereto and the aggregate amount of the Tranche B Term Loan
Commitments is $225,000,000. Each Lender's Tranche B Term Loan Commitment
shall expire immediately and without further action on June 30, 1998 if the
Tranche B Term Loans are not made on or before that date. Borrower may
make only one borrowing under the Tranche B Term Loan Commitments. Amounts
borrowed under this subsection 2.1A(ii) and subsequently repaid or prepaid
may not be reborrowed.
(iii) REVOLVING LOANS. Each Lender severally agrees, subject to
the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Borrower from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount not exceeding its Pro Rata Share of the aggregate amount of the
Revolving Loan Commitments to be used for the purposes identified in
subsection 2.5B. The original amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on SCHEDULE 2.1 annexed hereto
and the aggregate original amount of the Revolving Loan Commitments is
$40,000,000; PROVIDED that the Revolving Loan Commitments of Lenders shall
be adjusted to give effect to any assignments of the Revolving Loan
Commitments pursuant to subsection 10.1B; and PROVIDED, FURTHER that the
amount of the Revolving Loan Commitments shall be reduced from time to time
by the amount of any reductions thereto made pursuant to subsection
2.4B(ii). Each Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that date.
Amounts borrowed under this
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subsection 2.1A(iii) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to
the limitation that in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.
(iv) SWING LINE LOANS. Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, to make a portion
of the Revolving Loan Commitments available to Borrower from time to time
during the period from the Closing Date to but excluding the Revolving Loan
Commitment Termination Date by making Swing Line Loans to Borrower in an
aggregate amount not exceeding the amount of the Swing Line Loan Commitment
to be used for the purposes identified in subsection 2.5B, notwithstanding
the fact that such Swing Line Loans, when aggregated with Swing Line
Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share
of the Letter of Credit Usage then in effect, may exceed Swing Line
Lender's Revolving Loan Commitment. The original amount of the Swing Line
Loan Commitment is $5,000,000; PROVIDED that any reduction of the Revolving
Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the
aggregate Revolving Loan Commitments to an amount less than the then
current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without any
further action on the part of Borrower, Administrative Agent or Swing Line
Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid in full
no later than that date. Amounts borrowed under this subsection 2.1A(iv)
may be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Swing Line Loans and the Swing Line Loan Commitment shall be subject to
the limitation that in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Borrower), no later than 11:00 A.M. (Boston,
Massachusetts time) on the first Business Day in advance of the proposed
Funding Date, a notice (which shall be deemed to be a Notice of Borrowing
given by Borrower) requesting Lenders to make Revolving Loans that are Base
Rate Loans on such Funding Date in an amount equal to the amount of such
Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date
such notice is
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given which Swing Line Lender requests Lenders to prepay. Anything
contained in this Agreement to the contrary notwithstanding, (i) the
proceeds of such Revolving Loans made by Lenders other than Swing Line
Lender shall be immediately delivered by Administrative Agent to Swing Line
Lender (and not to Borrower) and applied to repay a corresponding portion
of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans
are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line
Loans shall be deemed to be paid with the proceeds of a Revolving Loan made
by Swing Line Lender, and such portion of the Swing Line Loans deemed to be
so paid shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing Line Note, if any, of Swing Line Lender but
shall instead constitute part of Swing Line Lender's outstanding Revolving
Loans and shall be due under the Revolving Note, if any, of Swing Line
Lender. If any portion of any such amount paid (or deemed to be paid) to
Swing Line Lender should be recovered by or on behalf of Borrower from
Swing Line Lender in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 10.5.
If for any reason (a) Revolving Loans are not made upon the request of
Swing Line Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect
of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments
are terminated at a time when any Swing Line Loans are outstanding, each
Lender shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans in an amount equal to
its Pro Rata Share (calculated, in the case of the foregoing clause (b),
immediately prior to such termination of the Revolving Loan Commitments) of
the unpaid amount of such Swing Line Loans together with accrued interest
thereon. Upon one Business Day's notice from Swing Line Lender, each
Lender shall deliver to Swing Line Lender an amount equal to its respective
participation in same day funds at the Funding and Payment Office. In
order to further evidence such participation (and without prejudice to the
effectiveness of the participation provisions set forth above), each Lender
agrees to enter into a separate participation agreement at the request of
Swing Line Lender in form and substance reasonably satisfactory to Swing
Line Lender. In the event any Lender fails to make available to Swing Line
Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the rate
customarily used by Swing Line Lender for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount in which other
Lenders have purchased participations as provided in this paragraph, Swing
Line Lender shall promptly distribute to each such other Lender its Pro
Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and
each Lender's obligation to
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purchase a participation in any unpaid Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and unconditional and
shall not be affected by any circumstance, including (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or
prospects of Borrower or any of its Subsidiaries; (d) any breach of this
Agreement or any other Loan Document by any party thereto; or (e) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing; PROVIDED that such obligations of each Lender are subject
to the condition that (X) Swing Line Lender believed in good faith that all
conditions under Section 4 to the making of the applicable Refunded Swing
Line Loans or other unpaid Swing Line Loans, as the case may be, were
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line
Loans were made or (Y) the satisfaction of any such condition not satisfied
had been waived in accordance with subsection 10.6 prior to or at the time
such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
B. BORROWING MECHANICS. Tranche A Term Loans or Tranche B Term Loans
made on any Funding Date as Base Rate Loans or as LIBOR Loans with a particular
Interest Period shall be in an aggregate minimum amount of $2,500,000 and
integral multiples of $250,000 in excess of that amount. Revolving Loans (other
than Revolving Loans made pursuant to a request by Swing Line Lender pursuant to
subsection 2.1A(iv) for the purpose of repaying any Refunded Swing Line Loans or
Revolving Loans made pursuant to subsection 3.3B for the purpose of reimbursing
any Issuing Lender for the amount of a drawing under a Letter of Credit issued
by it) made on any Funding Date shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $100,000 in excess of that amount. Swing
Line Loans made on any Funding Date shall be in an aggregate minimum amount of
$250,000 and integral multiples of $100,000 in excess of that amount. Whenever
Borrower desires that Lenders make Term Loans or Revolving Loans to Borrower it
shall deliver to Administrative Agent a Notice of Borrowing no later than 11:00
A.M. (Boston, Massachusetts time) at least three Business Days in advance of the
proposed Funding Date (in the case of a LIBOR Loan) or at least one Business Day
in advance of the proposed Funding Date (in the case of a Base Rate Loan).
Whenever Borrower desires that Swing Line Lender make a Swing Line Loan, it
shall deliver to Administrative Agent a Notice of Borrowing no later than 1:00
P.M. (Boston, Massachusetts time) on the proposed Funding Date. The Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount and Type of Loans requested, (iii) in the case of Swing
Line Loans and any Loans made on the Closing Date, that such Loans shall be Base
Rate Loans, (iv) in the case of Revolving Loans not made on the Closing Date,
whether such Loans shall be Base Rate Loans or LIBOR Loans, and (v) in the case
of any Loans requested to be made as LIBOR Loans, the initial Interest Period
requested therefor. Term Loans and Revolving Loans may be continued as or
converted into Base Rate Loans and LIBOR Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of Borrowing,
Borrower may give Administrative Agent telephonic notice by the required time of
any proposed borrowing under
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this subsection 2.1B; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent on or
before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Borrower or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Borrower shall have effected Loans hereunder.
Borrower shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Borrower is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by Borrower of the proceeds
of any Loans shall constitute a re-certification by Borrower, as of the
applicable Funding Date, as to matters to which Borrower is required to certify
in the applicable Notice of Borrowing.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, being understood that no Lender shall be responsible
for any default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder nor shall the Commitment of any Lender to make the
particular Type of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by Administrative Agent of a Notice
of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender or Swing Line Lender, as the case
may be, of the proposed borrowing. Each Lender shall make the amount of its
Loan available to Administrative Agent not later than 1:00 P.M. (Boston,
Massachusetts time) on the applicable Funding Date, and Swing Line Lender shall
make the amount of its Swing Line Loan available to Administrative Agent not
later than 2:00 P.M. (Boston, Massachusetts time) on the applicable Funding
Date, in each case in same day funds, at the Funding and Payment Office for such
Loans. Except as provided in subsection 2.1A(iv) or subsection 3.3B with
respect to Revolving Loans used to repay Refunded Swing Line Loans or to
reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date) and
4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of
such Loans available to Borrower on the applicable Funding Date by causing an
amount of same day funds equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of Borrower at the Funding and Payment Office for
such Loans.
Unless Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent
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the amount of such Lender's Loan requested on such Funding Date, Administrative
Agent may assume that such Lender has made such amount available to
Administrative Agent on such Funding Date and Administrative Agent may, in its
sole discretion, but shall not be obligated to, make available to Borrower a
corresponding amount on such Funding Date. If such corresponding amount is not
in fact made available to Administrative Agent by such Lender, Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent at the customary rate set
by Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify Borrower, and Borrower shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon for each day from such Funding Date until the date such amount
is paid to Administrative Agent, at the rate payable under this Agreement for
Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Borrower may have against any Lender as a result of any default
by such Lender hereunder.
D. THE REGISTER.
(i) Administrative Agent shall maintain, at its address referred to
in subsection 10.7, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans (whether or not
separately evidenced by one or more Notes) of each Lender from time to time
(the "REGISTER"). The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Tranche A
Term Loan Commitment, Tranche B Term Loan Commitment and Revolving Loan
Commitment and the Tranche A Term Loans, Tranche B Term Loan and Revolving
Loans from time to time of each Lender, the Swing Line Loan Commitment and
the Swing Line Loans from time to time of Swing Line Lender and each
repayment or prepayment in respect of the principal amount of the Tranche A
Term Loans, Tranche B Term Loan, or Revolving Loans of each Lender or the
Swing Line Loans of Swing Line Lender. Any such recordation shall be
conclusive and binding on Borrower and each Lender, absent clearly
demonstrable error; PROVIDED that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's Commitments or
Borrower's Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including
any Notes held by such Lender) the amount of the Tranche B Term Loan and
the Tranche A Term Loan and Revolving Loan made by it and each payment in
respect thereof. Any such recordation shall be conclusive and binding on
Borrower, absent clearly demonstrable error; PROVIDED that failure to make
any such recordation, or any error in such recordation,
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shall not affect any Lender's Commitments or Borrower's Obligations in
respect of any applicable Loans; and PROVIDED, FURTHER that in the event of
any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(iv) Borrower, Administrative Agent and Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of
the corresponding Commitments and Loans listed therein for all purposes
hereof, and no assignment or transfer of any such Commitment or Loan shall
be effective, in each case unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii). Any assignment or transfer of all or part of a Loan evidenced
by a Note shall be registered on the Register only upon surrender for
cancellation, accompanied by a duly executed Assignment Agreement, of the
Note evidencing such Loan. Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the
Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such request
or giving such authority or consent, is listed in the Register as a Lender
shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(v) Borrower hereby designates Fleet to serve as its agent solely for
purposes of maintaining the Register as provided in this subsection 2.1D,
and Borrower hereby agrees that, to the extent Fleet serves in such
capacity, Fleet and its officers, directors, employees, agents and
affiliates shall constitute Indemnitees for all purposes under subsection
10.3.
E. OPTIONAL NOTES. Upon the request of any Lender made through the
Administrative Agent at any time, solely to facilitate the pledge or assignment
of such Lender's applicable Loans pursuant to subsection 10.1D), Borrower shall
execute and deliver to such Lender (and/or, if applicable and if so specified in
such notice, to any Person who is an assignee of such Lender pursuant to
subsection 10.1), promptly after Borrower's receipt of such notice, a Note or
Notes to evidence such Lender's Tranche A Term Loans, Tranche B Term Loan,
Revolving Loans or Swing Line Loans, as the case may be, substantially in the
form of EXHIBIT IV, EXHIBIT V, EXHIBIT VI, or EXHIBIT VII annexed hereto,
respectively, with appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made to maturity (whether by acceleration
or otherwise) at a rate determined by reference to the Base Rate or LIBOR.
Subject to the provisions of subsection 2.7, each Swing Line Loan shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base
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Rate. The applicable basis for determining the rate of interest with respect to
any Term Loan or any Revolving Loan shall be selected by Borrower initially at
the time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B, and the basis for determining the interest rate with respect to
any Term Loan or any Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. Subject to the last proviso to the first paragraph of
subsection 2.2D, if on any day a Term Loan or Revolving Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan shall bear
interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche A Term Loans and the Revolving Loans shall bear interest through
maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate PLUS
the Applicable Tranche A Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR PLUS the
Applicable Tranche A LIBOR Margin.
(ii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche B Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate PLUS
the Applicable Tranche B Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR PLUS the
Applicable Tranche B LIBOR Margin.
(iii) Subject to the provisions of subsections 2.2E and 2.7, the
Swing Line Loans shall bear interest through maturity at the sum of the
Base Rate PLUS the Applicable Tranche A Base Rate Margin MINUS the
Applicable Commitment Fee Percentage.
B. INTEREST PERIODS. In connection with each LIBOR Loan, Borrower may,
pursuant to the applicable Notice of Borrowing or Notice of Conversion/
Continuation, as the case may be, select an interest period (each an "INTEREST
PERIOD") to be applicable to such Loan, which Interest Period shall be, at
Borrower's option, either a one, two, three or six month period or if deposits
in the interbank Eurodollar market are generally available for such period to
all Lenders making the applicable Loans (as determined by such Lenders in good
faith based on prevailing market conditions), a nine or twelve month period;
PROVIDED that:
(i) the initial Interest Period for any LIBOR Loan shall commence on
the Funding Date in respect of such Loan, in the case of a Loan initially
made as a LIBOR Loan, or on the date specified in the applicable Notice of
Conversion/Continuation, in the case of a Loan converted to a LIBOR Loan;
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(ii) in the case of immediately successive Interest Periods applicable
to a LIBOR Loan continued as such pursuant to a Notice of Conversion/
Continuation, each successive Interest Period shall commence on the day on which
the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clauses (v) and (vi) of this subsection 2.2B, end on the last
Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A
Term Loans shall extend beyond the seventh anniversary of the Closing Date,
no Interest Period with respect to any portion of the Tranche B Term Loans
shall extend beyond the eighth anniversary of the Closing Date, and no
Interest Period with respect to any portion of the Revolving Loans shall
extend beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Tranche A
Term Loans or Tranche B Term Loans shall extend beyond a date on which
Borrower is required to make a scheduled payment of principal of the
Tranche A Term Loans or Tranche B Term Loans, as the case may be, unless
the sum of (a) the aggregate principal amount of Tranche A Term Loans or
Tranche B Term Loans, as the case may be, that are Base Rate Loans plus (b)
the aggregate principal amount of Tranche A Term Loans or Tranche B Term
Loans, as the case may be, that are LIBOR Loans with Interest Periods
expiring on or before such date equals or exceeds the principal amount
required to be paid on the Tranche A Term Loans or Tranche B Term Loans, as
the case may be, on such date;
(vii) there shall be no more than 20 Interest Periods outstanding
at any time; and
(viii) in the event Borrower fails to specify an Interest Period
for any LIBOR Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Borrower shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at
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maturity (including final maturity); PROVIDED that in the event any Swing Line
Loans or any Revolving Loans that are Base Rate Loans are prepaid pursuant to
subsection 2.4B, interest accrued on such Swing Line Loans or Revolving Loans
through the date of such prepayment shall be payable on the next succeeding
Interest Payment Date applicable to Base Rate Loans (or, if earlier, at final
maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, (i) Borrower shall have the option to convert at any time all or any part
of its outstanding Tranche A Term Loans, Tranche B Term Loans or Revolving Loans
equal to $2,500,000 and integral multiples of $250,000 in excess of that amount
from Loans bearing interest at a rate determined by reference to one basis to
Loans bearing interest at a rate determined by reference to an alternative basis
and (ii) upon the expiration of any Interest Period applicable to a LIBOR Loan,
Borrower shall have the option to continue as a LIBOR Loan all or any portion of
such Loan equal to $2,500,000 and integral multiples of $250,000 in excess of
that amount; PROVIDED, HOWEVER, that if, upon the expiration of any Interest
Period applicable to any LIBOR Loan, Borrower shall have failed to give a Notice
of Conversion/Continuation with respect to such LIBOR Loan in accordance with
this subsection 2.2D, Borrower shall be deemed to have given a timely Notice of
Conversion/Continuation electing to continue such LIBOR Loan as a LIBOR Loan
with an Interest Period of one month.
Borrower shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 11:00 A.M. (Boston, Massachusetts time) at
least one Business Day in advance of the proposed conversion date (in the case
of a conversion to a Base Rate Loan) and at least three Business Days in advance
of the proposed conversion/continuation date (in the case of a conversion to, or
a continuation of, a LIBOR Loan). A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a Business
Day), (ii) the amount and Type of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of a conversion
to, or a continuation of, a LIBOR Loan, the requested Interest Period, and (v)
in the case of a conversion to, or a continuation of, a LIBOR Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation,
Borrower may give Administrative Agent telephonic notice by the required time of
any proposed conversion/continuation under this subsection 2.2D; PROVIDED that
such notice shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent on or before the proposed
conversion/continuation date. Upon receipt of written or telephonic notice of
any proposed conversion/continuation under this subsection 2.2D, Administrative
Agent shall promptly transmit such notice by telefacsimile or telephone to each
Lender.
Neither Administrative Agent nor any Lender shall incur any liability
to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Borrower or
for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to
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any Loans in accordance with this Agreement pursuant to any such telephonic
notice Borrower shall have effected a conversion or continuation, as the case
may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6F, a
Notice of Conversion/Continuation for conversion to, or continuation of, a LIBOR
Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after
the related Interest Rate Determination Date, and Borrower shall be bound to
effect a conversion or continuation in accordance therewith.
E. POST-MATURITY INTEREST. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans or any fees or other amounts owed hereunder not paid when due, in
each case whether at stated maturity, by notice of prepayment, by acceleration
or otherwise, shall thereafter bear interest (including post-petition interest
in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for Base Rate Loans of the applicable
Type (any such fees and other amounts being deemed for such purposes to bear
interest on the same basis as Revolving Loans). Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans bearing interest at a rate determined by
reference to the Prime Rate, on the basis of a 365-day or 366-day year, as the
case may be, and (ii) in the case of LIBOR Loans and Base Rate Loans bearing
interest at a rate determined by reference to the Federal Funds Effective Rate,
on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a LIBOR Loan, the date of conversion of such LIBOR Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a LIBOR Loan, the date of
conversion of such Base Rate Loan to such LIBOR Loan, as the case may be, shall
be excluded; PROVIDED that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Borrower agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the aggregate principal
amount of outstanding Revolving Loans (but not any outstanding Swing Line Loans
or the Letter of Credit Usage) MULTIPLIED BY the Applicable
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Commitment Fee Percentage, such commitment fees to be calculated on the basis of
a 365-day or 366-day year, as the case may be, and the actual number of days
elapsed and to be payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year, commencing on the first such date to occur
after the Closing Date, and on the Revolving Loan Commitment Termination Date.
B. OTHER FEES. Borrower agrees to pay to Administrative Agent,
Syndication Agent, Documentation Agent, Arranger, and Lenders, as applicable,
such other fees in the amounts and at the times separately agreed upon between
Borrower and Administrative Agent, Syndication Agent, Documentation Agent and
Arranger, as the case may be.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION OF PROCEEDS OF
COLLATERAL AND PAYMENTS UNDER THE GUARANTIES.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS. Borrower shall make
principal payments on the Tranche A Term Loans made to Borrower in
installments on the second anniversary of the Closing Date and on each
subsequent anniversary of the Closing Date until the Tranche A Term Loans
are paid in full, each such installment to be in an amount equal to the
corresponding percentages set forth below of the original principal amount
of the Tranche A Term Loans made to Borrower:
Annual Percentage of Original
Principal Amount of
Anniversary of Closing Date Tranche A Term Loans
--------------------------- --------------------
Second 7%
Third 11%
Fourth 14%
Fifth 17%
Sixth 23%
Seventh 28%
-----
TOTAL 100%
; PROVIDED that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and PROVIDED, FURTHER that the Tranche
A Term Loans and all other amounts owed hereunder with respect to the
Tranche A Term Loans shall be paid in full no later than the seventh
anniversary of the Closing Date, and the final installment payable by
Borrower in respect of the Tranche A Term Loans on such date shall be in an
amount, if such amount is
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different from that specified above, sufficient to repay all amounts owing
by Borrower under this Agreement with respect to the Tranche A Term Loans.
(ii) SCHEDULED PAYMENTS OF TRANCHE B TERM LOANS. Borrower shall make
principal payments on the Tranche B Term Loans made to Borrower in
installments on the second anniversary of the Closing Date and on each
subsequent anniversary of the Closing Date until the Tranche B Term Loans
are paid in full, each such installment to be in an amount equal to the
corresponding percentages set forth below of the original principal amount
of the Tranche B Term Loans made to Borrower:
Annual Percentage of Original
Principal Amount of
Anniversary of Closing Date Tranche B Term Loans
--------------------------- --------------------
Second 1%
Third 1%
Fourth 1%
Fifth 1%
Sixth 1%
Seventh 1%
Eighth 94%
-----
TOTAL 100%
; PROVIDED that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and PROVIDED, FURTHER that the Tranche
B Term Loans and all other amounts owed hereunder with respect to the
Tranche B Term Loans shall be paid in full no later than the eighth
anniversary of the Closing Date, and the final installment payable by
Borrower in respect of the Tranche B Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient
to repay all amounts owing by Borrower under this Agreement with respect to
the Tranche B Term Loans.
B. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Borrower may, upon written or telephonic
notice to Administrative Agent at or prior to 1:00 P.M. (Boston,
Massachusetts time) on the date of prepayment, which notice, if telephonic,
shall be promptly confirmed in writing, at any time and from time to time
prepay any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $250,000 and integral multiples of $100,000 in
excess of that amount. Borrower may, upon not less than one Business Day's
prior written or telephonic notice, in the case of Base Rate Loans, and
three Business Days' prior written or telephonic notice, in the case of
LIBOR Loans, in each case given to Administrative Agent by 12:00 Noon
(Boston, Massachusetts time) on the date required
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and, if given by telephone, promptly confirmed in writing to Administrative
Agent (which original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to each Lender), at
any time and from time to time prepay any of Borrower's Tranche A Term
Loans, Tranche B Term Loans or Revolving Loans on any Business Day in whole
or in part in an aggregate minimum amount of $2,500,000 and integral
multiples of $250,000 in excess of that amount. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans specified
in such notice shall become due and payable on the prepayment date
specified therein. Any such voluntary prepayment shall be applied as
specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS. Borrower
may, upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written
or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; PROVIDED that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount. Borrower's notice
to Administrative Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Borrower's notice
and shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS. Subject to the provisions of
subsections 2.4B(iv)(d), the Loans shall be prepaid in the amounts and
under the circumstances set forth below, all such prepayments to be applied
as set forth below or as more specifically provided in subsection 2.4B(iv):
(a) PREPAYMENTS FROM NET ASSET SALE PROCEEDS. No later than the
fifth Business Day following the date on which any Net Asset Sale
Proceeds become Unreinvested Asset Sale Proceeds, Borrower shall
prepay its outstanding Term Loans in an aggregate amount equal to such
Unreinvested Asset Sale Proceeds; PROVIDED that Borrower may in its
sole discretion elect, pursuant to a written notice given by Borrower
to Administrative Agent describing such election, to postpone any
mandatory prepayments otherwise required to be made by Borrower
pursuant to this subsection 2.4B(iii)(a) (any such prepayment, until
the time actually made, being "POSTPONED PREPAYMENTS") until such time
as the aggregate amount of Postponed Prepayments equals $5,000,000.
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(b) PREPAYMENTS FROM CONSOLIDATED EXCESS CASH FLOW. In the
event that (i) the Consolidated Leverage Ratio shall be equal to or
greater than 4.00:1.00 as of the last day of any Fiscal Year
(commencing with Fiscal Year 1999) and (ii) there shall be
Consolidated Excess Cash Flow for such Fiscal Year, Borrower shall, no
later than the date on which Borrower is required to deliver audited
financial statements with respect to such Fiscal Year pursuant to
subsection 6.1(ii), prepay its outstanding Term Loans in an aggregate
amount equal to 50% of such Consolidated Excess Cash Flow (the
remaining 50% of such Consolidated Excess Cash Flow being "RETAINED
EXCESS CASH FLOW").
(c) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF REVOLVING
LOAN COMMITMENTS. Borrower shall from time to time prepay FIRST the
Swing Line Loans and SECOND the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Loan Commitments
shall not at any time exceed the Revolving Loan Commitments then in
effect.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF LOANS AND
ORDER OF MATURITY. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by Borrower in the applicable
notice of prepayment; PROVIDED that in the event Borrower fails to
specify the Loans of Borrower to which any such prepayment shall be
applied, such prepayment shall be applied FIRST to repay outstanding
Swing Line Loans to the full extent thereof, SECOND to repay
outstanding Revolving Loans to the full extent thereof, and THIRD to
repay outstanding Term Loans to the full extent thereof. Any
voluntary prepayment of Borrower's Term Loans pursuant to subsection
2.4B(i) shall be applied to prepay the Tranche A Term Loans and the
Tranche B Term Loans in the manner specified by Borrower and to reduce
the scheduled installments of principal of the Tranche A Term Loans
and the Tranche B Term Loans set forth in subsections 2.4A(i), or
2.4A(ii), as the case may be, in such order as Borrower shall direct.
(b) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS TO
TRANCHE A TERM LOANS, TRANCHE B TERM LOANS AND THE SCHEDULED
INSTALLMENTS OF PRINCIPAL THEREOF. Any mandatory prepayments of
Borrower's Term Loans pursuant to subsection 2.4B(iii) shall be
applied to prepay the Tranche A Term Loans and the Tranche B Term
Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof). Any mandatory prepayment of
the Tranche A Term Loans or the Tranche B Term Loans shall be applied
to scheduled installments of principal of such Tranche A Term Loans or
the Tranche B Term Loans, as the case may be, set forth in subsection
2.4A(i) or 2.4A(ii), respectively, that are unpaid at the time of such
prepayment in the forward order of maturity.
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(c) WAIVER OF CERTAIN MANDATORY PREPAYMENTS. Anything contained
herein to the contrary notwithstanding, so long as any Tranche A Term
Loans are outstanding, in the event Borrower is required to make any
mandatory prepayment (a "WAIVABLE MANDATORY PREPAYMENT") of the
Tranche B Term Loans, pursuant to subsection 2.4B(iii), (V) Borrower
may, by written or telephonic notice (promptly confirmed in writing)
given to Administrative Agent not less than three Business Days prior
to the date (the "REQUIRED PREPAYMENT DATE") on which Borrower is
required to make such Waivable Mandatory Prepayment, elect to offer
each Lender holding an outstanding Tranche B Term Loan the option to
refuse such Lender's Pro Rata Share of such Waivable Mandatory
Prepayment, (W) in the event Borrower gives such notice to
Administrative Agent, Administrative Agent will promptly notify each
such Lender of the amount of such Lender's Pro Rata Share of such
Waivable Mandatory Prepayment and such Lender's option to refuse such
amount, (X) each such Lender may exercise such option by giving
written notice to Borrower and Administrative Agent of its election to
do so on or before the first Business Day (the "CUTOFF DATE") prior to
the Required Prepayment Date, (Y) on the Required Prepayment Date,
Borrower shall pay to Administrative Agent an amount equal to the sum
of (1) that portion of the Waivable Mandatory Prepayment payable to
those Lenders that have elected not to exercise such option (it being
understood that any Lender which does not notify Borrower and
Administrative Agent of its election to exercise such option on or
before the Cutoff Date shall be deemed to have elected, as of the
Cutoff Date, not to exercise such option), which amount shall be
applied to prepay the Tranche B Term Loans of such Lenders in
accordance with subsection 2.4B(iv)(b) PLUS (2) 50% of that portion
(the "WAIVED PORTION") of the Waivable Mandatory Prepayment otherwise
payable to those Lenders that have elected to exercise such option,
which amount shall be applied to prepay the Tranche A Term Loans in
the same manner as voluntary prepayments of the Tranche A Term Loans
are applied pursuant to subsection 2.4B(iv)(a), and (Z) Borrower shall
be entitled to retain the remaining 50% of the Waived Portion (such
amount being a "RETAINED PREPAYMENT") to be used for general corporate
purposes.
(d) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND LIBOR
LOANS; OPTION TO DEFER CERTAIN MANDATORY PREPAYMENTS OF LIBOR LOANS.
Considering Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans being prepaid separately, any prepayment thereof shall be
applied first to Base Rate Loans to the full extent thereof before
application to LIBOR Loans, in each case in a manner which minimizes
the amount of any payments required to be made by Borrower pursuant to
subsection 2.6D; PROVIDED that, anything contained in this Agreement
to the contrary notwithstanding, in the event that (1) the application
of any mandatory prepayment pursuant to subsection 2.4B(iii) in
accordance with the foregoing provisions of this subsection 2.4B(iv)
would result in the prepayment of all or any portion of a LIBOR Loan
prior to the end of the Interest Period applicable thereto, (2) the
remaining term of such Interest Period is less than three
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months, and (3) no Potential Event of Default or Event of Default
shall have occurred and be continuing, Borrower shall have the option,
by giving written notice (or telephonic notice promptly confirmed in
writing) to Administrative Agent of its election to do so on or before
the first Business Day prior to the date on which such prepayment
would otherwise be required to be made, to defer the making of such
prepayment until the last day of such Interest Period or such earlier
date as Borrower may specify in such notice.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Borrower of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in same day funds, in each case without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 3:00 P.M. (Boston, Massachusetts time)
on the date due at the applicable Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that time
on such due date shall be deemed to have been paid by Borrower on the next
succeeding Business Day.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its applicable Lending
Office or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Administrative Agent and the
commitment fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of any LIBOR Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
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D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER THE
GUARANTIES.
(i) APPLICATION OF PROCEEDS OF COLLATERAL. All proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral
Document may, in the discretion of Administrative Agent, be held by
Administrative Agent as Collateral for, and/or (then or at any time
thereafter) applied in full or in part by Administrative Agent against, the
applicable Secured Obligations (as defined in such Collateral Document) in
the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Administrative Agent and its agents and counsel, and all other
expenses, liabilities and advances made or incurred by Administrative
Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to indemnification under such
Collateral Document and all advances made by Administrative Agent
thereunder for the account of the applicable Loan Party, and to the
payment of all costs and expenses paid or incurred by Administrative
Agent in connection with the exercise of any right or remedy under
such Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to
the payment of all other such Secured Obligations for the ratable
benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to
the payment to or upon the order of such Loan Party or to whomsoever
may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER THE GUARANTIES. All payments
received by Administrative Agent under the Guaranties shall be applied
promptly from time to time by Administrative Agent in the following order
of priority:
(a) To the payment of the costs and expenses of any collection
or other realization under the Guaranties, including reasonable
compensation to Administrative Agent and its agents and counsel, and
all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, all in accordance with
the terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such payments, to
the payment of all other Guarantied Obligations (as defined in such
Guaranty) for the ratable benefit of the holders thereof; and
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(c) thereafter, to the extent of any excess such payments, to
the payment to the applicable Guarantor or to whomsoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans, together with a portion
of the proceeds of the initial Revolving Loans (the "RECAPITALIZATION REVOLVING
LOANS") and the proceeds of the debt and equity capitalization of Borrower
described in subsection 4.1C(ii), were or shall be applied by Borrower to fund
the Recapitalization Financing Requirements.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of the
Recapitalization Revolving Loans shall be applied by Borrower as provided in
subsection 2.5A. The proceeds of any other Revolving Loans and any Swing Line
Loans shall be applied by Borrower for general corporate purposes.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to LIBOR Loans as to the
matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (Boston, Massachusetts time), on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent clearly demonstrable error, be final, conclusive and binding upon
all parties) the interest rate that shall apply to LIBOR Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Borrower and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have reasonably determined (which determination
shall, absent clearly demonstrable error, be final and conclusive and binding
upon all parties hereto), on any Interest Rate Determination Date with respect
to any LIBOR Loans, that by reason of circumstances affecting the London
interbank market for Dollars adequate and fair means do not exist for
ascertaining the interest rate applicable to such Loans on the basis provided
for in the definition of LIBOR, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Borrower and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, LIBOR Loans until such time as Administrative Agent notifies
Borrower and Lenders that the circumstances giving rise to such notice no longer
exist (which notice Administrative Agent shall give at such time as such
circumstances no longer exist), and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Borrower with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by
Borrower.
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C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR LOANS. In the event that on
any date any Lender shall have reasonably determined (which determination shall
be made only after consultation with Borrower and Administrative Agent, it being
understood that any such determination so made shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto)
that the making, maintaining or continuation of its LIBOR Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable as a result of contingencies
occurring after the date of this Agreement which materially and adversely affect
the London interbank market then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, LIBOR Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a LIBOR Loan then being
requested by Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding LIBOR Loans (the "AFFECTED LOANS") shall
be terminated at the earlier to occur of the expiration of the Interest Period
then in effect with respect to the Affected Loans or when required by law, and
(d) any Affected Loans shall automatically convert into Base Rate Loans on the
date of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a LIBOR Loan
then being requested by Borrower pursuant to a Notice of Borrowing or a Notice
of Conversion/Continuation, Borrower shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, LIBOR Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Borrower shall compensate each Lender, upon written request by that Lender
(which request shall set forth in reasonable detail the basis for requesting
such amounts), for all reasonable losses, costs and expenses sustained by that
Lender (including losses, costs and expenses actually sustained by that Lender
in connection with the liquidation or re-employment of deposits or other funds
acquired by it to make or carry the subject LIBOR Loans but excluding any loss
of anticipated profits): (i) if for any reason (other than a default by that
Lender or Administrative Agent) a borrowing of any LIBOR Loan by Borrower does
not occur on a date specified therefor in a Notice of Borrowing or a telephonic
request for borrowing, or a conversion to or
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continuation of any LIBOR Loan by Borrower does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
any of Borrower's LIBOR Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan or (iii) if any prepayment of any of
Borrower's LIBOR Loans is not made on any date specified in a notice of
prepayment given by Borrower.
E. BOOKING OF LIBOR LOANS. Any Lender may make, carry or transfer LIBOR
Loans at, to, or for the account of any of its branch offices or the office of
an Affiliate of that Lender.
F. LIBOR LOANS AFTER DEFAULT. If, after the occurrence of and during the
continuation of a Potential Event of Default or an Event of Default,
Administrative Agent or Requisite Lenders have determined in its or their sole
discretion not to permit the making or continuation of any Loans as, or the
conversion of any Loans to, LIBOR Loans and Administrative Agent has so notified
Borrower in writing (i) Borrower may not elect to have any Loans be made as or
converted to LIBOR Loans or elect to have any outstanding LIBOR Loans continued
as such after the expiration of the Interest Periods then in effect for such
LIBOR Loans, (ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by Borrower with respect to
a requested borrowing or conversion/continuation in respect of LIBOR Loans that
has not yet occurred shall be deemed to be rescinded by Borrower.
2.7 INCREASED COSTS; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall reasonably determine (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto) that the introduction or adoption (after
the date hereof) of any law, treaty or governmental rule, regulation or order,
or that any change (after the date hereof) in any law, treaty or governmental
rule, regulation or order or in the interpretation, administration or
application thereof, or that any determination (after the date hereof) by a
court or governmental authority, or that compliance by such Lender with any
guideline, request or directive issued or made (after the date hereof) by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law), in any such case:
(i) subjects such Lender (or its applicable Lending Office) to any
additional Tax (excluding (x) any Tax on the overall net income of such
Lender, (y) any Tax imposed on any Lender as a result of a present or
former connection between the jurisdiction imposing such Taxes and such
Lender (except a present connection arising solely from such Lender having
executed, delivered or performed its obligations or received a payment
under, or enforced any Loan Documents) and (z) any Tax with respect
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to which the provisions of subsection 2.7B are applicable) with respect to
this Agreement or any of its obligations hereunder or any payments to such
Lender (or its applicable Lending Office) of principal, interest, fees or
any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender; or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Lender (or its applicable Lending Office)
or its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable Lending Office) with
respect thereto; then, in any such case, Borrower shall pay to such Lender,
promptly after receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as may be necessary to compensate such
Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such Lender under this
subsection 2.7A, which statement shall be conclusive and binding upon all
parties hereto absent clearly demonstrable error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by Borrower
under this Agreement and the other Loan Documents shall (except to the
extent required by law) be paid free and clear of, and without any
deduction or withholding for or on account of, any Tax imposed, levied,
collected, withheld or assessed by or within the United States of America
or any political subdivision in or of the United States of America or any
other jurisdiction from or to which a payment is made by or on behalf of
Borrower or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment,
excluding (x) any Tax on the overall net income of such Lender and (y) any
Tax imposed on any Agent or any Lender as a result of a present or former
connection between the jurisdiction imposing such Taxes and such Lender
(except a present connection arising solely from such Agent or such Lender
having executed, delivered or performed its obligations or received a
payment under, or enforced any Loan Documents) (any such non-excluded Tax,
a "NON-EXCLUDED TAX").
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(ii) GROSSING-UP OF PAYMENTS. If Borrower or any other Person is
required by law to make any deduction or withholding on account of any such
Non-Excluded Tax from any sum paid or payable by Borrower to Administrative
Agent or any Lender under any of the Loan Documents:
(a) Borrower shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrower
becomes aware of it;
(b) Borrower shall pay any such Non-Excluded Tax before the date
on which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Borrower) for its own account or (if
that liability is imposed on Administrative Agent or such Lender, as
the case may be) on behalf of and in the name of Administrative Agent
or such Lender;
(c) the sum payable by Borrower in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or
payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Non-Excluded Tax which it is
required by clause (b) above to pay, Borrower shall deliver to
Administrative Agent evidence satisfactory to the other affected
parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
PROVIDED that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change in any
applicable law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, after
the date hereof (in the case of each Lender listed on the signature pages
hereof) or after the date of the Assignment Agreement pursuant to which
such Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to
such Lender.
(iii) INDEMNIFICATION. Borrower agrees to indemnify and hold
harmless each Lender and each Agent for the full amount of Non-Excluded
Taxes that are payable by such Lender or such Agent and any penalties,
interest, additions to tax, expenses or other similar liabilities arising
therefrom or with respect thereto, whether or not such Non-
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Excluded Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 45 days after the date such Lender or
such Agent makes written demand therefor.
(iv) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is not a United States person as defined in
Section 770(a) of the Code (for purposes of this subsection 2.7B(iv),
a "NON-US LENDER") shall deliver to Administrative Agent for
transmission to Borrower, on or prior to the Closing Date (in the case
of each Lender listed on the signature pages hereof) or on or prior to
the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of Borrower or Administrative
Agent (each in the reasonable exercise of its discretion), (1) two
original copies of Internal Revenue Service Form 1001 or 4224 (or any
successor forms), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder
to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents or (2) if such Lender is not a
"bank" or other Person described in Section 881(c)(3) of the Internal
Revenue Code and cannot deliver either Internal Revenue Service Form
1001 or 4224 pursuant to clause (1) above, a Certificate re Non-Bank
Status together with two original copies of Internal Revenue Service
Form W-8 (or any successor form), properly completed and duly executed
by such Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any
of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iv)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Administrative Agent for
transmission to Borrower two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case may
be, properly completed and duly executed by such Lender, together with
any other certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to
payments to such
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Lender of interest payable under any of the Loan Documents or (2)
notify Administrative Agent and Borrower of its inability to deliver
any such forms, certificates or other evidence.
(c) Borrower shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) or to
indemnify any Non-US Lender subsection 2.7B(iii) if such Lender shall
have failed to satisfy the requirements of clause (a) or (b)(1) of
this subsection 2.7B(iv); PROVIDED that if such Lender shall have
satisfied the requirements of subsection 2.7B(iv)(a) on the Closing
Date (in the case of each Lender listed on the signature pages hereof)
or on the date of the Assignment Agreement pursuant to which it became
a Lender (in the case of each other Lender), nothing in this
subsection 2.7B(iv)(c) shall relieve Borrower of its obligation to pay
any additional amounts pursuant to clause (c) of subsection 2.7B(ii)
or to indemnify any Lender pursuant to subsection 2.7B(iii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender
is not subject to withholding as described in subsection 2.7B(iv)(a).
C. REFUND AND CONTEST. If Borrower determines in good faith that a
reasonable basis exists for contesting any Non-Excluded Tax for which
indemnification has been demanded hereunder, the relevant Lender (to the extent
such Lender reasonably determines in good faith that it will not suffer any
adverse effect as a result thereof) or any Agent, as applicable, shall cooperate
with Borrower in challenging the imposition of such Non-Excluded Tax at
Borrower's expense if so requested by Borrower in writing. If any Lender or any
Agent, as applicable receives a refund of a Non-Excluded Tax for which a payment
has been made by Borrower pursuant to this Agreement, which refund in the good
faith judgment of such Lender or such Agent, as the case may be, is attributable
to Borrower, then such Lender or such Agent, as the case may be, shall reimburse
Borrower for such amount as such Lender or such Agent, as the case may be,
determines to be the proportion of the refund as will leave it, after such
reimbursement, in no better or worse position than it would have been in if the
payment had not been required. Neither Lenders nor Agents shall be obliged to
disclose information regarding its tax affairs or computations to Borrower in
connection with this subsection 2.7C or any other provision of subsection 2.7B.
D. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the introduction or adoption (after the date hereof) of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or that any
change (after the date hereof) therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or that
compliance by any Lender (or its applicable Lending Office) with any guideline,
request or directive regarding capital adequacy (whether or not having the force
of law) introduced or adopted (after
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the Closing Date) by any such governmental authority, central bank or comparable
agency, in any such case has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with respect to the Loans
or the Letters of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such introduction, adoption,
change or compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy), then from time to
time, promptly after receipt by Borrower from such Lender of the statement
referred to in the next sentence, Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling
corporation for such reduction. Such Lender shall deliver to Borrower (with a
copy to Administrative Agent) a written statement setting forth in reasonable
detail the basis of the calculation of such additional amounts, which statement
shall be conclusive and binding upon all parties hereto absent clearly
demonstrable error.
2.8 NOTICE OF CERTAIN COSTS; OBLIGATION OF LENDERS AND ISSUING LENDERS TO
MITIGATE.
A. Notwithstanding anything in this Agreement to the contrary, to
the extent subsection 2.6, 2.7 or 3.6 requires any Lender or Issuing Lender to
give notice to Borrower of an event or a condition that would entitle such
Lender or Issuing Lender to receive payments under subsection 2.6, 2.7 or 3.6,
as the case may be, in the event such notice is given by such Lender or Issuing
Lender more than 180 days after such Lender or Issuing Lender has knowledge of
the occurrence or existence of such event or circumstance, such Lender or
Issuing Lender shall not be entitled to receive any such payments under
subsection 2.6, 2.7 or 3.6, as the case may be, in respect of the period ending
on the Business Day immediately preceding the date on which such notice is given
to Borrower.
B. Each Lender and Issuing Lender agrees that, if an event occurs or
a condition arises that would cause such Lender to become an Affected Lender or
that would entitle such Lender or Issuing Lender to receive payments under
subsection 2.7 or subsection 3.6, it will, if so requested by Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
(i) make, issue, fund or maintain the Commitments of such Lender or the affected
Loans or Letters of Credit (or participations therein) of such Lender or Issuing
Lender through another lending or letter of credit office of such Lender or
Issuing Lender or (ii) take such other measures as such Lender or Issuing Lender
may deem reasonable in good faith, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if the making, issuing, funding or maintaining of such
Commitments or Loans or Letters of Credit (or participations therein) through
such other lending or letter of credit office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or Letters of Credit (or participations therein) or
cause such Lender or Issuing Lender to suffer any economic, legal or regulatory
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disadvantage; PROVIDED that nothing in this subsection 2.8 shall affect or
postpone any of the Obligations of Borrower or the rights of any Lender provided
in subsection 2.6C, 2.7 or 3.6.
2.9 DEFAULTING LENDERS.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender (a "DEFAULTING LENDER") defaults (a "FUNDING DEFAULT") in
its obligation to fund any Revolving Loan (a "DEFAULTED REVOLVING LOAN") in
accordance with subsection 2.1 as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority, then (i) during any Default Period (as defined
below) with respect to such Defaulting Lender, such Defaulting Lender shall be
deemed not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents,
(ii) to the extent permitted by applicable law, until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4B(i) shall, if Borrower so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving Loan
Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment
of the Revolving Loans pursuant to subsection 2.4B(iii) shall, if Borrower so
directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed that
Borrower shall be entitled to retain any portion of any mandatory prepayment of
the Revolving Loans that is not paid to such Defaulting Lender solely as a
result of the operation of the provisions of this clause (b), (iii) such
Defaulting Lender's Revolving Loan Commitment and outstanding Revolving Loans
and such Defaulting Lender's Pro Rata Share of the Letter of Credit Usage shall
be excluded for purposes of calculating the commitment fee payable to Lenders
pursuant to subsection 2.3A in respect of any day during any Default Period with
respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any commitment fee pursuant to subsection 2.3A with respect
to such Defaulting Lender's Revolving Loan Commitment in respect of any Default
Period with respect to such Defaulting Lender, and (iv) the Total Utilization of
Revolving Loan Commitments as at any date of determination shall be calculated
as if such Defaulting Lender had funded all Defaulted Revolving Loans of such
Defaulting Lender.
For purposes of this Agreement, (I) "DEFAULT PERIOD" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable, (B)
the date on which (1) the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Revolving Loans of such Defaulting Lender or by the
non-pro rata application of any voluntary or mandatory prepayments of the
Revolving Loans in accordance
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with the terms of this subsection 2.9 or by a combination thereof) and (2) such
Defaulting Lender shall have delivered to Borrower and Administrative Agent a
written reaffirmation of its intention to honor its obligations under this
Agreement with respect to its Revolving Loan Commitment, and (C) the date on
which Borrower, Administrative Agent and Requisite Lenders waive all Funding
Defaults of such Defaulting Lender in writing, and (II) "DEFAULT EXCESS" means,
with respect to any Defaulting Lender, the excess, if any, of such Defaulting
Lender's Pro Rata Share of the aggregate outstanding principal amount of
Revolving Loans of all Lenders (calculated as if all Defaulting Lenders (other
than such Defaulting Lender) had funded all of their respective Defaulted
Revolving Loans) over the aggregate outstanding principal amount of Revolving
Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this subsection 2.9, performance
by Borrower of its obligations under this Agreement and the other Loan Documents
shall not be excused or otherwise modified, as a result of any Funding Default
or the operation of this subsection 2.9. The rights and remedies against a
Defaulting Lender under this subsection 2.9 are in addition to other rights and
remedies which Borrower may have against such Defaulting Lender with respect to
any Funding Default and which Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.
2.10 REMOVAL OR REPLACEMENT OF A LENDER.
A. Anything contained in this Agreement to the contrary
notwithstanding, in the event that:
(i) (a) any Lender (an "INCREASED-COST LENDER") shall give notice to
Borrower that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under subsection 2.7 or subsection 3.6, (b)
the circumstances which have caused such Lender to be an Affected Lender or
which entitle such Lender to receive such payments shall remain in effect,
and (c) such Lender shall fail to withdraw such notice within five Business
Days after Borrower's request for such withdrawal; or
(ii) (a) any Lender shall become a Defaulting Lender, (b) the Default
Period for such Defaulting Lender shall remain in effect, and (c) such
Defaulting Lender shall fail to cure the default as a result of which it
has become a Defaulting Lender within five Business Days after Borrower's
request that it cure such default; or
(iii) (a) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions of
this Agreement as contemplated by clauses (i) through (iv) of the first
proviso to subsection 10.6A, the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"NON-CONSENTING LENDER") whose consent is required shall not have been
obtained, and (b) the failure to obtain Non-Consenting Lenders' consents
does not result solely from the exercise of Non-Consenting Lenders' rights
(and the withholding of
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any required consents by Non-Consenting Lenders) pursuant to the second
proviso to subsection 10.6A;
then, and in each such case, Borrower shall have the right, at its option, to
remove or replace the applicable Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the "TERMINATED LENDER") to the extent permitted by
subsection 2.10B.
B. Borrower may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so:
(i) elect to (a) terminate the Revolving Loan Commitment, if any, of
such Terminated Lender upon receipt by such Terminated Lender of such
notice and (b) prepay on the date of such termination any outstanding Loans
made by such Terminated Lender, together with accrued and unpaid interest
thereon and any other amounts payable to such Terminated Lender hereunder
pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or otherwise;
PROVIDED that, in the event such Terminated Lender has any Loans
outstanding at the time of such termination, the written consent of
Administrative Agent and Requisite Lenders (which consent shall not be
unreasonably withheld or delayed) shall be required in order for Borrower
to make the election set forth in this clause (i); or
(ii) elect to cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans and its
Revolving Loan Commitment, if any, in full to one or more Eligible
Assignees (each a "REPLACEMENT LENDER") in accordance with the provisions
of subsection 10.1B; PROVIDED that (a) on the date of such assignment,
Borrower shall pay any amounts payable to such Terminated Lender pursuant
to subsection 2.6, subsection 2.7 or subsection 3.6 or otherwise as if it
were a prepayment and (b) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time
of such assignment, to each matter in respect of which such Terminated
Lender was a Non-Consenting Lender;
PROVIDED that (X) Borrower may not make either of the elections set forth in
clauses (i) or (ii) above with respect to any Non-Consenting Lender unless
Borrower also makes one of such elections with respect to each other Terminated
Lender which is a Non-Consenting Lender and (Y) Borrower may not make either of
such elections with respect to any Terminated Lender that is an Issuing Lender
unless, prior to the effectiveness of such election, Borrower shall have caused
each outstanding Letter of Credit issued by such Issuing Lender to be cancelled
or backstopped by a successor Issuing Lender.
C. Upon the prepayment of all amounts owing to any Terminated Lender and
the termination of such Terminated Lender's Revolving Loan Commitment, if any,
pursuant to clause (i) of subsection 2.10B, (i) SCHEDULE 2.1 shall be deemed
modified to reflect any corresponding changes in the Revolving Loan Commitments
and (ii) such Terminated Lender shall no longer constitute a "Lender" for
purposes of this Agreement; PROVIDED that any rights of such Terminated Lender
to indemnification under this Agreement (including under
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subsections 2.6D, 2.7, 3.6, 10.2 and 10.3) shall survive as to such Terminated
Lender reasonably satisfactory to such Terminated Lender.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Borrower requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender
make Swing Line Loans pursuant to subsection 2.1A(iv), Borrower may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Issuing Lenders issue Letters of Credit for
the account of Borrower for the purposes specified in the definitions of
Commercial Letters of Credit and Standby Letters of Credit. Subject to the
terms and conditions of this Agreement and in reliance upon the representations
and warranties of Borrower herein set forth, any one or more Lenders may, but
(except as provided in subsection 3.1B(ii)) shall not be obligated to, issue
such Letters of Credit in accordance with the provisions of this subsection 3.1;
PROVIDED that Borrower shall not request that any Lender issue (and no Lender
shall issue):
(i) any Letter of Credit if, after giving effect to such issuance,
the Total Utilization of Revolving Loan Commitments would exceed the
Revolving Loan Commitments then in effect;
(ii) any Standby Letter of Credit having an expiration date later than
the earlier of (a) five Business Days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; PROVIDED that the
immediately preceding clause (b) shall not prevent any Issuing Lender from
agreeing that a Standby Letter of Credit will automatically be extended for
one or more successive periods not to exceed one year each unless such
Issuing Lender elects not to extend for any such additional period; and
PROVIDED, FURTHER that such Issuing Lender shall elect not to extend such
Standby Letter of Credit if it has been notified by Administrative Agent
that an Event of Default has occurred and is continuing (and has not been
waived in accordance with subsection 10.6) at the time such Issuing Lender
must elect whether or not to allow such extension;
(iii) any Commercial Letter of Credit having an expiration date
(a) later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion;
(iv) any Letter of Credit that does not provide for sight payment; or
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(v) any Letter of Credit that is denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF REQUEST FOR ISSUANCE. Whenever Borrower desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent a
Notice of Request for Issuance of Letter of Credit substantially in the
form of EXHIBIT III annexed hereto no later than 12:00 Noon (Boston,
Massachusetts time) at least three Business Days (in the case of Standby
Letters of Credit) or five Business Days (in the case of Commercial Letters
of Credit), or in each case such shorter period as may be agreed to by
Issuing Lender in any particular instance, in advance of the proposed date
of issuance or, in the case where the Issuing Lender is the Administrative
Agent, as otherwise agreed to by such Issuing Lender and Borrower. The
Notice of Request for Issuance of Letter of Credit shall specify (a) the
proposed date of issuance (which shall be a Business Day), (b) whether the
Letter of Credit is to be a Standby Letter of Credit or a Commercial Letter
of Credit, (c) the face amount of the Letter of Credit, (d) the expiration
date of the Letter of Credit, (e) the name and address of the beneficiary,
and (f) either the verbatim text of the proposed Letter of Credit or the
proposed terms and conditions thereof, including a precise description of
any documents to be presented by the beneficiary which, if presented by the
beneficiary in substantial compliance with the terms and conditions of the
Letter of Credit on or prior to the expiration date of the Letter of
Credit, would require Issuing Lender to make payment under the Letter of
Credit; PROVIDED that Issuing Lender, in its reasonable discretion, may
require changes in the text of the proposed Letter of Credit or any such
documents; and PROVIDED, FURTHER that no Letter of Credit shall require
payment against a conforming draft to be made thereunder on the same
Business Day (under the laws of the jurisdiction in which the office of
Issuing Lender to which such draft is required to be presented is located)
that such draft is presented if such presentation is made after 11:00 A.M.
(in the time zone of such office of Issuing Lender) on such Business Day.
Borrower shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Borrower is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Borrower is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by Administrative
Agent of a Notice of Request for Issuance of Letter of Credit pursuant to
subsection 3.1B(i) requesting the issuance of a Letter of Credit, in the
event Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Borrower, and Administrative
Agent shall be the Issuing Lender with respect thereto. In the event that
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Administrative Agent, in its sole discretion, elects not to issue such
Letter of Credit, Administrative Agent shall promptly so notify Borrower,
whereupon Borrower may request any other Lender to issue such Letter of
Credit by delivering to such Lender a copy of the applicable Notice of
Request for Issuance of Letter of Credit. Any Lender so requested to issue
such Letter of Credit shall promptly notify Borrower and Administrative
Agent whether or not, in its sole discretion, it has elected to issue such
Letter of Credit, and any such Lender which so elects to issue such Letter
of Credit shall be the Issuing Lender with respect thereto. In the event
that all other Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue
such Letter of Credit, Administrative Agent shall be obligated to issue
such Letter of Credit and shall be the Issuing Lender with respect thereto,
notwithstanding the fact that the Letter of Credit Usage with respect to
such Letter of Credit and with respect to all other Letters of Credit
issued by Administrative Agent, when aggregated with Administrative Agent's
outstanding Revolving Loans and Swing Line Loans, may exceed Administrative
Agent's Revolving Loan Commitment then in effect.
Borrower shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Borrower is required to certify in the applicable Notice
of Request for Issuance of Letter of Credit is no longer true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Borrower is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, the Issuing Lender shall issue the requested Letter of
Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) NOTIFICATION TO LENDERS REGARDING STANDBY LETTERS OF CREDIT.
Upon the issuance of any Standby Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and each other Lender of
such issuance, which notice shall be accompanied by a copy of such Standby
Letter of Credit. Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with such notice),
Administrative Agent shall notify each Lender of the amount of such
Lender's respective participation in such Standby Letter of Credit,
determined in accordance with subsection 3.1C. In addition, on the first
Business Day of each calendar month each Issuing Lender shall deliver to
Administrative Agent and each Lender a report setting forth the maximum
aggregate amount which is at or any time thereafter may become available
for drawing under all Standby Letters of Credit issued by such Issuing
Lender then outstanding, and identifying each Standby Letter of Credit
issued by such Issuing Lender and the maximum amount that may become
available thereunder.
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(v) REPORTS TO ADMINISTRATIVE AGENT AND LENDERS REGARDING COMMERCIAL
LETTERS OF CREDIT. Each Issuing Lender (other than Administrative Agent)
with respect to any Commercial Letter of Credit shall deliver to
Administrative Agent, by telefacsimile transmission on the first Business
Day of each week, a report setting forth the daily aggregate amount
available for drawing during the immediately preceding week under all
outstanding Commercial Letters of Credit issued by such Issuing Lender.
Within 15 days after the end of each calendar month ending after the
Closing Date, so long as any Commercial Letter of Credit shall have been
outstanding during such calendar month, Administrative Agent shall deliver
to each Lender a report setting forth for such calendar month the daily
aggregate amount available to be drawn under all Commercial Letters of
Credit that were outstanding during such calendar month.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Borrower agrees to pay the following amounts with respect to Letters
of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.125% per annum MULTIPLIED BY the daily amount available to be
drawn under such Letter of Credit and (b) a letter of credit fee, payable
to Administrative Agent for the account of Lenders, equal to the Applicable
Tranche A LIBOR Margin MINUS 0.125% per annum MINUS the Applicable
Commitment Fee Percentage MULTIPLIED BY the daily amount available to be
drawn under such Letter of Credit, each such fronting fee or letter of
credit fee to be payable in arrears on and to (but excluding) each March
31, June 30, September 30 and December 31 of each year and on the Revolving
Loan Commitment Termination Date, in each case computed on the basis of a
365-day or 366-day year, as the case may be, for the actual number of days
elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause (i) above), customary
documentary and processing charges payable directly to the applicable
Issuing Lender for its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2 the daily amount available to be drawn under any Letter of Credit shall be
determined as of the close of
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business on any date of determination. Promptly upon receipt by Administrative
Agent of any amount described in clause (i)(b) of this subsection 3.2,
Administrative Agent shall distribute to each Lender its Pro Rata Share of such
amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in substantial compliance with
the terms and conditions of such Letter of Credit.
B. REIMBURSEMENT BY BORROWER OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Borrower and
Administrative Agent, and Borrower shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in Dollars and in same day funds
equal to the amount of such honored drawing; PROVIDED that, anything contained
in this Agreement to the contrary notwithstanding, (i) unless Borrower shall
have notified Administrative Agent and such Issuing Lender prior to 11:00 A.M.
(Boston, Massachusetts time) on the date such drawing is honored that Borrower
intends to reimburse such Issuing Lender for the amount of such honored drawing
with funds other than the proceeds of Revolving Loans, Borrower shall be deemed
to have given a timely Notice of Borrowing to Administrative Agent requesting
Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement
Date in an amount in Dollars equal to the amount of such honored drawing and
(ii) subject to satisfaction or waiver of the conditions specified in subsection
4.2B, Lenders shall, on the Reimbursement Date, make Revolving Loans that are
Base Rate Loans in the amount of such honored drawing, the proceeds of which
shall be applied directly by Administrative Agent to reimburse such Issuing
Lender for the amount of such honored drawing; and PROVIDED, FURTHER that if for
any reason proceeds of Revolving Loans are not received by such Issuing Lender
on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Borrower shall reimburse such Issuing Lender, on demand, in an amount
in same day funds equal to the excess of the amount of such honored drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Borrower shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that Borrower shall fail for
any reason to reimburse any Issuing Lender as provided in subsection 3.3B
in an amount equal to the
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amount of any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, such Issuing Lender shall promptly notify each other
Lender of the unreimbursed amount of such honored drawing and of such other
Lender's respective participation therein based on such Lender's Pro Rata
Share. Each Lender shall make available to such Issuing Lender an amount
equal to its respective participation, in Dollars and in same day funds, at
the office of such Issuing Lender specified in such notice, not later than
12:00 Noon (Boston, Massachusetts time) on the first Business Day (under
the laws of the jurisdiction in which such office of such Issuing Lender is
located) after the date notified by such Issuing Lender. Anything
contained herein to the contrary notwithstanding, each Lender's obligation
to make available to such Issuing Lender on such Business Day the amount of
such Lender's participation pursuant to the immediately preceding sentence
shall be absolute and unconditional and shall not be affected by any
circumstance, including (a) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against such Issuing Lender,
Borrower or any other Person for any reason whatsoever; (b) the occurrence
or continuation of an Event of Default or a Potential Event of Default; (c)
any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Borrower or any of its
Subsidiaries; (d) any breach of this Agreement or any other Loan Document
by any party thereto; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; PROVIDED that
nothing in this subsection 3.3C shall be deemed to prejudice the right of
any Lender to recover from any Issuing Lender any amounts made available by
such Lender to such Issuing Lender pursuant to this subsection 3.3C in the
event that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of such
Issuing Lender. In the event that any Lender fails to make available to
such Issuing Lender on such Business Day the amount of such Lender's
participation in such Letter of Credit as provided in this subsection 3.3C,
such Issuing Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the Federal Funds Effective
Rate for three Business Days and thereafter at the Base Rate.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM BORROWER.
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such honored
drawing such other Lender's Pro Rata Share of all payments subsequently
received by such Issuing Lender from Borrower in reimbursement of such
honored drawing when such payments are received. Any such distribution
shall be made to a Lender at its primary address set forth below its name
on the appropriate signature page hereof or at such other address as such
Lender may request.
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D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWER. Borrower agrees to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date such drawing is honored
to but excluding the date such amount is reimbursed by Borrower (including
any such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date such
drawing is honored to but excluding the Reimbursement Date, the rate then
in effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this Agreement with respect
to Revolving Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed in the manner specified in
subsection 2.2F for the computation of interest on Base Rate Loans and
shall be payable on demand or, if no demand is made, on the date on which
the related drawing under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each other
Lender, out of the interest received by such Issuing Lender in respect of
the period from the date such drawing is honored to but excluding the date
on which such Issuing Lender is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other Lender would have
been entitled to receive in respect of the letter of credit fee that would
have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored under such Letter
of Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any
portion of such honored drawing, such Issuing Lender shall distribute to
each other Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Lender's Pro Rata
Share of any interest received by such Issuing Lender in respect of that
portion of such honored drawing so reimbursed by other Lenders for the
period from the date on which such Issuing Lender was so reimbursed by
other Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Borrower. Any such distribution shall be
made to a Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Borrower to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i)
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shall be unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances including any of the
following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Borrower or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Borrower, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Borrower or one
of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question.
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Borrower hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or
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indirect, of (i) the issuance of any Letter of Credit by such Issuing Lender,
other than as a result of (a) the gross negligence or willful misconduct of such
Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Borrower and any
Issuing Lender, Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, such Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this subsection
3.5, Borrower shall retain any and all rights it may have against any Issuing
Lender for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Lender shall
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reasonably determine (which determination shall, absent clearly demonstrable
error, be final and conclusive and binding upon all parties hereto) that the
introduction or adoption (after the Closing Date) of any law, treaty or
governmental rule, regulation or order, or that any change (after the Closing
Date) therein or in the interpretation, administration or application thereof,
or that any determination (after the Closing Date) by a court or governmental
authority, or that compliance by any Issuing Lender or Lender with any
guideline, request or directive issued or made (after the Closing Date) by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law), in any such case:
(i) subjects such Issuing Lender or Lender (or its applicable lending
or letter of credit office) to any additional Tax (excluding (x) any Tax on
the overall net income of such Issuing Lender or Lender, (y) any Tax
imposed on any Issuing Lender or Lender as a result of a present or former
connection between the jurisdiction imposing such Taxes and such Issuing
Lender or Lender (except a present connection arising solely from such
Lender having executed, delivered or performed its obligations or received
a payment under, or enforced any Loan Documents and (z) any Tax with
respect to which the provisions of subsection 2.7B are applicable) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being imposed
on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or participations
therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section 3 or
any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Borrower shall pay to such Issuing Lender or Lender,
promptly after receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Borrower
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.
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SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO INITIAL LOANS.
The obligations of Lenders to make the initial Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date and the
issuance of any Letters of Credit to be issued on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2 (in the case of
any such Loans) or 4.3 (in the case of any such Letters of Credit), subject to
prior or concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Borrower shall,
and shall cause each other Loan Party to, deliver to Lenders (or to Agents for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following with respect to Borrower or such Loan
Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of the Certificate or Articles of Incorporation
of such Person, together with a good standing certificate from the
Secretary of State of, in the case of Borrower, each of the States of
Pennsylvania and Maryland and, in the case of Newsub, the State of
Delaware, each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the Closing
Date by such Person's corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents and Related Agreements to which it is a party, certified as
of the Closing Date by the corporate secretary or an assistant secretary of
such Person as being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of the officers of such
Person executing the Loan Documents to which it is a party; and
(v) Executed originals of the Loan Documents to which such Person is
a party.
B. NO MATERIAL ADVERSE EFFECT. No material adverse change has occurred
since December 31, 1997 with respect to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower and its
Subsidiaries, taken as a whole.
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C. PROCEEDS OF DEBT AND EQUITY CAPITALIZATION OF BEAR AND BORROWER.
(i) EQUITY CAPITALIZATION OF BEAR. On or before the Closing Date,
Affiliates of KKR shall have made an aggregate cash investment in Bear in
an amount equal to the Bear Equity Amount.
(ii) ISSUANCE OF SENIOR SUBORDINATED DEBT BY BORROWER. On or before
the Closing Date, Borrower shall receive not less than $165,000,000 in
gross proceeds from the issuance and sale of the Senior Subordinated Debt.
(iii) INVESTMENT BY EXISTING SHAREHOLDERS. On or before the
Closing Date, Existing Shareholders shall have retained Shares equal in
value to approximately $229,000,000.
(iv) INVESTMENT BY BEAR. On or before the Closing Date, Bear shall
have acquired approximately 80% of the Shares from the Existing
Shareholders for cash in an amount equal to $184,000,000.
D. RELATED AGREEMENTS.
(i) FORM OF SENIOR SUBORDINATED DEBT INDENTURE. The Senior
Subordinated Debt Documents shall be in the form of the drafts dated April
19, 1998, with such changes thereto, if any, that have been approved by
Syndication Agent or that would otherwise have been permitted to be made
pursuant to subsection 7.9 if the Senior Subordinated Debt were issued and
outstanding at the time of any such change.
(ii) RELATED AGREEMENTS IN FULL FORCE AND EFFECT. Agents shall have
received a fully executed or conformed copy of each Related Agreement
(including the Recapitalization Agreement and the Senior Subordinated Debt
Indenture and any documents executed in connection therewith), and each
Related Agreement shall be in full force and effect and no provision
thereof shall have been modified or waived in any respect materially
adverse to the interests of either Agent or the Lenders, in each case
without the consent of Syndication Agent.
E. MATTERS RELATING TO EXISTING INDEBTEDNESS OF BORROWER AND ITS
SUBSIDIARIES.
(i) TERMINATION OF EXISTING CREDIT AGREEMENT AND RELATED LIENS;
EXISTING LETTERS OF CREDIT. On the Closing Date, Borrower and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement, (b) terminated any commitments to lend
or make other extensions of credit thereunder, (c) delivered to Agents all
documents or instruments necessary to release all Liens securing
Indebtedness or other obligations of Borrower and its Subsidiaries
thereunder, and (d) made arrangements satisfactory to Syndication Agent
with respect to the
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cancellation of any letters of credit outstanding thereunder or the
issuance of Letters of Credit to support the obligations of Borrower and
its Subsidiaries with respect thereto.
(ii) EXISTING INDEBTEDNESS TO REMAIN OUTSTANDING. Agents shall have
received an Officer's Certificate of Borrower stating that, after giving
effect to the transactions described in this subsection 4.1E, Borrower and
its Subsidiaries do not have any Indebtedness or unfunded credit
facilities, other than Indebtedness and unfunded credit facilities under
the Loan Documents and the Senior Subordinated Debt Documents and
Indebtedness listed on SCHEDULE 7.1.
F. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Borrower shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Recapitalization, the other
transactions contemplated by the Loan Documents and the Related Agreements, and
the continued operation of the business conducted by Borrower and its
Subsidiaries in substantially the same manner as conducted prior to the
consummation of the Recapitalization, and each of the foregoing shall be in full
force and effect, in each case other than those the failure to obtain or
maintain which, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods
shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the Recapitalization or the financing thereof.
G. CONSUMMATION OF RECAPITALIZATION.
(i) The Recapitalization Agreement shall not have been amended and
the fulfillment of any conditions set forth therein shall not have been
waived, in each case unless such amendment or waiver is not adverse in any
material respect to the interests of Lenders;
(ii) the Recapitalization shall have become effective in accordance
with the terms of the Recapitalization Agreement; and
(iii) the maximum aggregate amount (excluding Letters of Credit)
of Revolving Loans drawn on the Closing Date shall not exceed $7,500,000.
H. SECURITY INTERESTS IN PLEDGED COLLATERAL. Agents shall each have
received evidence satisfactory to them that Borrower shall have taken or caused
to be taken all such actions, executed and delivered or caused to be executed
and delivered all such agreements, documents and instruments, and made or cause
to be made all such registrations, filings and recordings (other than the filing
or recording of items described in clause (c) below) that may be necessary or,
in the opinion of Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording)
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perfected First Priority security interest in the entire Pledged Collateral.
Such actions shall include the following:
(a) SCHEDULES TO PLEDGE AGREEMENT. Delivery to Administrative
Agent of accurate and complete schedules to the Pledge Agreements.
(b) STOCK CERTIFICATES. Delivery to Administrative Agent of
certificates to the extent applicable (which certificates shall be
accompanied by irrevocable undated stock powers or power of
assignment, duly endorsed in blank and otherwise satisfactory in form
and substance to Administrative Agent) representing all capital stock
(or equivalent equity interest) included in the Pledged Collateral;
and
(c) UCC FINANCING STATEMENTS. Delivery to Administrative Agent
of a UCC financing statement duly executed by Borrower with respect to
certain Collateral under the Pledge Agreement, for filing in the
jurisdiction where Borrower maintains its "chief executive office" (as
that term is defined in the UCC as in effect in the State of New
York).
I. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or before the
Closing Date, Lenders shall have received from Borrower (i) audited financial
statements of Borrower and its Subsidiaries for Fiscal Years 1995, 1996 and
1997, consisting of balance sheets and the related consolidated statements of
income, stockholders' equity and cash flows for such Fiscal Years, and (ii) a
pro forma consolidated balance sheet of Borrower and its Subsidiaries as of the
date of the most recently audited balance sheet of Borrower and its
Subsidiaries, prepared in accordance with GAAP and reflecting the consummation
of the Recapitalization, the related financings and the other transactions
contemplated by the Loan Documents and the Related Agreements, which pro forma
financial statements shall be in form and substance reasonably satisfactory to
Lenders.
J. SOLVENCY ASSURANCES. On the Closing Date, Agents and Lenders shall
have received a letter from Valuation Research Corporation, dated the Closing
Date and addressed to Agents and Lenders, in form and substance satisfactory to
Syndication Agent and with appropriate attachments, demonstrating that, after
giving effect to the consummation of the Recapitalization, the related
financings and the other transactions contemplated by the Loan Documents and the
Related Agreements, Borrower will be solvent.
K. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx L.L.P., special New
York counsel for Borrower, dated as of the Closing Date and setting forth
substantially the matters in the opinions designated in EXHIBIT X-A annexed
hereto, (ii) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York counsel for Loan
Parties, dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in EXHIBIT X-B annexed hereto, and (iii)
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll,
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special Maryland counsel for Borrower, dated as of the Closing Date and setting
forth substantially the matters in the opinions designated in EXHIBIT X-C
annexed hereto, and Borrower hereby requests such counsel for Loan Parties to
deliver such opinions.
L. OPINIONS OF COUNSEL DELIVERED UNDER RELATED AGREEMENTS. Agents and
their counsel shall have received copies of each of the opinions of counsel
delivered to the parties under the Related Agreements, together with a letter
from each such counsel (if available) authorizing Lenders to rely upon such
opinion to the same extent as though it were addressed to Lenders.
M. FEES. Borrower shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent, Syndication Agent,
Arranger and Lenders, the fees payable on the Closing Date referred to in
subsection 2.3.
N. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Borrower
shall have delivered to Agents an Officer's Certificate, dated as of the Closing
Date and substantially in the form of EXHIBIT VIII annexed hereto, to the effect
that the representations and warranties in Section 5 hereof are true, correct
and complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date).
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1B, an executed
Notice of Borrowing, in each case signed by a Responsible Officer of Borrower
who is included in the incumbency and specimen certificate delivered pursuant to
subsection 4.1A(iv) or by any other Responsible Officer of Borrower designated
in an updated incumbency and specimen certificate delivered to Administrative
Agent by Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on
and as of such earlier date; and
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(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Request for Issuance of
Letter of Credit or a request for such Letter of Credit in such other form, to
the extent permitted in such subsection and in such form as agreed to
thereunder, in each case signed by a Responsible Officer of Borrower who is
included in the incumbency and specimen certificate delivered pursuant to
subsection 4.1A(iv) or by any other Responsible Officer of Borrower designated
in an updated incumbency and specimen certificate delivered to Administrative
Agent by Borrower, together with all other information specified in subsection
3.1B(i).
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
other Lenders to purchase participations therein, Borrower represents and
warrants to each Lender, on the date of this Agreement, on the Closing Date,
each Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Borrower and each Material Subsidiary is a
corporation or other business entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
as specified in SCHEDULE 5.1 annexed hereto and has all requisite corporate or
other power and authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. Each Loan Party has
all requisite corporate or other power and authority to enter into the Loan
Documents and Related Agreements to which it is a party and to carry out the
transactions contemplated thereby.
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B. QUALIFICATION AND GOOD STANDING. Borrower and each Material
Subsidiary is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except to the extent that the failure to be so
qualified or in good standing could reasonably be expected to have a Material
Adverse Effect.
C. SUBSIDIARIES. All of the Subsidiaries and Unrestricted Subsidiaries
of Borrower as of the Closing Date are identified in SCHEDULE 5.1 annexed hereto
and each Material Subsidiary as of the Closing Date has been so designated on
said SCHEDULE 5.1.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance
of the Loan Documents and the Related Agreements have been duly authorized by
all necessary corporate or other action on the part of each Loan Party that is a
party thereto.
B. NO CONFLICT. The execution, delivery and performance by Loan Parties
of the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents and the Related Agreements do
not and will not (i) violate any provision of any material law or any material
governmental rule or regulation applicable to Borrower or any of its Material
Subsidiaries or any other Loan Party, the Certificate or Articles of
Incorporation or Bylaws (or equivalent constitutional documents) of Borrower or
any of its Subsidiaries, or any material order, judgment or decree of any court
or other agency of government binding on Borrower or any of its Material
Subsidiaries or any other Loan Party, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Borrower or any of its Material Subsidiaries or any
other Loan Party, or (iii) result in or require the creation or imposition of
any Lien under any such Contractual Obligation upon any of the properties or
assets of Borrower or any of its Subsidiaries or any other Loan Party (other
than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders).
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and the
Related Agreements do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body except (i) any thereof that have
been obtained and are in full force and effect and (ii) as of the Closing Date
with respect to the consummation of the Recapitalization, any thereof which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
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relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 FINANCIAL CONDITION.
Borrower has heretofore delivered to Lenders, at Lenders' request, the
audited consolidated balance sheets of Borrower and its Subsidiaries as at
December 31, 1995, December 31, 1996 and December 31, 1997 and the related
consolidated statements of income, stockholders' equity and cash flows of
Borrower and its Subsidiaries for the Fiscal Years then ended. All such
statements were prepared in conformity with GAAP except as otherwise noted
therein and fairly present, in all material respects, the financial position (on
a consolidated basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and cash flows (on
a consolidated basis) of the entities described therein for each of the periods
then ended.
5.4 NO MATERIAL ADVERSE EFFECT.
Since December 31, 1997, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.
5.5 TITLE TO PROPERTIES; LIENS.
Borrower and each of its Subsidiaries have good title to, or leasehold
interests in, all properties that are necessary for the conduct of their
respective businesses as now conducted and as proposed to be conducted, free and
clear of all Liens (other than any Liens permitted by this Agreement), except
where the failure to have such good title or leasehold interests could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Borrower or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Borrower, threatened against or affecting Borrower or any of
its Subsidiaries that, individually or in the aggregate (taking into
consideration, among other things, the ability of Borrower and its Subsidiaries
to obtain indemnification in respect thereof from Persons that are willing and
able to honor any existing indemnification obligations with respect thereto),
(i) could reasonably be expected to result in a Material Adverse Effect, or (ii)
on or prior to the Closing Date, is reasonably likely to impair or impose
material adverse conditions on the consummation of the transactions contemplated
hereunder or in connection herewith (including the Recapitalization) and is
reasonably likely to have a material adverse effect on the rights and
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remedies of, or impose any material liability on, either Agent or the Lenders
under this Agreement and the Loan Documents, taken as a whole.
5.7 PAYMENT OF TAXES.
Each of Borrower, each of its Subsidiaries and each other corporation
(each a "CONSOLIDATED CORPORATION") with whom Borrower or any of its
Subsidiaries joins in the filing of a consolidated or combined return has filed
all Federal income tax returns and other material tax returns and reports,
domestic and foreign, required to be filed by it, and has paid all material
taxes, assessments, fees and other governmental charges levied or imposed upon
it or its respective properties, income or assets to the extent the same have
become due and payable, except those which are not yet delinquent or which are
being contested in good faith. Each of Borrower, each of its Subsidiaries and
each Consolidated Corporation has paid, or has provided adequate reserves (in
the good faith judgment of the management of Borrower) in accordance with GAAP
(or, in the case of a Foreign Subsidiary, appropriate reserves under generally
accepted accounting principles in the applicable jurisdiction), for the payment
of, all such material taxes, assessments, fees and charges relating to all prior
taxable years and the current taxable year of Borrower, each of its Subsidiaries
and each Consolidated Corporation. To the best knowledge of Borrower, there is
no proposed tax assessment against Borrower, any of its Subsidiaries or any
Consolidated Corporation that could reasonably be expected to have a Material
Adverse Effect.
5.8 GOVERNMENTAL REGULATION.
Neither the making of any extension of credit hereunder, nor the use
of any of the proceeds thereof, will violate the provisions of Regulation T, U
or X of the Board of Governors of the Federal Reserve System. Borrower is not
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
5.9 EMPLOYEE BENEFIT PLANS.
A. Borrower, each of its Subsidiaries and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA, the Internal Revenue Code
and other applicable federal, state or foreign law with respect to each Plan,
and has performed all of its obligations under each Plan, except to the extent
that failure to comply, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. Borrower, each of its
Subsidiaries and each ERISA Affiliate has made all required contributions to any
Plan subject to Section 412 of the Internal Revenue Code, except to the extent
that a failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Plan.
B. There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any
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Pension Plan which, individually or in the aggregate, have resulted or could
reasonably be expected to result in a Material Adverse Effect.
C. (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability in an amount
which, individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), could reasonably be expected to have a Material
Adverse Effect if such Pension Plan or Pension Plans were then terminated,
unless such Pension Plan is not reasonably likely to be terminated; and (iii)
neither Borrower nor any of its Subsidiaries nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.10 ENVIRONMENTAL PROTECTION.
Borrower and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Without limiting the effect of the preceding sentence:
(a) neither Borrower nor any of its Subsidiaries has received a
complaint, order, citation, notice or other written communication with
respect to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(b) to the best of Borrower's knowledge, after due inquiry,
there are no environmental, health or safety conditions existing or
reasonably expected to exist at any real property owned, operated, leased
or used by Borrower or any of its existing or former Subsidiaries or any of
their respective predecessors, including off-site treatment or disposal
facilities used by Borrower or its existing or former Subsidiaries for
wastes treatment or disposal, which could reasonably be expected to require
any construction or other capital costs or clean-up obligations to be
incurred prior to the final scheduled maturity of the Tranche B Term Loans
in order to assure compliance with any Environmental Law, including
provisions regarding clean-up, to the extent that any of such conditions,
construction or other capital costs or clean-up obligations, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
5.11 DISCLOSURE.
All factual information (taken as a whole) furnished by or on behalf
of Borrower or any of its Subsidiaries to any Agent or any Lender in writing on
or before the Closing Date (including any such information contained in the
Confidential Information Memorandum or in any Loan Document or Related Agreement
or in any other document, certificate or written
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statement furnished to Lenders by or on behalf of Borrower or any of its
Subsidiaries) for use in connection with the transactions contemplated by this
Agreement is true and correct in all material respects and does not omit to
state a material fact necessary in order to make the statements contained herein
and therein, taken as a whole, not misleading at such time in light of the
circumstances in which the same were made, it being understood that, for
purposes of this subsection 5.11, such factual information does not include
projections and pro forma financial information. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Borrower to be reasonable at the time
made, it being recognized by Lenders that such projections as to future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results.
SECTION 6. AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6 and shall further cause each of its Unrestricted
Subsidiaries that is a Consolidated Corporation to perform the covenants in
subsection 6.3.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Borrower will deliver to Agents and Lenders:
(i) QUARTERLY FINANCIALS: promptly when available but in any event
no later than 60 days after the end of the first three Fiscal Quarters of
each Fiscal Year, the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of each Fiscal Quarter and the related
consolidated statements of income, stockholders' equity and cash flows of
Borrower and its Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal
Year, all in reasonable detail and certified by a Responsible Officer of
Borrower that they fairly present, in all material respects, the financial
condition of Borrower, its Subsidiaries and its Unrestricted Subsidiaries
or Borrower and its Subsidiaries, as the case may be, as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal
year-end adjustments;
(ii) YEAR-END FINANCIALS: promptly when available but in any event no
later than 120 days after the end of each Fiscal Year, the consolidated
balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income, stockholders'
equity and cash flows of Borrower and
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its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year,
all in reasonable detail and certified by a Responsible Officer of Borrower
that they fairly present, in all material respects, the financial condition
of Borrower and its Subsidiaries as at the end of such Fiscal Year and the
results of their operations and their cash flows for such Fiscal Year, and
a report thereon of a firm of independent certified public accountants of
recognized national standing selected by Borrower, which report shall be
unqualified as to the scope of audit or as to the going concern status of
Borrower, its Subsidiaries and its Unrestricted Subsidiaries or Borrower
and its Subsidiaries, as the case may be (in either case taken as a whole),
and shall state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial condition of Borrower,
its Subsidiaries and its Unrestricted Subsidiaries or Borrower and its
Subsidiaries, as the case may be, as at the end of such Fiscal Year and the
results of their operations and their cash flows for such Fiscal Year in
conformity with GAAP applied on a basis consistent with prior years (except
as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iii) OFFICER'S AND COMPLIANCE CERTIFICATES: together with each
delivery of financial statements of Borrower and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officer's Certificate of
Borrower stating that the signers do not have knowledge of the existence,
as at the date of such Officer's Certificate, of any condition or event
that constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event exists, specifying the nature and period of
existence thereof and what action Borrower has taken, is taking and
proposes to take with respect thereto; (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the covenants set forth in subsection
7.6 and with any specific dollar amounts specified in respect of any
restrictions contained in any other provisions of Section 7; (c) in the
event the identity of any of the Subsidiaries or Unrestricted Subsidiaries
of Borrower has changed since the Closing Date (or, if applicable, since
the date of the most recent Officer's Certificate delivered to Lenders in
accordance with this clause (c)), an Officer's Certificate setting forth
such change; (d) the amount of any Pro Forma Adjustment not previously set
forth in any Pro Forma Adjustment Certificate or any change in the amount
of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate
previously provided and, in either case, in reasonable detail, the
calculations and basis therefor, and (e) at the time of the delivery of the
financial statements pursuant to subdivision (ii) above, the Available
Amount as at the end of the Fiscal Year to which such statements relate;
(iv) ACCOUNTANTS' CERTIFICATION: together with each delivery of
consolidated financial statements of Borrower and its Subsidiaries pursuant
to subdivision (ii) above, a written statement by the independent certified
public accountants giving the report thereon stating whether, in connection
with their audit examination, any condition or event that constitutes an
Event of Default or Potential Event of Default under
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subsection 7.6 has come to their attention and, if such a condition or
event has come to their attention, specifying the nature thereof;
(v) SEC FILINGS: promptly after the transmission thereof by Borrower
or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K,
10-Q, or 8-K and any effective registration statements (and, upon the
effectiveness thereof, any material amendments thereto) filed with the SEC
(but not any exhibits to any such registration statement or amendment
(except as provided below) or any registration statement on Form S-8), and
copies of all financial statements, proxy statements, notices and reports
that Borrower or any of its Subsidiaries actually sends to the holders of
any publicly-issued debt Securities of Borrower or any of its Subsidiaries
(including the Subordinated Indebtedness) in their capacity as such holders
(in each case to the extent not theretofore delivered to Lenders pursuant
to this Agreement and in each case including, to the extent requested by
either Agent, any schedules and exhibits thereto), in each case as so
transmitted to the SEC;
(vi) EVENTS OF DEFAULT, ETC.: promptly upon any Responsible Officer
of Borrower obtaining actual knowledge of (a) any condition or event that
constitutes an Event of Default or Potential Event of Default or (b) any
acceleration, redemption or purchase demands or notices provided by the
trustee for, or any event of default under, any Subordinated Indebtedness,
a notice specifying the nature and period of existence of such condition or
event or specifying the notice given by such trustee or the nature of such
event of default, and what action Borrower has taken, is taking and
proposes to take with respect thereto;
(vii) LITIGATION OR OTHER PROCEEDINGS: promptly upon any
Responsible Officer of Borrower obtaining actual knowledge of (X) the
institution of any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration against
or affecting Borrower or any of its Subsidiaries or any property of
Borrower or any of its Subsidiaries (collectively, "PROCEEDINGS") not
previously disclosed in writing by Borrower to Lenders or (Y) any material
development in any Proceeding that, in any such case, could reasonably be
expected to give rise to a Material Adverse Effect, written notice thereof
together with such other information as may be reasonably available to
Borrower to enable Lenders and their counsel to evaluate such matters;
(viii) ERISA EVENTS: promptly upon any Responsible Officer of
Borrower obtaining knowledge of the occurrence or forthcoming occurrence of
any ERISA Event, a written notice specifying the nature thereof and what
action Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto;
and, promptly upon receipt thereof, copies of any notice received by
Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates from the Internal Revenue Service, the Department of Labor or
the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event;
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(ix) FINANCIAL PLANS: as soon as practicable and in any event no
later than 60 days after the beginning of each Fiscal Year, consolidated
operating and related budgets for Borrower and its Subsidiaries for each
Fiscal Quarter of such Fiscal Year (the "FINANCIAL PLAN" for such Fiscal
Year), in reasonable detail as customarily prepared by management of
Borrower for its internal use and setting forth an explanation of the
principal assumptions on which such budgets are based;
(x) ENVIRONMENTAL AUDITS AND REPORTS: as soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Borrower or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Real Estate (as
defined in subsection 6.1(xi)(1)) which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or with
respect to any Environmental Claims which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(xi) NOTICE OF CERTAIN ENVIRONMENTAL MATTERS: promptly upon any
Responsible Officer of Borrower obtaining knowledge of any one or more of
the following environmental matters the existence of which, either
individually or when aggregated with all other such matters, would
reasonably be expected to result in a Material Adverse Effect, a written
notice specifying in reasonable detail the nature thereof and what action
Borrower and its Subsidiaries have taken, are taking or propose to take
with respect thereto:
(1) any pending or threatened Environmental Claim against
Borrower or any of its Subsidiaries or any land, buildings and improvements
owned or leased by Borrower or any of its Subsidiaries (but excluding all
operating fixtures and equipment, whether or not incorporated into
improvements) (collectively, "REAL ESTATE");
(2) any condition or occurrence that (x) results in
noncompliance by Borrower or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis
of an Environmental Claim against Borrower or any of its Subsidiaries or
any Real Estate;
(3) any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Real Estate under any Environmental Law; or
(4) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Estate;
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(xii) PRO FORMA ADJUSTMENT CERTIFICATE: not later than the
consummation of any Acquisition by Borrower or any of its Subsidiaries for
which there shall be a Pro Forma Adjustment, an Officer's Certificate of
Borrower setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor; and
(xiii) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to Borrower or any of its Subsidiaries as
from time to time may be reasonably requested by any Agent on its own
behalf or on behalf of Requisite Lenders.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Borrower will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect (i) its corporate existence (except, in the case of a Subsidiary of
Borrower) only, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect) and (ii) all rights and franchises
material to its business (except, in any case, to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect).
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
Borrower will, and will cause each of its Subsidiaries and each
Consolidated Corporation that is an Unrestricted Subsidiary to, pay all material
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any material penalty accrues thereon, and all lawful material
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have become or could reasonably
be expected to become a material Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries or any Consolidated Corporation; PROVIDED
that no such charge or claim need be paid if it is being contested in good faith
and by proper proceedings, so long as it has maintained adequate reserves (in
the good faith judgment of Borrower or such Subsidiary or such Consolidated
Corporation) with respect thereto in accordance with GAAP.
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
A. MAINTENANCE OF PROPERTIES. Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Borrower and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof, in each case except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
B. INSURANCE. Borrower will, and will cause each of its Material
Subsidiaries to, at all times maintain in full force and effect, with insurance
companies which Borrower
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believes (in the good faith judgment of Borrower's management) are financially
sound and responsible at the time the relevant coverage is placed or renewed,
insurance in at least such amounts and against at least such risks (and with
such risk retentions) as are usually insured against in the same general area by
companies engaged in the same or a similar business. Borrower shall furnish to
Lenders, upon written request from either Agent, information presented in
reasonable detail as to the insurance so carried.
6.5 INSPECTION RIGHTS.
Borrower shall, and shall cause each of its Material Subsidiaries to,
permit any authorized representatives designated by any Agent or Requisite
Lenders to visit and inspect any of the properties of Borrower or of any of its
Material Subsidiaries, to inspect, copy and make abstracts from its and their
financial and accounting records, and to discuss its and their affairs, finances
and accounts with its and their officers and independent public accountants
(provided that Borrower may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested.
6.6 COMPLIANCE WITH LAWS, ETC.
Borrower shall comply, and shall cause each of its Subsidiaries to
comply, in all material respects, with the requirements of all applicable laws,
rules, regulations and orders (including all Environmental Laws) of any
governmental authority having jurisdiction over it, except such as may be
contested in good faith or as to which a bona fide dispute may exist and except
to the extent that noncompliance therewith could not reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
6.7 EXECUTION OF SUBSIDIARY GUARANTY BY FUTURE DOMESTIC SUBSIDIARIES; PLEDGE OF
STOCK OF FUTURE DIRECT SUBSIDIARIES; RATABLE CREDIT SUPPORT.
A. In the event that any Person (other than a Restricted Acquisition
Subsidiary or a Subsidiary that has incurred Indebtedness permitted under
subsection 7.1(x)(b)) becomes a Domestic Subsidiary after the date hereof,
Borrower will promptly notify each Agent of that fact and cause such Domestic
Subsidiary to execute and deliver to Administrative Agent a counterpart of the
Subsidiary Guaranty. In the event that any Person (other than a Restricted
Acquisition Subsidiary or, subject to subsection 6.7B, a Subsidiary the capital
stock (or other equivalent equity interest) of which is certificated and is
pledged pursuant to subsection 7.2(vi)(b)) becomes a direct Domestic Subsidiary
or a direct Material Foreign Subsidiary after the Closing Date, Borrower will
promptly notify each Agent of that fact and cause the capital stock (or other
equivalent equity interest) owned by Borrower of such direct Domestic Subsidiary
or such direct Material Foreign Subsidiary (or, if Borrower owns 65% or more of
any such direct Material Foreign Subsidiary, 65% of the capital stock (or other
equivalent equity interest) of such direct Material Foreign Subsidiary) to be
pledged under the Pledge Agreement (or, if the capital stock (or other
equivalent equity interest) of any such direct
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Domestic Subsidiary is uncertificated, confirmation and evidence satisfactory to
the Administrative Agent in accordance with Articles 8 and 9 of the Uniform
Commercial Code as in effect in the State of New York or any similar law which
may be applicable) and, in the case of any such direct Material Foreign
Subsidiary, also under any pledge agreements or instruments that the
Administrative Agent deems necessary or advisable, or that the Administrative
Agent may reasonably request, pursuant to the terms of the Master Pledge
Agreement to effectuate such pledge in the jurisdiction in which such Material
Foreign Subsidiary is organized.
B. In the event that any Subsidiary of Borrower has guaranteed any
Indebtedness incurred pursuant to subsection 7.1(x) in an aggregate principal
amount exceeding $75,000,000, or has granted any security interests as
collateral therefor, such Subsidiary shall (i) guaranty the Obligations
hereunder and under the other Loan Documents on a PARI PASSU basis with its
guaranty of any portion of such Indebtedness exceeding $75,000,000 and shall
grant Liens on such assets securing the Obligations on an equal and ratable
basis with the security for such Indebtedness pursuant to documentation
reasonably satisfactory to Agents and Requisite Lenders and (ii) execute and
deliver to Administrative Agent all such documents and instruments as may be
necessary or, in the opinion of Administrative Agent, desirable, in order to
more fully evidence, perfect or protect such security interest.
6.8 TRANSACTIONS WITH AFFILIATES.
Borrower shall, and shall cause each of its Subsidiaries to, conduct
all transactions with any of its Affiliates (other than Borrower or any of its
Subsidiaries) upon terms that are substantially as favorable to Borrower or such
Subsidiary as it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate of Borrower or such Subsidiary; PROVIDED that the
foregoing restrictions shall not apply to (a) the payment of customary annual
fees to KKR and its Affiliates for management, consulting and financial services
rendered to Borrower and its Subsidiaries, and customary investment banking fees
paid to KKR and its Affiliates for services rendered to Borrower and its
Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) reasonable and customary fees paid to members of the Board of
Directors of Borrower and its Subsidiaries and (c) transactions otherwise
expressly permitted hereunder between Borrower or any of its Subsidiaries and
any such Affiliate.
6.9 CONDUCT OF BUSINESS.
From and after the Closing Date, Borrower shall, and shall cause its
Subsidiaries (taken as a whole) to, engage primarily in (i) the lines of
business carried on by Borrower and its Subsidiaries on the Closing Date, (ii)
other businesses or activities that are reasonably similar thereto or that
constitute a reasonable extension, development or expansion thereof or that are
ancillary or reasonably related thereto.
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6.10 FISCAL YEAR.
Borrower shall maintain its Fiscal Year-end at December 31 of each
year; PROVIDED that Borrower may, upon prior written notice to Agents, change
such Fiscal Year-end to any other date reasonably acceptable to Agents, in which
case Borrower and Agents shall, and are hereby authorized by Lenders to, make
any adjustments to this Agreement that are necessary in order to reflect any
corresponding changes in financial reporting.
6.11 CONVEYANCE OF ASSETS.
Borrower shall convey a substantial majority of its assets (other than
any Pledged Shares (or other equivalent equity interest) to Newsub on or prior
to the date which is 120 days subsequent to the Closing Date.
SECTION 7. NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Borrower may become and remain liable with respect to the
Obligations;
(ii) Borrower and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations permitted under subsection 7.4 and, upon
any matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Guarantee Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain liable
with respect to Indebtedness in respect of Capital Leases in an aggregate
amount not to exceed at any time $25,000,000;
(iv) Borrower may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of Borrower may
become and remain liable with respect to Indebtedness to Borrower or any
other Subsidiary of Borrower;
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(v) Borrower and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in SCHEDULE 7.1 annexed hereto;
(vi) (a) Borrower may become and remain liable with respect to
Indebtedness evidenced by the Senior Subordinated Debt in an aggregate
principal amount not to exceed $165,000,000 and any Refinancing Sub Debt
and (b) its Subsidiaries may become liable under the Senior Subordinated
Debt Guaranty, if any, in respect of such Indebtedness;
(vii) Borrower and its Subsidiaries may become and remain liable
with respect to Indebtedness (a) incurred within 270 days of the
acquisition, construction or improvement of fixed or capital assets to
finance the acquisition, construction or improvement of such fixed or
capital assets or (b) otherwise incurred in respect of Capital Expenditures
permitted under subsection 7.8;
(viii) Borrower and its Subsidiaries may become and remain liable with
respect to Indebtedness under Hedge Agreements;
(ix) Any Person that becomes a Restricted Acquisition Subsidiary (a)
may remain liable with respect to (X) Indebtedness of such Person existing
at the time of consummation of the Acquisition pursuant to which such
Person becomes a Subsidiary of Borrower or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; PROVIDED that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance the Acquisition pursuant to which such Person becomes a
Subsidiary of Borrower;
(x) Borrower and its Subsidiaries (a) may remain liable with respect
to (X) in the case of a Subsidiary, Indebtedness of such Subsidiary
existing at the time of consummation of an Acquisition pursuant to which
such Person becomes a Subsidiary of Borrower or (Y) Indebtedness secured by
assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; PROVIDED that such Indebtedness was not
incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may
be, and (b) may become and remain liable with respect to Indebtedness
incurred to finance an Acquisition consummated by such Person, including an
Acquisition pursuant to which such Person becomes a Subsidiary of Borrower;
PROVIDED that the aggregate outstanding principal amount of all
Indebtedness permitted pursuant to this subsection 7.1(x) shall at no time
exceed $75,000,000;
(xi) Borrower and its Subsidiaries may extend the maturity of, and may
become and remain liable with respect to Indebtedness incurred to
refinance, any Indebtedness permitted under clauses (ii) through (iv), and
(vii) through (x) above; PROVIDED that (a) the
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principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such extension or
refinancing, (b) the direct and contingent obligors with respect to such
Indebtedness are not changed as a result of such extension or refinancing,
except as otherwise permitted hereunder, and (c) a Potential Event of
Default would not occur solely as a result of such extension or
refinancing; and
(xii) Borrower and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not to
exceed $100,000,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of Borrower or any of its
Subsidiaries, whether now owned or hereafter acquired, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Closing Date securing Indebtedness
described on SCHEDULE 7.2 annexed hereto in an aggregate principal amount
not to exceed $5,000,000;
(iv) Liens placed on property, plant or equipment used in the ordinary
course of business of Borrower or any of its Subsidiaries to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof; PROVIDED that (a) the Lien encumbering such property, plant or
equipment does not encumber any other asset of Borrower or any of its
Subsidiaries and (b) the Indebtedness secured thereby is permitted under
subsection 7.1(vii);
(v) (a) Liens encumbering assets of a Restricted Acquisition
Subsidiary that are granted to secure Indebtedness permitted under
subsection 7.1(ix) at the time such Indebtedness is assumed by such
Restricted Acquisition Subsidiary; PROVIDED that such Liens are not granted
in contemplation of the Acquisition pursuant to which such Person becomes a
Subsidiary of Borrower, and (b) Liens encumbering the capital stock of a
Restricted Acquisition Subsidiary that are granted to secure Indebtedness
permitted under subsection 7.1(ix)(b);
(vi) (a) Liens encumbering assets of a Subsidiary of Borrower that are
granted to secure Indebtedness permitted under subsection 7.1(x) at the
time such Indebtedness is originally incurred and (b) Liens encumbering the
capital stock of a Subsidiary of Borrower that are granted to secure
Indebtedness permitted under subsection 7.1(x)(b);
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PROVIDED that the aggregate outstanding principal amount of Indebtedness
secured by all Liens permitted pursuant to this subsection 7.2(vi) shall at
no time exceed $75,000,000, except to the extent that such Subsidiary has
granted a Lien on the assets securing any portion of such Indebtedness in
excess of $75,000,000 on an equal and ratable basis to Administrative Agent
on behalf of Lenders to secure the Obligations; and
(vii) Other Liens securing Indebtedness in an aggregate amount not
to exceed $25,000,000 at any time outstanding.
7.3 INVESTMENTS; JOINT VENTURES.
Except as provided in subsections 7.7(i), (ii) or (v), Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
make or own any Investment in any Person, including any Joint Venture, except:
(i) Borrower and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Borrower and its Subsidiaries may make loans and advances to
officers, directors and employees of Borrower or any of its Subsidiaries
(a) to finance the purchase of capital stock of Borrower and (b) in an
aggregate principal amount not to exceed $5,000,000 at any time outstanding
for additional purposes not contemplated by the foregoing clause (a);
(iii) Borrower and its Subsidiaries may make and own Investments
consisting of any non-cash proceeds received by Borrower or any of its
Subsidiaries in connection with any Asset Sale permitted under subsection
7.7(v);
(iv) Borrower and its Subsidiaries may continue to own the Investments
owned by them and described in SCHEDULE 7.3 annexed hereto and Borrower and
its Subsidiaries may make and own Investments purchased with the proceeds
of the sale of any Investments permitted under this subsection 7.3(iv); and
(v) Borrower and its Subsidiaries may make and own Investments
(collectively, "UNRESTRICTED INVESTMENTS") in addition to those permitted
under clauses (i) through (iv) above, including Investments in Restricted
Acquisition Subsidiaries and in Unrestricted Subsidiaries, as follows: (a)
Unrestricted Investments in an aggregate amount not to exceed at any time
(1) $25,000,000 for all such Unrestricted Investments in Unrestricted
Subsidiaries or (2) $50,000,000 for all such Unrestricted Investments
(including all such Unrestricted Investments in Restricted Acquisition
Subsidiaries ) and (b) Unrestricted Investments in addition to the
Unrestricted Investments permitted under the preceding clause (a), PROVIDED
that after giving effect to any such additional Unrestricted Investment
pursuant to this clause (b) the Available Amount Usage shall not exceed the
Available Amount.
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7.4 GUARANTEE OBLIGATIONS.
Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Guarantee Obligation, except:
(i) Borrower and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of the Guaranties;
(ii) Borrower may become liable with respect to Guarantee Obligations
in respect of Letters of Credit;
(iii) Borrower and its Subsidiaries may become and remain liable
with respect to Guarantee Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Borrower and its Subsidiaries (i) may become liable in respect of
Letters of Credit and (ii) may become and remain liable with respect to
Guarantee Obligations in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with Asset Sales or
other sales of assets;
(v) Borrower and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations under guarantees in the ordinary course of
business of the obligations of suppliers, customers, franchisees and
licensees of Borrower and its Subsidiaries;
(vi) Borrower and its Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of any Indebtedness of Borrower
or any of its Subsidiaries (other than Restricted Acquisition Subsidiaries)
permitted by subsection 7.1; PROVIDED that (a) neither Borrower nor any of
its Subsidiaries may become or remain liable with respect to Guarantee
Obligations in respect of any Indebtedness permitted under subsection
7.1(x)(b) unless such Person becomes a Subsidiary of Borrower pursuant to
the Acquisition financed with the proceeds of such Indebtedness or acquires
a direct Subsidiary pursuant to such Acquisition;
(vii) Borrower and its Subsidiaries, as applicable, may remain
liable with respect to Guarantee Obligations described in SCHEDULE 7.4
annexed hereto; and
(viii) Borrower and its Subsidiaries may become and remain liable
with respect to other Guarantee Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Borrower and its
Subsidiaries in respect of all such Guarantee Obligations shall at no time
exceed $15,000,000.
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7.5 RESTRICTED JUNIOR PAYMENTS.
Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; PROVIDED that so long as no Event of Default or
Potential Event of Default has occurred and is continuing or would be caused
thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent
(together with options or warrants in respect of any thereof) held by
present and former officers, directors and employees of Borrower so long as
such repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements or
shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior
Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving
effect thereto the Available Amount Usage shall not exceed the Available
Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock
of Borrower or warrants or options to acquire any such shares with proceeds
received by Borrower from substantially concurrent equity contributions or
issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of
Borrower for shares of another class of capital stock of Borrower or rights
to acquire shares of such other class of capital stock; PROVIDED that such
other class of capital stock contains terms and provisions (taken as a
whole, and taking into account the relative amounts of the shares of each
class of capital stock involved in such redemption or exchange) that are at
least as advantageous to Lenders as those contained in the capital stock
redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date
(the "DECLARATION DATE") of declaration of any dividend in respect of
Borrower's outstanding capital stock pursuant to the terms of this clause
(v) or the making of any other Restricted Junior Payment pursuant to the
terms of this clause (v), (X) the Consolidated Leverage Ratio as of the
last day of the Fiscal Quarter most recently ended shall be less than
4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior
Payment, when added to the aggregate amount of all Restricted Junior
Payments previously declared or (without duplication) paid by Borrower
pursuant to this clause (v) during the period commencing on the Closing
Date and ending on the Declaration Date, does not exceed 50% of cumulative
Consolidated Net Income of Borrower and its Subsidiaries for the period
commencing on the Closing Date and ending on the last day of the Fiscal
Quarter most recently ended.
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7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Borrower shall not permit the ratio
of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense for
the four-Fiscal Quarter period ending on the last day of any Fiscal Quarter set
forth below to be less than the correlative ratio indicated:
MINIMUM INTEREST
YEAR FISCAL QUARTER COVERAGE RATIO
---- --------------- ----------------
1999 First 1.50:1.00
Second 1.50:1.00
Third 1.50:1.00
Fourth 1.50:1.00
2000 First 1.50:1.00
Second 1.50:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2001 First 1.75:1.00
Second 1.75:1.00
Third 1.75:1.00
Fourth 1.75:1.00
2002 First 1.75:1.00
Second 1.75:1.00
Thereafter 2.00:1.00
B. MAXIMUM LEVERAGE RATIO. Borrower shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter set forth below to
exceed the correlative ratio indicated:
MINIMUM INTEREST
YEAR FISCAL QUARTER COVERAGE RATIO
---- --------------- ----------------
1999 First 6.65:1.00
Second 6.50:1.00
Third 6.40:1.00
Fourth 6.25:1.00
2000 First 6.00:1.00
Second 6.00:1.00
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Third 6.00:1.00
Fourth 5.75:1.00
2001 First 5.50:1.00
Second 5.50:1.00
Third 5.50:1.00
Fourth 4.75:1.00
2002 First 4.75:1.00
Second 4.75:1.00
Third 4.75:1.00
Fourth 4.25:1.00
2003 First 4.25:1.00
Second 4.25:1.00
Thereafter 4.00:1.00
7.7 RESTRICTION ON CERTAIN FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
Borrower shall not, and shall not permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or make any
Acquisition, except:
(i) any Subsidiary of Borrower may be merged with or into
Borrower or any other Subsidiary of Borrower, and any Subsidiary of
Borrower may be liquidated, wound up or dissolved, or all or any part of
its business, property or assets (including capital stock of any Subsidiary
of Borrower) may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to Borrower or
any other Subsidiary of Borrower; PROVIDED that in the case of any such
merger involving Borrower, Borrower shall be the continuing or surviving
corporation;
(ii) Borrower and its Subsidiaries may make Acquisitions (by
merger or otherwise) so long as, prior to the consummation of any such
Acquisition, Borrower shall have delivered to Agents (a) financial
statements for Borrower and its Subsidiaries for the four Fiscal-Quarter
period most recently ended (the "PRO FORMA TEST PERIOD"), prepared on a pro
forma basis as if such Acquisition had been consummated on the first day of
the Pro Forma Test Period and giving effect to Borrower's good faith
estimate of any anticipated cost savings or increases as a result of the
consummation thereof, and (b) a pro forma Compliance Certificate
demonstrating that, on the basis of such pro forma financial statements,
Borrower would have been in compliance with all financial covenants set
forth in subsection 7.6 on the last day of the Pro Forma Test Period;
PROVIDED that, for
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Acquisitions consummated prior to the last day of the fourth Fiscal Quarter
of 1999, the requirements of subsection 7.6 in effect for the four
Fiscal-Quarter period ending on such date shall be deemed to be in effect
for the Pro Forma Test Period;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business and sell or
discount without recourse accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;
(iv) Borrower and its Subsidiaries may sell or otherwise dispose
of other assets in transactions that do not constitute Asset Sales;
(v) Borrower and its Subsidiaries may make Asset Sales of assets
having a fair value not in excess of $150,000,000 during the term of this
Agreement; PROVIDED that (w) the consideration received in each such Asset
Sale shall be in an amount at least equal to the fair value of the assets
being sold; (x) any non-cash consideration received by Borrower in respect
of any such Asset Sale in the form of Indebtedness of any Person in an
amount in excess of $5,000,000 shall be evidenced by a promissory note
which shall be pledged by Borrower to Administrative Agent pursuant to the
Master Pledge Agreement as security for the Obligations; and (y) the
proceeds of such Asset Sales shall be applied as required by subsection
2.4B(iii)(a); and
(vi) Investments permitted under subsection 7.3.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Borrower shall not, and shall not permit its Subsidiaries to, make
or incur Consolidated Capital Expenditures in any Fiscal Year (the "CURRENT
FISCAL YEAR") in an aggregate amount in excess of an amount (the "MAXIMUM
CAPITAL EXPENDITURES AMOUNT" for the Current Fiscal Year) equal to (x) 10% of
Consolidated Gross Sales Revenues for the immediately preceding Fiscal Year PLUS
(y) the Consolidated Gross Sales Revenues Adjustment for the Current Fiscal
Year; PROVIDED that the Maximum Capital Expenditures Amount for any Fiscal Year
shall be increased by an amount equal to the excess, if any, of the Maximum
Capital Expenditures Amount for the previous Fiscal Year (prior to adjustment in
accordance with this proviso) over the actual amount of Consolidated Capital
Expenditures for such previous Fiscal Year.
7.9 AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS.
Borrower shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change any of the terms of any Subordinated Indebtedness
in a manner that would be adverse to Lenders in any material respect.
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SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrower to pay:
(i) any installment of principal of any Loan when due from
Borrower, whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise;
(ii) failure by Borrower to pay when due any amount payable to an
Issuing Lender in reimbursement of any drawing under a Letter of Credit; or
(iii) failure by Borrower to pay any interest on any Loan or any
fee or any other amount due from Borrower under this Agreement, in each
case within five days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Borrower or any of its Subsidiaries to pay when due
any principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Guarantee Obligations with an aggregate principal amount of $20,000,000
or more beyond the end of any grace or notice period provided therefor; or (ii)
breach or default by Borrower or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Guarantee
Obligations in the aggregate principal amount referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Guarantee Obligation(s), if such breach or default
continues after any applicable grace or notice period provided therefor and the
effect of such breach or default is to cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s) to
become or be declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Borrower to perform or comply with any term or condition
contained in subsection 6.1(vi)(a), Section 6.11 or Section 7; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made
by Borrower or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by Borrower or any of its Subsidiaries in
writing pursuant hereto or thereto or in
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connection herewith or therewith shall be false in any material respect on the
date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after
receipt by Borrower and such Loan Party of notice from either Agent or any
Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Borrower or any of its Material
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal, state or foreign law; or (ii) an
involuntary case shall be commenced against Borrower or any of its Material
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency, dissolution, liquidation or similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Borrower or any of its Material Subsidiaries,
or over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Borrower or any of its Material Subsidiaries for
all or a substantial part of its property; or a warrant of attachment, execution
or similar process shall have been issued against any substantial part of the
property of Borrower or any of its Material Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Borrower or any of its Material Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law (whether federal, state or foreign) now
or hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Borrower or any of its Material Subsidiaries shall make
any assignment for the benefit of creditors; or (ii) Borrower or any of its
Material Subsidiaries shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of Borrower or any of its Material Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
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8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgments, writs or warrants of attachment or similar
processes involving in the aggregate at any time an amount in excess of
$20,000,000 (to the extent such amount is not adequately covered by insurance as
to which the insurance company has not disputed coverage in writing) shall be
entered or filed against Borrower or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days; or
8.9 ERISA.
An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan; or
8.10 CHANGE OF CONTROL.
A Change of Control shall occur; or
8.11 MATERIAL INVALIDITY OF GUARANTIES; MATERIAL FAILURE OF SECURITY;
REPUDIATION OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
material provision of the Subsidiary Guaranty or any guaranty entered into by a
Subsidiary of Borrower pursuant to subsection 6.7B for any reason, other than
the satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be null
and void, in either case, as to any material portion of Subsidiary Guarantors
and other Subsidiaries guaranteeing the Obligations, with respect to the
Subsidiary Guaranty and any guaranty entered into pursuant to subsection 6.7B,
(ii) any Collateral Document shall cease to create a valid security interest in
the collateral purported to be covered thereby or shall cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof), in each case to the extent the same affects a
material portion of the Collateral and in each case for any reason other than
any act or omission of either Agent or any Lender, or (iii) any Loan Party shall
deny in writing its obligations under any Loan Document to which it is a party:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrower, and the obligation of each Lender to
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make any Loan, the obligation of Administrative Agent to issue any Letter of
Credit and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate, and (ii) upon the occurrence and during the continuation of
any other Event of Default, Administrative Agent shall, upon the written request
or with the written consent of Requisite Lenders, by written notice to Borrower,
declare all or any portion of the amounts described in clauses (a) through (c)
above to be, and the same shall forthwith become, immediately due and payable,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; PROVIDED that
the foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be paid to Administrative Agent, for the benefit of
Lenders, and held by Administrative Agent, for the benefit of Lenders, as
collateral security for the Obligations of Borrower in respect of all
outstanding Letters of Credit, and Borrower hereby (X) grants to Administrative
Agent, for the benefit of Lenders, a security interest in all such amounts,
together with any interest accrued thereon and any Investments of such amounts,
as security for the Obligations, (Y) agrees to execute and deliver to
Administrative Agent all such documents and instruments as may be necessary or,
in the opinion of Administrative Agent, desirable in order to more fully
evidence, perfect or protect such security interest, and (Z) agrees that, upon
the honoring by any Issuing Bank of any drawing under a Letter of Credit issued
by it, Administrative Agent is authorized and directed to apply any amounts held
as collateral security in accordance with the terms of this paragraph to
reimburse such Issuing Lender for the amount of such drawing.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Borrower shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Loans, in each
case which is due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Borrower, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to
bind Lenders to a decision which may be made at the election of Requisite
Lenders and are not intended, directly or indirectly, to benefit Borrower, and
such provisions shall not at any time be construed so as to grant Borrower the
right to require Lenders to rescind or annul any acceleration hereunder or to
preclude Agents or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
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SECTION 9. AGENTS
9.1 APPOINTMENT OF AGENTS.
Fleet is hereby appointed Administrative Agent hereunder and under
the other Loan Documents and each Lender hereby authorizes Administrative Agent
to act as its administrative agent in accordance with the terms of this
Agreement and the other Loan Documents. DLJ is hereby appointed Syndication
Agent hereunder and under the other Loan Documents and each Lender hereby
authorizes Syndication Agent to act as its syndication agent in accordance with
the terms of this Agreement and the other Loan Documents. Each Agent agrees to
act upon the express conditions contained in this Agreement and the other Loan
Documents, as applicable. The provisions of this Section 9 are solely for the
benefit of Agents and Lenders and Borrower shall not have any rights as a third
party beneficiary of any of the provisions thereof. In performing their
functions and duties under this Agreement, Agents shall act solely as agents of
Lenders and do not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for Borrower or any of its
Subsidiaries. Documentation Agent shall not have any liability to any Person
under this Agreement except in its capacity as a Lender or, if applicable, an
Issuing Lender.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
X. XXXXXX; DUTIES SPECIFIED. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. Neither Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon either Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Neither Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by either Agent to Lenders or by or on
behalf of Borrower to either Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Borrower or any other Person liable for the
payment of any Obligations, nor shall either Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements
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contained in any of the Loan Documents or to assure that the Collateral exists
or is owned by the Borrower or another Loan Party or is cared for, protected or
insured or that the Liens granted to the Administrative Agent herein or in any
other Loan Document or pursuant hereto or thereto have been properly or
sufficiently or lawfully created, perfected, protected, enforced, realized upon
or are entitled to any particular priority or as to the use of the proceeds of
the Loans or the use of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default. Anything
contained in this Agreement to the contrary notwithstanding, Administrative
Agent shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor
Syndication Agent nor any of their respective officers, directors, employees or
agents shall be liable to Lenders for any action taken or omitted by such Agent
under or in connection with any of the Loan Documents except to the extent
solely caused by such Agent's gross negligence or willful misconduct. Each
Agent shall be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until such Agent shall
have received instructions in respect thereof from Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6) and, upon receipt of such instructions from Requisite Lenders (or such
other Lenders, as the case may be), such Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power, discretion
or authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for
Borrower and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against either Agent as a result of such Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6).
D. AGENTS ENTITLED TO ACT AS LENDERS. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, either Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and the Letters of
Credit, such Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Each Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Borrower or any of its Affiliates as
if it were not performing the duties specified herein, and may accept fees and
other
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consideration from Borrower for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Borrower and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Borrower and its Subsidiaries. Neither
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and neither Agent shall have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify Administrative Agent, Documentation Agent and Syndication Agent to
the extent that such Person shall not have been reimbursed by Borrower, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Person in exercising its
powers, rights and remedies or performing its duties hereunder or under the
other Loan Documents or otherwise in its capacity as Administrative Agent,
Documentation Agent or Syndication Agent, respectively, in any way relating to
or arising out of this Agreement or the other Loan Documents; PROVIDED that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the gross negligence or willful misconduct of the
indemnified Person. If any indemnity furnished to Administrative Agent,
Documentation Agent or Syndication Agent for any purpose shall, in the opinion
of such Person, be insufficient or become impaired, such Person may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 SUCCESSOR AGENTS AND SWING LINE LENDER.
A. SUCCESSOR AGENTS. Syndication Agent may resign as such upon
one Business Day's notice to Borrower and the Administrative Agent.
Administrative Agent may resign at any time by giving 30 days' prior written
notice thereof to all Lenders and Borrower, and Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Borrower and Administrative Agent and signed
by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders
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shall have the right, upon five Business Days' notice to Borrower, to appoint a
successor Administrative Agent acceptable to Borrower (which acceptance shall
not be unreasonably withheld). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
B. SUCCESSOR SWING LINE LENDER. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of Fleet or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Borrower shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender any Swing
Line Note held by it to Borrower for cancellation, and (iii) if so requested by
the successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Borrower shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of EXHIBIT
VII annexed hereto, in the principal amount of the Swing Line Loan Commitment
then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Guaranties, and each Lender agrees to be bound by the terms of each Collateral
Document and each Guaranty; PROVIDED that Administrative Agent shall not (i)
enter into or consent to any material amendment, modification, termination or
waiver of any provision contained in any Collateral Document or the Guaranties
or (ii) release any Collateral (except as otherwise expressly permitted or
required pursuant to the terms of this Agreement or the applicable Collateral
Document), in each case without the prior consent of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6); PROVIDED FURTHER, HOWEVER, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented or (b) release
any Subsidiary from its Guaranty if all of the capital stock (or other
equivalent equity interest) of such Subsidiary is sold to any Person (other than
an Affiliate of Borrower) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented. Anything
contained in any of the Loan Documents to the
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contrary notwithstanding, Borrower, Administrative Agent and each Lender hereby
agree that (X) no Lender shall have any right individually to realize upon any
of the Collateral under any Collateral Document or to enforce the Guaranties, it
being understood and agreed that all powers, rights and remedies under the
Collateral Documents and the Guaranties may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof, and (Y) in the event of a foreclosure by Administrative Agent on any of
the Collateral pursuant to a public or private sale, Administrative Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Administrative Agent, as agent for and representative of Lenders (but not
any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Administrative Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the
right at any time (i) to sell, assign or transfer to any Eligible Assignee, or
(ii) to sell participations to any Person in, all or any part of its Commitments
or any Loan or Loans made by it or its Letters of Credit or participations
therein or any other interest herein or in any other Obligations owed to it;
PROVIDED that no such sale, assignment, transfer or participation shall, without
the consent of Borrower, require Borrower to file a registration statement with
the SEC or apply to qualify such sale, assignment, transfer or participation
under the securities laws of any state; PROVIDED FURTHER that no such sale,
assignment or transfer described in clause (i) above shall be effective unless
and until an Assignment Agreement effecting such sale, assignment or transfer
shall have been accepted by Agents and recorded in the Register as provided in
subsection 10.1B(ii); PROVIDED FURTHER that no such sale, assignment, transfer
or participation of any Letter of Credit or any participation therein may be
made separately from a sale, assignment, transfer or participation of a
corresponding interest in the Revolving Loan Commitment and the Revolving Loans
of the Lender effecting such sale, assignment, transfer or participation; and
PROVIDED FURTHER that anything contained herein to the contrary notwithstanding,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may
not be sold, assigned or transferred as described in clause (i) above to any
Person other than a successor Administrative Agent and Swing Line Lender to the
extent contemplated by subsection 9.5. Except as otherwise provided in this
subsection 10.1, no Lender shall, as between Borrower and such Lender, be
relieved of any of its obligations hereunder as a result of any sale, assignment
or transfer of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein, or
the other Obligations owed to such Lender.
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B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan,
Letter of Credit or participation therein, or other Obligation may (a) be
assigned in a minimum amount of $1,000,000 to another Lender, to an
Affiliate of the assigning Lender or another Lender, or, with respect to
any Lender that is an investment fund that invests in commercial loans, any
other investment fund that invests in commercial loans and that is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor, with the giving of notice to Borrower and Agents or (b)
be assigned in an aggregate amount of not less than $5,000,000 (or such
lesser amount as shall constitute the aggregate amount of the Commitments,
Loans, Letters of Credit and participations therein, and other Obligations
of the assigning Lender) to any other Eligible Assignee with the consent of
Borrower and Agents (which consent of Borrower and Agents shall not be
unreasonably withheld or delayed, and in the case of any assignment by a
Lender that is an Agent or an Affiliate thereof, which consent of the
Agents shall not be required); PROVIDED, that the consent of Borrower shall
not be required for any assignment that occurs at any time when an Event of
Default under subsection 8.6 or 8.7 shall have occurred and be continuing.
To the extent of any such assignment in accordance with either clause (a)
or (b) above, the assigning Lender shall be relieved of its obligations
with respect to its Commitments, Loans, Letters of Credit or participations
therein, or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to Administrative
Agent, for its acceptance and recording in the Register, an Assignment
Agreement, together with a processing and recordation fee of $2,500 and
such forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iv)(a). Upon such execution, delivery,
acceptance and recordation, from and after the effective date specified in
such Assignment Agreement, (y) 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 Agreement, shall have the rights
and obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the termination of this
Agreement under subsection 10.8B) and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; PROVIDED that, anything contained in any of the Loan Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender and, if any
such assignment occurs after the issuance of any Notes
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hereunder, the assigning Lender shall, at the time of assignment, surrender
its applicable Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the
assigning Lender in accordance with subsection 2.1E, be issued to the
assignee and to the assigning Lender, substantially in the form of EXHIBIT
IV, EXHIBIT V, EXHIBIT VI or EXHIBIT VII annexed hereto, as the case may
be, with appropriate insertions, to reflect the new Commitments and/or
outstanding Tranche A Term Loans and/or Tranche B Term Loans, as the case
may be, of the assignee and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION IN REGISTER.
Upon its receipt of an Assignment Agreement executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together with
the processing and recordation fee referred to in subsection 10.1B(i) and
any forms, certificates or other evidence with respect to United States
federal income tax withholding matters that such assignee may be required
to deliver to Administrative Agent pursuant to subsection 2.7B(iv)(a), and
with respect to a Loan evidenced by a Note, surrender of the Note
evidencing such Loan for cancellation, Administrative Agent shall, if
Agents and Borrower have consented to the assignment evidenced thereby (in
each case to the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to Borrower and Syndication Agent. Administrative Agent shall
maintain a copy of each Assignment Agreement delivered to and accepted by
it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such participation
or a reduction of the fee payable in respect of any Letter of Credit allocated
to such participation or a reduction of any commitment fee in respect of any
Commitment allocated to such participation, and all amounts payable by Borrower
hereunder (including amounts payable to such Lender pursuant to subsections
2.6D, 2.7 and 3.6) shall be determined as if such Lender had not sold such
participation. Borrower and each Lender hereby acknowledge and agree that,
solely for purposes of subsections 10.4 and 10.5, (a) any participation will
give rise to a direct obligation of Borrower to the participant and (b) the
participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS AND FUND TRUSTEES. In
addition to the assignments and participations permitted under the foregoing
provisions of this subsection 10.1, any Lender may assign and pledge all or any
portion of its Loans, the other Obligations owed to such Lender, and its Notes
to any Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank and with the consent of Borrower and Agents,
any
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Lender which is an investment fund may pledge all or any portion of its Notes or
Loans to its trustee in support of its obligations to its trustee; PROVIDED that
(i) no Lender shall, as between Borrower and such Lender or between any Agent
and such Lender, be relieved of any of its obligations hereunder as a result of
any such assignment and pledge and (ii) in no event shall such Federal Reserve
Bank be considered to be a "Lender" or be entitled to require the assigning
Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning
Borrower and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.18.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature
pages hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 EXPENSES.
Subject to the making of the Term Loans to Borrower by Tranche A Term
Lenders and Tranche B Term Lenders on the Closing Date, and whether or not the
other transactions contemplated hereby shall be consummated, Borrower agrees to
pay promptly (i) all the actual and reasonable costs and expenses of preparation
of the Loan Documents and any consents, amendments, waivers or other
modifications thereto; (ii) all the costs of furnishing all opinions by counsel
for Borrower (including any opinions requested by Lenders as to any legal
matters arising hereunder) and of Borrower's performance of and compliance with
all agreements and conditions on its part to be performed or complied with under
this Agreement and the other Loan Documents including with respect to confirming
compliance with environmental, insurance and solvency requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to Agents (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Borrower; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
fees, expenses and taxes, stamp or documentary taxes, search fees and reasonable
fees, expenses and disbursements of counsel to Agents; (v) all the actual costs
and reasonable expenses (including the reasonable fees, expenses and
disbursements of any environmental consultants retained by Agents or its
counsel) of obtaining and reviewing
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any environmental audits or reports provided for on or before the Closing Date;
(vi) all the actual costs and reasonable expenses of the custody or preservation
of any of the Collateral; (vii) all other actual and reasonable costs and
expenses incurred by Syndication Agent, Documentation Agent and Administrative
Agent in connection with the syndication of the Commitments and the negotiation,
preparation and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and (viii) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees and costs of settlement, incurred
by Agents and each Lender in enforcing any Obligations of or in collecting any
payments due from any Loan Party hereunder or under the other Loan Documents by
reason of such Event of Default (including in connection with the sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranties) or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Borrower agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent, Syndication Agent,
Documentation Agent and each Lender, and the officers, directors, employees,
trustees, partners, agents and affiliates of Administrative Agent, Syndication
Agent, Documentation Agent and each Lender (collectively called the
"INDEMNITEES"), from and against any and all Indemnified Liabilities (as
hereinafter defined); PROVIDED that Borrower shall not have any obligation to
any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross negligence or
willful misconduct of that Indemnitee as determined by a final judgment of a
court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Loan Documents or the
Related Agreements or the transactions contemplated hereby or thereby (including
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds thereof or the issuance of Letters of Credit hereunder or the use or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection
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from, or other realization upon any of the Collateral or the enforcement of the
Guaranties), (ii) the statements contained in the commitment letter delivered by
any Lender to Borrower with respect thereto, or (iii) any Environmental Claim or
any Hazardous Materials relating to or arising from, directly or indirectly, any
past or present activity, operation, land ownership, or practice of Borrower or
any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 SET-OFF.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Borrower at any time or
from time to time, without notice to Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of Borrower against and on account of any
obligations and liabilities of Borrower then due and payable to that Lender
under this Agreement, the Letters of Credit and participations therein and the
other Loan Documents, irrespective of whether or not that Lender shall have made
any demand for payment thereof.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
each Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
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them; PROVIDED that if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of Borrower or otherwise, those purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Borrower expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Borrower to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by Borrower
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that no such amendment, modification, termination,
waiver or consent shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)): (i) extend the
scheduled final maturity of any Loan or Note, or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Commitment Termination
Date, or reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to subsection
2.2E) or any commitment fees or letter of credit fees payable hereunder, or
extend the time for payment of any such interest or fees, or reduce the
principal amount of any Loan or any reimbursement obligation in respect of any
Letter of Credit, (ii) amend, modify, terminate or waive any provision of this
subsection 10.6, (iii) reduce the percentage specified in the definition of
"Requisite Lenders" (it being understood that, with the consent of Requisite
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of "Requisite Lenders" on substantially the same
basis as the Term Loans, the Revolving Loan Commitments and the Revolving Loans
are included on the Closing Date) or (iv) consent to the assignment or transfer
by Borrower of any of its rights and obligations under this Agreement; PROVIDED,
FURTHER that no such amendment, modification, termination or waiver shall (1)
increase the Commitments of any Lender over the amount thereof then in effect
without the consent of such Lender (it being understood that no amendment,
modification or waiver of any condition precedent, covenant, Potential Event of
Default or Event of Default shall constitute an increase in the Commitment of
any Lender, and that no increase in the available portion of any Commitment of
any Lender shall constitute an increase in such Commitment of such Lender); (2)
amend, modify, terminate or waive any provision of subsection 2.1A(iv) or any
other provision of this Agreement relating to the Swing Line Loan Commitment or
the Swing Line Loans without the consent of Swing Line Lender; (3) amend the
definition of "Supermajority Class Lenders" without the consent of the
Supermajority Class Lenders of each Class, or release all or substantially all
of the Collateral or all or substantially all of the Subsidiary Guarantors from
the Subsidiary Guaranty except as expressly provided in the Loan Documents,
without the consent of the Supermajority Class Lenders of each Class, (4) amend
the definition of "Requisite Class Lenders" without the consent of Requisite
Class Lenders of each Class, or alter the required application of any repayments
or prepayments as
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between Classes pursuant to subsection 2.4B(iv) without the consent of Requisite
Class Lenders of each Class which is being allocated a lesser repayment or
prepayment as a result thereof (although Requisite Lenders may waive, in whole
or in part, any mandatory prepayment so long as the application, as between
Classes, of any portion of such prepayment which is still required to be made is
not altered); (5) without the consent of Requisite Class Lenders of the
respective Class, waive, reduce or postpone any scheduled repayment (other than
the repayment scheduled on the scheduled final maturity date of any Loan or
Note) set forth in subsection 2.4A(i) or 2.4A(ii) with respect to the applicable
Term Loans of such affected Class; (6) amend, modify, terminate or waive any
obligation of Lenders relating to the purchase of participations in Letters of
Credit as provided in subsection 3.1C without the written concurrence of
Administrative Agent and of each Issuing Lender which has a Letter of Credit
then outstanding or which has not been reimbursed for a drawing under a Letter
of Credit issued it; or (7) amend, modify, terminate or waive any provision of
Section 9 as the same applies to Administrative Agent, or any other provision of
this Agreement as the same applies to the rights or obligations of
Administrative Agent, in each case without the consent of Administrative Agent;
PROVIDED, FURTHER, that at any time that no Potential Event of Default or Event
of Default has occurred and is continuing, the Revolving Loan Commitment of any
Lender may be increased, with the consent of such Lender and the Borrower and
without the consent of the Requisite Lenders, (x) so long as (I) the Increased
Commitment Amount (as defined below) at such time, when added to the amount of
Indebtedness permitted pursuant to subsection 7.1(x)(b) and outstanding at such
time, does not exceed the limits set forth therein, (II) the capital stock (or
other equivalent equity interest) of such Person (which Person shall become a
direct Domestic Subsidiary of Borrower in connection with the Acquisition
referred to therein) whose Indebtedness is permitted to remain outstanding under
subsection 7.1(x)(b) shall be pledged by Borrower in accordance with subsection
6.7A, and (III) such Person shall execute and deliver to Administrative Agent a
supplement to the Subsidiary Guaranty in accordance with subsection 6.7A, and
(y) to the extent determined by the Administrative Agent to be necessary to
ensure pro rata borrowings commencing with the initial borrowing after giving
effect to such increase, the Borrower shall prepay any LIBOR Loans outstanding
immediately prior to such initial borrowing; as used herein, the "INCREASED
COMMITMENT AMOUNT" means at any time, the aggregate amount of all increases
pursuant to this PROVISO made at or prior to such time less the aggregate amount
of all reductions of the Revolving Loan Commitments made prior to such time.
B. Administrative Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute amendments, modifications, waivers
or consents on behalf of that Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Borrower in any case shall entitle Borrower to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and Borrower, if signed by Borrower.
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10.7 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; PROVIDED that notices to either Agent shall not be
effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Borrower and each Agent, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Borrower set forth in subsections 2.6D, 2.7,
3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.10 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent, nor Syndication Agent nor any Lender
shall be under any obligation to marshal any assets in favor of Borrower or any
other party or against or in payment of any or all of the Obligations. To the
extent that Borrower makes a payment or payments to either Agent or Lenders (or
to either Agent for the benefit of Lenders), or either Agent or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
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subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.11 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
10.13 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.14 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
10.15 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and
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assigns of Lenders (it being understood that Lenders' rights of assignment are
subject to subsection 10.1). Borrower's rights or obligations hereunder or
under the other Loan Documents or any interest therein may not be assigned or
delegated by Borrower without the prior written consent of all Lenders.
10.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.7;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
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10.17 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS AMONG THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.18 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant
to the requirements of this Agreement which has been identified as confidential
by Borrower in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Borrower that in any event
a Lender may make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein or disclosures required or requested by any
governmental agency or representative thereof, or the National Association of
Insurance Commissioners (the "NAIC") or any other Person with the prior written
consent of Borrower and Agents in the exercise of their respective sole
discretion or pursuant to legal process; PROVIDED that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Borrower
of any request by any governmental agency or representative thereof or the NAIC
(other than any such request in connection with any examination of the financial
condition of such Lender by such governmental agency or the NAIC) for disclosure
of any such non-public information prior to disclosure of
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such information; and PROVIDED, FURTHER that in no event shall any Lender be
obligated or required to return any materials furnished by Borrower or any of
its Subsidiaries.
10.19 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrower and
Agents of written or telephonic notification of such execution and authorization
of delivery thereof.
10.20 OTHER TRANSACTIONS.
Nothing contained herein shall preclude the Administrative Agent,
the Syndication Agent, the Documentation Agent, any Issuing Lender or any other
Lender from engaging in any transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with Borrower or any of its
Affiliates in which Borrower or such Affiliate is not restricted hereby from
engaging with any other Person.
10.21. ENTIRE AGREEMENT.
This Agreement, together with the other Loan Documents and the Fee
Letters, embodies the entire agreement and understanding among Borrower, Lenders
and Agents, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
THE BOYDS COLLECTION, LTD.
By: /s/ Xxxxxxxxx Xxxx
------------------------------
Name: Xxxxxxxxx Xxxx
Title: Chief Operating Officer
Notice Address: 000 Xxxxx Xxxxxx
XxXxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: 000-000-0000
AGENTS:
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Notice Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
S-1
FLEET NATIONAL BANK,
as Administrative Agent
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Director
Notice Address: Xxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxx
Facsimile: 000-000-0000
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
as Documentation Agent
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
Notice Address: Two World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
S-2
LENDERS:
DLJ CAPITAL FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Notice Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
Notice Address: Two World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
S-3
LENDERS:
FLEET NATIONAL BANK
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Director
Notice Address: Xxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxx
Facsimile: 000-000-0000
S-4
EXHIBIT I
[FORM OF]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of April 21,
1998, as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being
the "CREDIT AGREEMENT", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among The Boyds
Collection, Ltd., a Maryland corporation ("BORROWER"), the financial
institutions listed therein as Lenders ("LENDERS"), DLJ Capital Funding,
Inc., as Syndication Agent, The Fuji Bank, Limited, New York Branch, as
Documentation Agent, and Fleet National Bank, as Administrative Agent
("ADMINISTRATIVE AGENT"), this represents Borrower's request to borrow as
follows:
1. DATE OF BORROWING: ________________, ______
2. AMOUNT OF BORROWING: $________
3. LENDER(S): a. Lenders, in accordance with their
applicable Pro Rata Shares
b. Swing Line Lender
4. TYPE OF LOANS: a. Tranche A Term Loans
b. Tranche B Term Loans
c. Revolving Loans
d. Swing Line Loan
5. INTEREST RATE OPTION: a. Base Rate Loan(s)
b. LIBOR Loans with an initial Interest
Period of ____________ month(s)*
-----------------------
* NOT AVAILABLE FOR SWING LINE LOANS.
The proceeds of such Loans are to be deposited in Borrower's account at
Administrative Agent.
The undersigned officer, to the best of his or her knowledge,
and Borrower certify that:
(i) The representations and warranties contained in
the Credit Agreement and the other Loan Documents are true,
correct and complete in all material respects on and as of the
date hereof to the same extent as though made on and as of the
date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which
case such representations and warranties were true, correct
and complete in all material respects on and as of such
earlier date; and
(ii) No event has occurred and is continuing or would
result from the consummation of the borrowing contemplated
hereby that would constitute an Event of Default or a
Potential Event of Default.
DATED: ______________ THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
EXHIBIT II
[FORM OF]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of April
21, 1998, as amended, supplemented or otherwise modified to the date hereof
(said Credit Agreement, as so amended, supplemented or otherwise modified, being
the "CREDIT AGREEMENT", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among The Boyds Collection,
Ltd., a Maryland corporation ("BORROWER"), the financial institutions listed
therein as Lenders, DLJ Capital Funding, Inc., as Syndication Agent,The Fuji
Bank, Limited, New York Branch, as Documentation Agent, and Fleet National Bank,
as Administrative Agent, this represents Borrower's request to convert or
continue Loans as follows:
1. DATE OF CONVERSION/CONTINUATION: ________________, ______
2. AMOUNT OF LOANS BEING
CONVERTED/CONTINUED: $______________________
3. TYPE OF LOANS BEING
CONVERTED/CONTINUED: a. Tranche A Term Loans
b. Tranche B Term Loans
c. Revolving Loans
4. NATURE OF
CONVERSION/CONTINUATION: a. Conversion of Base Rate Loans
to LIBOR Loans
b. Conversion of LIBOR Loans to
Base Rate Loans
c. Continuation of LIBOR Loans
as such
5. If Loans are being continued as or converted to LIBOR Loans, the
duration of the new Interest Period that commences on the
conversion/continuation date: ______________ month(s)
I-1
In the case of a conversion to or continuation of LIBOR
Loans, the undersigned officer, to the best of his or her knowledge, and
Borrower certify that no Event of Default or Potential Event of Default has
occurred and is continuing under the Credit Agreement.
DATED: ______________ THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
II-2
EXHIBIT III
[FORM OF]
NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of April 21, 1998,
as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being
the "CREDIT AGREEMENT", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among The Boyds
Collection, Ltd., a Maryland corporation ("BORROWER"), the financial
institutions listed therein as Lenders, DLJ Capital Funding, Inc., as
Syndication Agent, The Fuji Bank, Limited, New York Branch, as Documentation
Agent, and Fleet National Bank, as Administrative Agent ("ADMINISTRATIVE
AGENT"), this represents Borrower's request for the issuance of a Letter of
Credit by Administrative Agent as follows:
1. DATE OF ISSUANCE OF LETTER OF CREDIT: _________________, _____
2. TYPE OF LETTER OF CREDIT: a. Commercial Letter of Credit
b. Standby Letter of Credit
3. FACE AMOUNT OF LETTER OF CREDIT: $_______________________
4. EXPIRATION DATE OF LETTER OF CREDIT: _________________, _____
5. NAME AND ADDRESS OF BENEFICIARY:
6. ATTACHED HERETO IS:
a. the verbatim text of such proposed Letter of Credit
b. a description of the proposed terms and conditions of
such Letter of Credit, including a precise
description of any documents to be presented by the
beneficiary which, if presented by the beneficiary
prior to the expiration date of such Letter of
Credit, would require the Issuing Lender to make
payment under such Letter of Credit.
The undersigned officer, to the best of his or her knowledge,
and Borrower certify that:
(i) The representations and warranties contained in
the Credit Agreement and the other Loan Documents are true,
correct and complete in all material respects on and as of the
date hereof to the same extent as though made on and as of the
date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which
case such representations and warranties were true, correct
and complete in all material respects on and as of such
earlier date; and
(ii) No event has occurred and is continuing or would
result from the issuance of the Letter of Credit contemplated
hereby that would constitute an Event of Default or a
Potential Event of Default.
DATED: ______________ THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
III-2
EXHIBIT IV
[FORM OF TRANCHE A TERM NOTE]
THE BOYDS COLLECTION, LTD.
PROMISSORY NOTE DUE APRIL 21, 2005
$______________ New York, New York
April 21, 1998
FOR VALUE RECEIVED, THE BOYDS COLLECTION, LTD., a Maryland
corporation ("BORROWER"), promises to pay to ______________ ("PAYEE") or its
registered assigns the principal amount of _____________ ($_______________)
in the installments referred to below.
Borrower also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at
the times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of April 21, 1998 by and among Borrower,
the financial institutions listed therein as Lenders, DLJ Capital Funding,
Inc., as Syndication Agent, The Fuji Bank, Limited, New York Branch, as
Documentation Agent, and Fleet National Bank, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT", the terms defined therein
and not otherwise defined herein being used herein as therein defined).
Borrower shall make principal payments on this Note in consecutive
annual installments, commencing on the second anniversary of the Closing Date
and ending on the seventh anniversary of the Closing Date. Each such
installment shall be due on the date specified in the Credit Agreement and in
an amount determined in accordance with the provisions thereof; PROVIDED that
the last such installment shall be in an amount sufficient to repay the
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon.
This Note is one of Borrower's "Tranche A Term Notes" in the
aggregate principal amount of $100,000,000 and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Tranche A Term Loan evidenced hereby was made and is to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at
the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of this Note shall have been accepted by
IV-1
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii) of the Credit Agreement, Borrower and Agents shall be entitled to
deem and treat Payee as the owner and holder of this Note and the Loan
evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of
all principal amounts previously made hereunder and of the date to which
interest hereon has been paid; PROVIDED, HOWEVER, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Borrower hereunder with respect to payments of principal
of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option
of Borrower as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE SATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.15 of the Credit Agreement.
Borrower and any endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IV-2
IN WITNESS WHEREOF, Borrower has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
IV-3
EXHIBIT V
[FORM OF TRANCHE B TERM NOTE]
THE BOYDS COLLECTION, LTD.
PROMISSORY NOTE DUE APRIL 21, 2006
$____________ New York, New York
April 21, 1998
FOR VALUE RECEIVED, THE BOYDS COLLECTION, LTD., a Maryland
corporation ("BORROWER"), promises to pay to _________________ ("PAYEE") or
its registered assigns the principal amount of _____________ ($_____________)
in the installments referred to below.
Borrower also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at
the times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of April 21, 1998 by and among Borrower,
the financial institutions listed therein as Lenders, DLJ Capital Funding,
Inc., as Syndication Agent, The Fuji Bank, Limited, New York Branch, as
Documentation Agent, and Fleet National Bank, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT", the terms defined therein
and not otherwise defined herein being used herein as therein defined).
Borrower shall make principal payments on this Note in consecutive
annual installments, commencing on the second anniversary of the Closing Date
and ending on the eighth anniversary of the Closing Date. Each such
installment shall be due on the date specified in the Credit Agreement and in
an amount determined in accordance with the provisions thereof; PROVIDED that
the last such installment shall be in an amount sufficient to repay the
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon.
This Note is one of Borrower's "Tranche B Term Notes" in the
aggregate principal amount of $225,000,000 and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Tranche B Term Loan evidenced hereby was made and is to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at
the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of this Note shall have been accepted by
V-1
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii) of the Credit Agreement, Borrower and Agents shall be entitled to
deem and treat Payee as the owner and holder of this Note and the Loan
evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of
all principal payments previously made hereunder and of the date to which
interest hereon has been paid; PROVIDED, HOWEVER, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Borrower hereunder with respect to payments of principal
of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option
of Borrower as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.15 of the Credit Agreement.
Borrower and any endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
V-2
IN WITNESS WHEREOF, Borrower has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
V-3
EXHIBIT VI
[FORM OF REVOLVING NOTE]
THE BOYDS COLLECTION, LTD.
PROMISSORY NOTE DUE APRIL 21, 2005
$________________ New York, New York
April 21, 1998
FOR VALUE RECEIVED, THE BOYDS COLLECTION, LTD., a Maryland
corporation ("BORROWER"), promises to pay to ____________________ ("PAYEE")
or its registered assigns, on or before April 21, 2005, the lesser of (x)
______________ ($_________) and (y) the unpaid principal amount of all
advances made by Payee to Borrower as Revolving Loans under the Credit
Agreement referred to below.
Borrower also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at
the times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of April 21, 1998 by and among Borrower,
the financial institutions listed therein as Lenders, DLJ Capital Funding,
Inc., as Syndication Agent, The Fuji Bank, Limited, New York Branch, as
Documentation Agent, and Fleet National Bank, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT", the terms defined therein
and not otherwise defined herein being used herein as therein defined).
This Note is one of Borrower's "Revolving Notes" in the aggregate
principal amount of $40,000,000 and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a
more complete statement of the terms and conditions under which the Revolving
Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at
the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii) of the Credit
Agreement, Borrower and Agents shall be entitled to deem and treat Payee as
the owner and holder of this Note and the Loans evidenced hereby. Payee
hereby agrees, by its acceptance hereof, that before disposing of this Note
or any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; PROVIDED, HOWEVER, that the failure to make a
VI-1
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Borrower hereunder with respect to payments of principal
of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option
of Borrower as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.15 of the Credit Agreement.
Borrower and any endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
VI-2
TRANSACTIONS
ON
REVOLVING NOTE
Date Type of Amount of Amount of Outstanding Notation
---- Loan Made Loan Made Principal Paid Principal Made By
This Date This Date This Date Balance -------
--------- --------- --------- This Date
---------
VI-3
EXHIBIT VII
[FORM OF SWING LINE NOTE]
THE BOYDS COLLECTION, LTD.
PROMISSORY NOTE DUE APRIL 21, 2005
$5,000,000 New York, New York
April 21, 1998
FOR VALUE RECEIVED, THE BOYDS COLLECTION, LTD., a Maryland
corporation ("BORROWER"), promises to pay to FLEET NATIONAL BANK ("PAYEE"),
on or before April 21, 2005, the lesser of (x) FIVE MILLION and NO/100
DOLLARS ($5,000,000.00) and (y) the unpaid principal amount of all advances
made by Payee to Borrower as Swing Line Loans under the Credit Agreement
referred to below.
Borrower also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at
the times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of April 21, 1998 by and among Borrower,
the financial institutions listed therein as Lenders, DLJ Capital Funding,
Inc., as Syndication Agent, The Fuji Bank, Limited, New York Branch, as
Documentation Agent, and Payee, as Administrative Agent (said Credit
Agreement, as it may be amended, supplemented or otherwise modified from time
to time, being the "CREDIT AGREEMENT", the terms defined therein and not
otherwise defined herein being used herein as therein defined).
This Note is Borrower's "Swing Line Note" and is issued pursuant to
and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Swing Line Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at
the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option
of Borrower as provided in subsection 2.4B(i) of the Credit Agreement.
VII-1
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.15 of the Credit Agreement.
Borrower and any endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
VII-2
TRANSACTIONS
ON
SWING LINE NOTE
Date Amount of Amount of Outstanding Notation
---- Loan Made Principal Paid Principal Made By
This Date This Date Balance -------
--------- --------- This Date
---------
VII-3
EXHIBIT VIII
[FORM OF]
OFFICER'S CLOSING DATE CERTIFICATE
This OFFICER'S CLOSING DATE CERTIFICATE (this "CERTIFICATE") is
delivered in connection with that certain Credit Agreement dated as of April
21, 1998 (the "CREDIT AGREEMENT") by and among The Boyds Collection, Ltd., a
Maryland corporation ("BORROWER"), the financial institutions referred to
therein as Lenders ("LENDERS"), DLJ Capital Funding, Inc., as Syndication
Agent, The Fuji Bank, Limited, New York Branch, as Documentation Agent, and
Fleet National Bank, as Administrative Agent. Capitalized terms used herein
without definition have the same meanings as in the Credit Agreement. The
undersigned duly qualified and acting Chief Operating Officer, Controller and
Secretary of Borrower hereby certifies on behalf of Borrower solely in my
capacity as an officer of Borrower and not personally as follows:
A. I am, and at all pertinent times mentioned herein have been, the
duly qualified and acting Chief Operating Officer, Controller and Secretary
of Borrower. In such capacity, I have participated actively in the management
of the affairs and operations of Borrower and its Subsidiaries. I have,
together with other officers of Borrower, acted on behalf of Borrower in
connection with the negotiation of the Credit Agreement, the Loan Documents
and the Related Documents and I am familiar with the terms and conditions
thereof.
B. I have carefully reviewed the contents of this Certificate, and
I have conferred with counsel for Borrower for the purpose of discussing the
meaning of its contents.
C. After giving effect to the Recapitalization, the
representations and warranties contained in Section 5 of the Credit Agreement
and in each of the other Loan Documents are true and correct in all material
respects on and as of the Closing Date as though made on and as of such date
(except to the extent such representations and warranties expressly refer to
an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date);
D. No Potential Event of Default or Event of Default exists or
would result from the initial Loans, the consummation of the Recapitalization
and other transactions contemplated by the Loan Documents and the Related
Agreements or from the grant or perfection of the Lien of Agents and Lenders
on the collateral security provided under the Loan Documents;
E. No material adverse change has occurred since December 31, 1997
with respect to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Borrower and its Subsidiaries, taken
as a whole;
VIII-1
F. Neither Borrower nor any of its Subsidiaries is subject to any
material litigation or governmental proceeding with respect to the
Recapitalization and other transactions contemplated by the Loan Documents
and the Related Agreements and no injunction or restraining order exists with
respect to the Recapitalization and such transactions;
G. The conditions set forth in clauses (C), (E), (F) and (G) of
Section 4.1 of the Credit Agreement have been satisfied;
H. Attached hereto as ANNEXES I and II are true and complete
copies of the Recapitalization Agreement and the Senior Subordinated Debt
Documents, respectively, together with all schedules and exhibits thereto
reasonably requested by Syndication Agent; none of the foregoing documents
having been amended or modified;
I. Attached hereto as ANNEXES III and IV are true and complete
copies of the financial statements and pro forma balance sheet referred to in
subsections 4.1I(i) and 4.1I(ii), respectively;
J. Attached hereto as ANNEX V is a true and complete copy of the
Articles of Incorporation of Borrower as in full force and effect as of the
date hereof. No action has been taken by Borrower or by the stockholders,
directors or officers of Borrower in contemplation of the filing of any
amendment or other document and no action or proceeding with respect to
liquidation or dissolution of Borrower is pending or contemplated;
K. Attached hereto as ANNEX VI is a true and complete copy of the
By-laws of Borrower, including all amendments thereto, if any, as in full
force and effect as of the date hereof;
L. Attached hereto as ANNEX VII is a true and complete copy of
resolutions duly adopted by the unanimous written consent of the Board of
Directors of Borrower, dated April 15, 1998, and such resolutions have not
been amended, modified or rescinded and remain in full force and effect as of
the date hereof; and
M. The individuals whose names are set forth on SCHEDULE I hereto
are the qualified and acting officers of Borrower as set forth in the right
column opposite their respective names and the signature appearing in the
extreme right column opposite the name of each of such officer is a true
specimen of the genuine signature of such person;
and the undersigned Chief Executive Officer and President of Borrower hereby
certifies on behalf of Borrower solely in his capacity as an officer of
Borrower and not personally as follows:
VIII-2
N. Xxxxxxxxx X. Xxxx is duly elected and qualified as Chief
Operating Officer, Controller and Secretary of Borrower as of the date
hereof, and that the signature set forth below is such officer's genuine
signature.
VIII-3
IN WITNESS WHEREOF, the undersigned have hereunto set our names.
------------------------------------ ----------------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxxxxxx X. Xxxx
Title: Chief Executive Officer and Title: Chief Operating Officer,
President Controller and Secretary
VIII-4
SCHEDULE I
OFFICERS OF BORROWER
NAME OFFICE SIGNATURE
---- ------ ---------
Xxxx X. Xxxxxxxxx Chief Executive Officer and
President ----------------------------
Xxxxxxxxx X. Xxxx Chief Operating Officer, ----------------------------
Controller and Secretary
VIII-5
EXHIBIT IX
[FORM OF]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [Title] and [Title] of The Boyds
Collection, Ltd., a Maryland corporation ("BORROWER"); this Certificate
is given on behalf of Borrower solely in our capacities as officers of
Borrower and not personally;
(2) We have reviewed the terms of that certain Credit
Agreement dated as of April 21, 1998, as amended, supplemented or
otherwise modified to the date hereof (said Credit Agreement, as so
amended, supplemented or otherwise modified, being the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined in this
Certificate (including Attachment No. 1 annexed hereto and made a part
hereof) being used in this Certificate as therein defined), by and
among Borrower, the financial institutions listed therein as Lenders,
DLJ Capital Funding, Inc., as Syndication Agent, The Fuji Bank,
Limited, New York Branch, as Documentation Agent, and Fleet National
Bank, as Administrative Agent, and the terms of the other Loan
Documents, and we have made, or have caused to be made under our
supervision, a review in reasonable detail of the transactions and
condition of Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements; and
(3) The examination described in paragraph (2) above did not
disclose, and we have no knowledge of, the existence of any condition
or event which constitutes an Event of Default or Potential Event of
Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate[,
except as set forth below].
[Set forth [below] [in a separate attachment to this Certificate] are
all exceptions to paragraph (3) above listing, in detail, the nature of the
condition or event, the period during which it has existed and the action which
Borrower has taken, is taking, or proposes to take with respect to each such
condition or event:
IX-1
The foregoing certifications, together with the computations set
forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are
made and delivered this _____ day of April, 1998 pursuant to subsection
6.1(iii) of the Credit Agreement.
THE BOYDS COLLECTION, LTD.
By:
Name:
Title:
By:
Name:
Title:
IX-2
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ________, ____ and pertains to the period from
__________, ___ to _________, ___. Subsection references herein relate to
subsections of the Credit Agreement.
A. Indebtedness
1. Indebtedness in respect of Capital Leases permitted under $_____________
subsection 7.1(iii):
2. Maximum permitted under subsection 7.1(iii): $25,000,000
3. Indebtedness permitted under subsection 7.1(x): $_____________
4. Maximum permitted under subsection 7.1(x): $75,000,000
5. Indebtedness permitted under subsection 7.1(xii): $_____________
6. Maximum permitted under subsection 7.1(xii): $100,000,000
B. Liens
1. Indebtedness permitted under subsection 7.1(x) secured by liens $_____________
on assets not equally and ratably shared by Administrative Agent
and Lenders:
2. Maximum permitted under 7.2(vi): $75,000,000
3. Indebtedness secured by Liens permitted under subsection 7.2(vii): $_____________
4. Maximum permitted under subsection 7.2(vii): $25,000,000
C. Investments
1. Investments in loans and advances to officers, directors and $_____________
employees other than for the purchase of stock permitted under
subsection 7.3(ii):
2. Maximum permitted under subsection 7.3(ii): $5,000,000
3. Unrestricted Investments in Unrestricted Subsidiaries permitted $_____________
under subsection 7.3(v)(a):
4. Maximum permitted under subsection 7.3(v)(a): $25,000,000
IX-3
5. Aggregate Unrestricted Investments permitted under $_____________
subsection 7.3(v):
6. Maximum permitted under subsection 7.3(v): $50,000,000
D. Guarantee Obligations
1. Guarantee Obligations permitted under subsection 7.4(viii): $_____________
2. Maximum permitted under subsection 7.4(viii): $15,000,000
E. Restricted Junior Payments
1. Aggregate amount of dividends paid since the Closing Date in $_____________
respect of Borrower's common stock as permitted under
clause (v) of subsection 7.5:
2. Cumulative Consolidated Net Income during the period from the $_____________
Closing Date to the end of the Fiscal Quarter most recently ended:
3. Maximum aggregate amount of dividends since Closing Date $_____________
(50% of E.2)
F. MINIMUM INTEREST COVERAGE RATIO (for the four-Fiscal Quarter
period ending _____________, ____)
1. Consolidated Net Income: $_____________
2. Consolidated Interest Expense: $_____________
3. Provisions for taxes based on income: $_____________
4. Total depreciation expense: $_____________
5. Total amortization expense: $_____________
6. Expenses or charges incurred in connection with any issuance of $_____________
debt or equity Securities:
7. Restructuring charges or reserves: $_____________
8. Expenses or charges relating to the Recapitalization: $_____________
9. Fees and expenses related to permitted acquisitions and $_____________
investments:
10. Other non-cash charges: $_____________
11. Deductions for minority interest expense: $_____________
12. Other non-recurring charges: $_____________
13. Non-recurring gains: $_____________
14. Non-cash gains: $_____________
15. Net EBITDA Adjustment: $_____________
16. Consolidated Adjusted EBITDA prior to Pro Forma Adjustment (E.1 + $_____________
E.2 + E.3 + E.4 + E.5 + E.6 + E.7 + E.8 + E.9 + E.10 + E.11 +
E.12 - E.13 - E.14 + 15):
17. Pro Forma Adjustment: $_____________
IX-4
18. Consolidated Adjusted EBITDA $_____________
(E.16 + E.17):
19. Interest Coverage Ratio (E.18):(E.2): ____:1.00
20. Minimum ratio required under subsection 7.6A: ____:1.00
G. MAXIMUM LEVERAGE RATIO (as of _________, ___)
1. Consolidated Total Debt: $_____________
2. Consolidated Adjusted EBITDA (F.18): $_____________
3. Leverage Ratio (G.1):(G.2): ____:1.00
4. Maximum ratio permitted under subsection 7.6B: ____:1.00
H. Fundamental Changes
1. Aggregate fair value of assets sold in any one or more Asset $_____________
Sales after Closing Date in one or more transactions permitted
under subsection 7.7(v):
2. Maximum permitted under subsection 7.7(v): $150,000,000
I. Consolidated Capital Expenditures
1. Consolidated Capital Expenditures for Fiscal Year-to-date: $_____________
2. Consolidated Gross Sales Revenues for the preceding Fiscal Year: $_____________
3. Increase of consolidated gross sales revenues for Fiscal $_____________
Year-to-Date attributable to any business acquired in an Acquisition
permitted under subsection 7.7(ii) during Fiscal Year-to-Date:
4. Decrease of consolidated gross sales revenues of business sold $_____________
during Fiscal Year-to-Date:
5. Consolidated Gross Sales Revenues Adjustment $_____________
(5% of (I.3 - I.4):
6. Carry-forward from Maximum Capital Expenditures Amount for $_____________
preceding Fiscal Year:
7. Maximum Capital Expenditures Amount for current Fiscal Year under $_____________
subsection 7.8 (5% of the sum of I.2 + I.5 + I.6):
IX-5
EXHIBIT XI
[FORM OF]
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "AGREEMENT") is entered into
by and between the parties designated as Assignor ("ASSIGNOR") and Assignee
("ASSIGNEE") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "SCHEDULE OF
TERMS") and relates to that certain Credit Agreement described in the Schedule
of Terms (said Credit Agreement, as amended, supplemented or otherwise modified
to the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "CREDIT AGREEMENT", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective upon the Settlement Date specified in Item 4 of
the Schedule of Terms (the "SETTLEMENT DATE"), Assignor hereby sells and assigns
to Assignee, without recourse, representation or warranty (except as expressly
set forth herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Credit Agreement and the other Loan Documents with respect to
Assignor's Commitments and outstanding Loans, if any, which represents, as of
the Settlement Date, the percentage interest specified in Item 3 of the Schedule
of Terms of all rights and obligations of Lenders arising under the Credit
Agreement and the other Loan Documents with respect to the Commitments and any
outstanding Loans (the "ASSIGNED SHARE"). Without limiting the generality of the
foregoing, the parties hereto hereby expressly acknowledge and agree that any
assignment of all or any portion of Assignor's rights and obligations relating
to Assignor's Revolving Loan Commitment shall include (i) in the event Assignor
is an Issuing Lender with respect to any outstanding Letters of Credit (any such
Letters of Credit being "ASSIGNOR LETTERS OF CREDIT"), the sale to Assignee of a
participation in the Assignor Letters of Credit and any drawings thereunder as
contemplated by subsection 3.1C of the Credit Agreement and (ii) the sale to
Assignee of a ratable portion of any participations previously purchased by
Assignor pursuant to said subsection 0.xX with respect to any Letters of Credit
other than the Assignor Letters of Credit.
(b) In consideration of the assignment described above,
Assignee hereby agrees to pay to Assignor, on the Settlement Date, the principal
amount of any outstanding Loans included within the Assigned Share, such payment
to be made by wire
XI-1
transfer of immediately available funds in accordance with the applicable
payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the
Schedule of Terms correctly sets forth the amount of the Commitments, the
outstanding Term Loans and the Pro Rata Share[s] corresponding to the Assigned
Share.
(d) Assignor and Assignee hereby agree that, upon giving
effect to the assignment and assumption described above, (i) Assignee shall be a
party to the Credit Agreement and shall have all of the rights and obligations
under the Loan Documents, and shall be deemed to have made all of the
representations, covenants and agreements contained in the Loan Documents,
arising out of or otherwise related to the Assigned Share, and (ii) Assignor
shall be absolutely released from any of such obligations, covenants and
agreements assumed or made by Assignee in respect of the Assigned Share.
Assignee hereby acknowledges and agrees that the agreement set forth in this
Section l(d) is expressly made for the benefit of Borrower, Administrative
Agent, Assignor and the other Lenders and their respective successors and
permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments, the outstanding Term
Loans and the Pro Rata Share[s] corresponding to the Assigned Share as set forth
in Item 3 of the Schedule of Terms or on the interest of Assignee in any
outstanding Revolving Loans corresponding thereto, and (iii) from and after the
Settlement Date, Administrative Agent shall make all payments under the Credit
Agreement in respect of the Assigned Share (including all payments of principal
and accrued but unpaid interest, commitment fees and letter of credit fees with
respect thereto) (A) in the case of any such interest and fees that shall have
accrued prior to the Settlement Date, to Assignor, and (B) in all other cases,
to Assignee; PROVIDED that Assignor and Assignee shall make payments directly to
each other to the extent necessary to effect any appropriate adjustments in any
amounts distributed to Assignor and/or Assignee by Administrative Agent under
the Loan Documents in respect of the Assigned Share in the event that, for any
reason whatsoever, the payment of consideration contemplated by Section l(b)
occurs on a date other than the Settlement Date.
SECTION 2. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor
XI-2
to Assignee or by or on behalf of Borrower or any of its Subsidiaries to
Assignor or Assignee in connection with the Loan Documents and the
transactions contemplated thereby or for the financial condition or business
affairs of Borrower or any other Person liable for the payment of any
Obligations, nor shall Assignor be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Loan Documents or as to the
use of the proceeds of the Loans or the use of the Letters of Credit or as to
the existence or possible existence of any Event of Default or Potential
Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired the Assigned Share for its own account in the
ordinary course of its business and without a view to distribution of the Loans
within the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of
subsection 10.1 of the Credit Agreement, the disposition of the Assigned Share
or any interests therein shall at all times remain within its exclusive
control); and that it has received, reviewed and approved a copy of the Credit
Agreement (including all Exhibits and Schedules thereto).
(d) Assignee represents and warrants that it has received from
Assignor such financial information regarding Borrower and its Subsidiaries as
is available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of Borrower and
its Subsidiaries in connection with the assignment evidenced by this Agreement,
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Borrower and its Subsidiaries. Assignor shall have no duty
or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the initial Loans or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to
the other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. MISCELLANEOUS.
(a) Each of Assignor and Assignee hereby agrees from time
to time, upon request of the other such party hereto, to take such additional
actions and to execute and deliver such additional documents and instruments
as such other party may
XI-3
reasonably request to effect the transactions contemplated by, and to carry
out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its consent
to or acceptance of this Agreement) against whom enforcement of such change,
waiver, discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telexed or sent by telefacsimile or United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile or
telex, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed. For the purposes hereof, the notice
address of each of Assignor and Assignee shall be as set forth on the Schedule
of Terms or, as to either such party, such other address as shall be designated
by such party in a written notice delivered to the other such party. In
addition, the notice address of Assignee set forth on the Schedule of Terms
shall serve as the initial notice address of Assignee for purposes of subsection
10.7 of the Credit Agreement.
(d) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date
(the "EFFECTIVE DATE") upon which all of the following conditions are
satisfied: (i) the
XI-4
execution of a counterpart hereof by each of Assignor and Assignee, (ii) the
execution of a counterpart hereof by Borrower and Agents as evidence of their
respective consents hereto to the extent required under subsection 10.1B(i)
of the Credit Agreement, (iii) the receipt by Administrative Agent of the
applicable processing and recordation fee referred to in subsection 10.1B(i)
of the Credit Agreement, (iv) in the event Assignee is a Non-US Lender (as
defined in subsection 2.7B(iv)(a) of the Credit Agreement), the delivery by
Assignee to Administrative Agent of such forms, certificates or other
evidence with respect to United States federal income tax withholding matters
as Assignee may be required to deliver to Administrative Agent pursuant to
said subsection 2.7B(iv)(a), (v) the execution of a counterpart hereof by
Administrative Agent as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement, (vi) the receipt by
Administrative Agent of originals or telefacsimiles of the counterparts
described above and authorization of delivery thereof, and (vii) the
recordation by Administrative Agent in the Register of the pertinent
information regarding the assignment effected hereby in accordance with
subsection 10.1B(ii) of the Credit Agreement.
[Remainder of page intentionally left blank]
XI-5
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, such execution being made as of the Effective Date
in the applicable spaces provided on the Schedule of Terms.
XI-6
SCHEDULE OF TERMS
1. BORROWER: The Boyds Collection, Ltd.
2. NAME AND DATE OF CREDIT AGREEMENT: Credit Agreement dated as of April
21, 1998 by and among The Boyds Collection, Ltd., a Maryland
corporation, the financial institutions listed therein as Lenders, DLJ
Capital Funding, Inc., as Syndication Agent, The Fuji Bank, Limited,
New York Branch, as Documentation Agent, and Fleet National Bank, as
Administrative Agent.
3. AMOUNTS:
Re: Tranche A Re: Tranche B Re: Revolving
Term Loans Term Loans Loans
------------------- ------------------ --------------------
(a) Aggregate Commitments of all Lenders: $_________ $_________ $_________
(b) Assigned Share/Pro Rata Share: _____% _____% _____%
(c) Amount of Assigned Share of Commitments $_________ $_________ $_________
(d) Amount of Assigned Share of Term: $_________ $_________ $_________
4. SETTLEMENT DATE: ______________, ____
5. PAYMENT INSTRUCTIONS:
ASSIGNOR: ASSIGNEE:
On file with ______________________
Administrative Agent ______________________
_____________________ ______________________
Attention: ___________
Reference: ___________
6. NOTICE ADDRESSES:
ASSIGNOR: ASSIGNEE:
On file with ______________________
Administrative Agent ______________________
_____________________ ______________________
Attention: ___________
Reference: ___________
7. SIGNATURES:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
Title: Title:
XI-7
[Consented and] Accepted in
accordance with subsection[s 10.1B(i)
and] 10.1B(ii) of the Credit Agreement
FLEET NATIONAL BANK,
Administrative Agent
By:
Title:
[Consented to in accordance with
subsection 10.1B(i) of the
Credit Agreement
DLJ CAPITAL FUNDING, INC.,
Syndication Agent
By:
Title:]
[Consented to in accordance with
subsection 10.1B(i) of the
Credit Agreement
THE BOYDS COLLECTION, LTD.
By:
Title:]
XI-8
EXHIBIT XII
[FORM OF]
CERTIFICATE RE NON-BANK STATUS
Reference is hereby made to that certain Credit Agreement dated as
of April 21, 1998 (said Credit Agreement, as amended, supplemented or
otherwise modified to the date hereof, being the "CREDIT AGREEMENT") by and
among The Boyds Collection, Ltd., a Maryland corporation, the financial
institutions listed therein as Lenders, DLJ Capital Funding, Inc., as
Syndication Agent, The Fuji Bank, Limited, New York Branch, as Documentation
Agent, and Fleet National Bank, as Administrative Agent. Capitalized terms
used herein without definition have the same meanings as in the Credit
Agreement. [NAME OF NON-US LENDER] ("NON-US LENDER") is providing this
certificate pursuant to subsection 2.7B(iv) of the Credit Agreement. Non-US
Lender hereby represents and warrants that:
1. Non-US Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by the Note(s) in respect of
which it is providing this certificate.
2. Non-US Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the
"CODE"). In this regard, Non-US Lender further represents and warrants
that:
(a) Non-US Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) Non-US Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any
application made to a rating agency or qualification for
any exemption from tax, securities law or other legal
requirements;
3. Non-US Lender is not a 10-percent shareholders of
Borrower within the meaning of Section 881(c)(3)(B) of the Code.
4. Non-US Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
XII-1
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-US LENDER]
By:
Name:
Title:
XII-2
EXHIBIT XIII
MASTER PLEDGE AGREEMENT
This MASTER PLEDGE AGREEMENT (this "AGREEMENT") is dated as of April
21, 1998 and entered into by and between THE BOYDS COLLECTION, LTD., a
Maryland corporation ("PLEDGOR"), and FLEET NATIONAL BANK, as agent for and
representative of (in such capacity herein called "ADMINISTRATIVE AGENT") the
financial institutions party to the Credit Agreement referred to below and
any Lenders that are Lender Counterparties (as hereinafter defined)
(collectively, the "SECURED LENDER PARTIES").
PRELIMINARY STATEMENTS
A. Pledgor is the legal and beneficial owner of the shares of
stock (the "PLEDGED SHARES") described in Part A of Schedule I annexed hereto
and issued by the corporations named therein.
B. Administrative Agent, Lenders, DLJ Capital Funding, Inc., as
Syndication Agent, and The Fuji Bank, Limited, New York Branch, as
Documentation Agent, have entered into a Credit Agreement dated as of April
21, 1998 (said Credit Agreement, as it may hereafter be amended, supplemented
or otherwise modified from time to time, being the "CREDIT AGREEMENT", the
terms defined therein and not otherwise defined herein being used herein as
therein defined) with Pledgor pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Pledgor.
C. Pledgor may from time to time enter into one or more Interest
Rate Agreements (collectively, the "LENDER INTEREST RATE AGREEMENTS") with
one or more Lenders (in such capacity, collectively, "LENDER Counterparties")
in accordance with the terms of the Credit Agreement, and it is desired that
the obligations of Pledgor under the Lender Interest Rate Agreements,
including the obligation of Pledgor to make payments thereunder in the event
of early termination thereof, together with all obligations of Pledgor under
the Credit Agreement and the other Loan Documents, be secured hereunder.
D. It is a condition precedent to the initial extensions of credit
by Lenders under the Credit Agreement that Pledgor shall have granted the
security interests and undertaken the obligations contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make Loans and other extensions of credit under the Credit
Agreement and to induce Lender Counterparties to enter into the Lender
Interest Rate Agreements,
XIII-1
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Pledgor hereby agrees with Administrative
Agent as follows: I. SECTION PLEDGE OF SECURITY. Pledgor hereby pledges and
assigns to Administrative Agent, for the benefit of the Secured Lender
Parties, and hereby grants to Administrative Agent, for the benefit of the
Secured Lender Parties, a first priority security interest in, all of
Pledgor's right, title and interest in and to the following (the "PLEDGED
COLLATERAL"):
(a) the Pledged Shares and the certificates representing
the Pledged Shares and any interest of Pledgor in the entries on the
books of any financial intermediary pertaining to the Pledged Shares,
and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of, and all securities
convertible into and warrants, options and other rights to purchase or
otherwise acquire, stock of any issuer of the Pledged Shares from time
to time acquired by Pledgor in any manner (which shares shall be deemed
to be part of the Pledged Shares), the certificates or other instruments
representing such additional shares, securities, warrants, options or
other rights and any interest of Pledgor in the entries on the books of
any financial intermediary pertaining to such additional shares, and all
dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such additional shares,
securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire,
stock of any Person that, after the date of this Agreement, becomes, as
a result of any occurrence, a direct Domestic Subsidiary or direct
Material Foreign Subsidiary of Pledgor (which shares shall be deemed to
be part of the Pledged Shares), the certificates or other instruments
representing such shares, securities, warrants, options or other rights
and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to such shares (all such shares, securities,
warrants, options, rights, certificates, instruments and interests
collectively being "NEW PLEDGED SHARES"), and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such New Pledged Shares; PROVIDED,
HOWEVER, that in the case of any such direct Material Foreign Subsidiary
of Pledgor, Pledgor shall only be required to pledge New Pledged Shares
of such Material Foreign Subsidiary possessing up to but not exceeding
65% of the voting power of all classes of Voting Stock of such Material
Foreign Subsidiary, and all dividends, cash, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such New Pledged Shares, and shall satisfy such requirement
within 30 days after such Person becoming a direct Material Foreign
Subsidiary;
XIII-2
(d) all indebtedness from time to time owed to Pledgor in
an original principal amount in excess of $5,000,000 as part of the
consideration received by Pledgor in respect of any Asset Sale (the
"PLEDGED DEBT"); and
(e) to the extent not covered by clauses (a) through (d)
above, all proceeds of any or all of the foregoing Pledged Collateral.
For purposes of this Agreement, the term "PROCEEDS" includes whatever is
receivable or received when Pledged Collateral or proceeds are sold,
exchanged, collected or otherwise disposed of, whether such disposition
is voluntary or involuntary, and includes proceeds of any indemnity or
guaranty payable to Pledgor or Administrative Agent from time to time
with respect to any of the Pledged Collateral.
I. SECTION SECURITY FOR OBLIGATIONS. In the case of the Secured Lender
Parties, this Agreement secures, and the Pledged Collateral is collateral
security for, the prompt payment or performance in full when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including the payment of amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. ss.362(a)), of all obligations and liabilities of every nature of
Pledgor now or hereafter existing under or arising out of or in connection
with the Credit Agreement and the other Loan Documents and the Lender
Interest Rate Agreements and all extensions or renewals thereof, whether for
principal, interest (including interest that, but for the filing of a
petition in bankruptcy with respect to Pledgor, would accrue on such
obligations), reimbursement of amounts drawn under Letters of Credit,
payments for early termination of Lender Interest Rate Agreements, fees,
expenses, indemnities or otherwise, whether voluntary or involuntary, direct
or indirect, absolute or contingent, liquidated or unliquidated, whether or
not jointly owed with others, and whether or not from time to time decreased
or extinguished and later increased, created or incurred, and all or any
portion of such obligations or liabilities that are paid, to the extent all
or any part of such payment is avoided or recovered directly or indirectly
from Administrative Agent or any Lender or Lender Counterparties as a
preference, fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this Agreement (all such
obligations of Pledgor being the "SECURED OBLIGATIONS").
I. SECTION DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Administrative Agent pursuant hereto
and shall be in suitable form for transfer by delivery and shall be
accompanied by Pledgor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Administrative Agent. Upon the occurrence and during the
continuance of an Event of Default, (i) Administrative Agent shall have the
right, without notice to Pledgor, to transfer to or to register in the name
of Administrative Agent or any of its nominees any or all of the Pledged
Collateral, subject only to the revocable rights specified in Section 7(a),
and (ii) Administrative Agent shall have the right to exchange certificates
or instruments representing or evidencing Pledged Collateral for certificates
or instruments of smaller or larger denominations.
XIII-3
I. SECTION REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED SHARES. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
(b) DESCRIPTION OF PLEDGED SHARES. Except as set forth in SCHEDULE
II annexed hereto, the Pledged Shares constitute all of the issued and
outstanding shares of stock of each issuer thereof and there are no
outstanding warrants, options or other rights to purchase, or other
agreements outstanding with respect to, or property that is now or hereafter
convertible into, or that requires the issuance or sale of, any Pledged
Shares.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the legal, record
and beneficial owner of the Pledged Collateral free and clear of any Lien
except for the security interest created by this Agreement.
I. SECTION TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL;
ETC. Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement
(including pursuant to any transaction permitted by the Credit Agreement),
(i) sell, assign (by operation of law or otherwise) or otherwise dispose of,
or grant any option with respect to, any of the Pledged Collateral, (ii)
create or suffer to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest under this Agreement, or (iii)
permit any issuer of Pledged Shares to merge or consolidate unless all the
outstanding capital stock of the surviving or resulting corporation is, upon
such merger or consolidation, pledged hereunder and no cash, securities or
other property is distributed in respect of the outstanding shares of any
other constituent corporation; PROVIDED that if the surviving or resulting
corporation upon any such merger or consolidation involving an issuer of
Pledged Shares which is a direct Material Foreign Subsidiary is a direct
Material Foreign Subsidiary, then Pledgor shall only be required to pledge
outstanding capital stock of such surviving or resulting corporation
possessing up to but not exceeding 65% of the voting power of all classes of
Voting Stock of such Material Foreign Subsidiary; PROVIDED, FURTHER that, in
the event Pledgor makes an Asset Sale permitted by the Credit Agreement and
the assets subject to such Asset Sale are Pledged Shares, Administrative
Agent shall release the Pledged Shares that are the subject of such Asset
Sale to Pledgor free and clear of the lien and security interest under this
Agreement concurrently with the consummation of such Asset Sale; PROVIDED,
FURTHER that the Net Asset Sale Proceeds of such Asset Sale shall be applied
as set forth in the Credit Agreement;
(b) (i) cause each issuer of Pledged Shares not to issue any stock
or other equity securities in addition to or in substitution for the Pledged
Shares issued by such issuer, except to Pledgor and except pursuant to any
transaction permitted by the Credit Agreement, (ii) pledge hereunder,
immediately upon its acquisition thereof, any
XIII-4
and all additional shares of stock or other equity securities of each issuer of
Pledged Shares and (iii) to the extent required under the Credit Agreement,
pledge hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all shares of stock of any Person that, after the date of this
Agreement, becomes, as a result of any occurrence, a direct Domestic Subsidiary
or direct Material Foreign Subsidiary of Pledgor; PROVIDED that, notwithstanding
anything contained in this subdivision (b), Pledgor shall only be required to
pledge the outstanding capital stock of a direct Material Foreign Subsidiary
possessing up to but not exceeding 65% of the voting power of all classes of
Voting Stock of such Material Foreign Subsidiary;
(c) pledge hereunder, immediately upon their issuance, any and all
instruments or other evidence of indebtedness in an original principal amount
in excess of $5,000,000 from time to time owed to Pledgor as part of the
consideration received by Pledgor in respect of any Asset Sale; and
(d) promptly deliver to Administrative Agent all written notices of
redemption, repurchase or other defeasance received by it with respect to the
Pledged Collateral.
I. SECTION FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the expense of
Pledgor, Pledgor will promptly execute and deliver all further instruments
and documents, and take all further action, that may be reasonably necessary
or desirable, or that Administrative Agent may reasonably request, in order
to perfect and protect any security interest granted or purported to be
granted hereby or to enable Administrative Agent to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral. Without
limiting the generality of the foregoing, Pledgor will: (i) execute and file
such financing or continuation statements, or amendments thereto, and such
other instruments or notices, as may be necessary or desirable, or as
Administrative Agent may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby and (ii) at
Administrative Agent's reasonable request, appear in and defend any action or
proceeding that may affect Pledgor's title to or Administrative Agent's
security interest in all or any part of the Pledged Collateral and (iii)
execute and deliver from time to time such agreements or instruments under
the laws of a country in which any Material Foreign Subsidiary is organized
that Administrative Agent deems necessary or advisable, or that
Administrative Agent may reasonably request, to perfect or otherwise protect
the priority of the Liens granted to Administrative Agent on behalf of the
Secured Lender Parties in the stock of such Material Foreign Subsidiary and
take all such other actions under the laws of such jurisdictions as
Administrative Agent may deem necessary or advisable, or that Administrative
Agent may reasonably request, to perfect or otherwise protect such Liens.
(b) Pledgor further agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged
hereunder as provided in Section 5(b) or (c), promptly (and in any event
within five Business Days) deliver to Administrative Agent a Pledge
Amendment, duly executed by Pledgor, in substantially
XIII-5
the form of SCHEDULE III annexed hereto (a "PLEDGE AMENDMENT"), in respect of
the additional Pledged Shares or Pledged Debt to be pledged pursuant to this
Agreement. Pledgor hereby authorizes Administrative Agent to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Shares and
Pledged Debt listed on any Pledge Amendment delivered to Administrative Agent
shall for all purposes hereunder be considered Pledged Collateral; PROVIDED
that the failure of Pledgor to execute a Pledge Amendment with respect to any
additional Pledged Shares or Pledged Debt pledged pursuant to this Agreement
shall not impair the security interest of Administrative Agent therein or
otherwise adversely affect the rights and remedies of Administrative Agent
hereunder with respect thereto.
I. SECTION VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof for any purpose not
prohibited by the terms of this Agreement or the Credit
Agreement;
(ii) Pledgor shall be entitled to receive and retain,
and to utilize free and clear of the lien of this
Agreement, any and all dividends, interest, principal and
other distributions paid in respect of the Pledged
Collateral to the extent payment thereof is not prohibited
by the terms of the Credit Agreement; PROVIDED, HOWEVER,
that any and all dividends of equity Securities of any
issuer included in the Pledged Collateral or Pledged Shares
shall be, and shall forthwith be, to the extent required
under the Credit Agreement, delivered to Administrative
Agent to hold as, Pledged Collateral and shall, if received
by Pledgor, be received in trust for the benefit of
Administrative Agent, be segregated from the other property
or funds of Pledgor and be forthwith delivered to
Administrative Agent as Pledged Collateral in the same form
as so received (with all necessary indorsements); and
(iii) Administrative Agent shall promptly execute and
deliver (or cause to be executed and delivered) to Pledgor
all such proxies, dividend payment orders and other
instruments as Pledgor may from time to time reasonably
request for the purpose of enabling Pledgor to exercise the
voting and other consensual rights which it is entitled to
exercise pursuant to paragraph (i) above and to receive the
dividends, principal or interest payments and other
distributions which it is authorized to receive and retain
pursuant to paragraph (ii) above.
XIII-6
(b) Upon the occurrence and during the continuation of
an Event of Default and written notice from Administrative Agent to
Pledgor of its election that the following become effective:
(i) upon written notice from Administrative Agent to
Pledgor, all rights of Pledgor to exercise the voting and
other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 7(a)(i) shall
cease, and all such rights shall thereupon become vested in
Administrative Agent who shall thereupon have the sole
right to exercise such voting and other consensual rights;
(ii) all rights of Pledgor to receive the dividends
and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section
7(a)(ii) shall cease, and all such rights shall thereupon
become vested in Administrative Agent who shall thereupon
have the sole right to receive and hold as Pledged
Collateral such dividends; and
(iii) all dividends, principal and interest payments
which are received by Pledgor contrary to the provisions of
paragraph (ii) of this Section 7(b) shall be received in
trust for the benefit of Administrative Agent, shall be
segregated from other funds of Pledgor and shall forthwith
be paid over to Administrative Agent as Pledged Collateral
in the same form as so received (with any necessary
indorsements).
(c) In order to permit Administrative Agent to exercise the
voting and other consensual rights which it may be entitled to exercise
pursuant to Section 7(b)(i) and to receive all dividends and other
distributions which it may be entitled to receive under Section 7(a)(ii)
or Section 7(b)(ii), (i) Pledgor shall, upon written notice from
Administrative Agent, promptly execute and deliver (or cause to be
executed and delivered) to Administrative Agent all such proxies,
dividend payment orders and other instruments as Administrative Agent
may from time to time reasonably request, including to the extent
necessary so that the pledge hereunder of any shares of stock of any
Material Foreign Subsidiary is registered (if not already so registered)
on the appropriate books and records of such Material Foreign Subsidiary
if such registration is required under applicable law in order to permit
Administrative Agent to exercise such rights or to receive such
dividends and other distributions.
I. SECTION ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Administrative Agent as Pledgor's attorney-in-fact, with
full authority in the place and stead of Pledgor and in the name of Pledgor,
Administrative Agent or otherwise, from time to time upon the occurrence and
during the continuation of an Event of Default, to take any action and to
execute any instrument that Administrative Agent may reasonably deem necessary
or advisable to accomplish the purposes of this Agreement, including:
XIII-7
(a) to file one or more financing or continuation statements, or
amendments thereto, relative to all or any part of the Pledged Collateral
without the signature of Pledgor;
(b) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or
in respect of any of the Pledged Collateral;
(c) to receive, endorse and collect any instruments made payable to
Pledgor representing any dividend or other distribution in respect of the
Pledged Collateral or any part thereof and to give full discharge for the
same; and
(d) to file any claims or take any action or institute any
proceedings that Administrative Agent may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the
rights of Administrative Agent with respect to any of the Pledged Collateral.
I. SECTION ADMINISTRATIVE AGENT MAY PERFORM. If Pledgor fails to
perform any agreement contained herein, Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of
Administrative Agent incurred in connection therewith shall be payable by
Pledgor under subsection 10.2 of the Credit Agreement.
I. SECTION STANDARD OF CARE. The powers conferred on Administrative
Agent hereunder are solely to protect its interest in the Pledged Collateral
and shall not impose any duty upon it to exercise any such powers. Except for
the exercise of reasonable care in the custody of any Pledged Collateral in
its possession and the accounting for moneys actually received by it
hereunder, Administrative Agent shall have no duty as to any Pledged
Collateral, it being understood that Administrative Agent shall have no
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not Administrative Agent has or is deemed to
have knowledge of such matters, (b) taking any necessary steps (other than
steps taken in accordance with the standard of care set forth above to
maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary
steps to collect or realize upon the Secured Obligations or any guarantee
therefor, or any part thereof, or any of the Pledged Collateral, or (d)
initiating any action to protect the Pledged Collateral against the
possibility of a decline in market value. Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which Administrative Agent accords its
own property consisting of negotiable securities.
I. SECTION REMEDIES.
XIII-8
(a) If any Event of Default shall have occurred and be continuing,
Administrative Agent may exercise in respect of the Pledged Collateral in
addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies which it may have as a secured
party on default under the Uniform Commercial Code as in effect in any
relevant jurisdiction (the "CODE") (whether or not the Code applies to the
affected Pledged Collateral) or under any other applicable laws, whether of
the United States or of any state thereof or of any foreign jurisdiction, and
Administrative Agent may also in its sole discretion, without notice except
as specified below, sell such Pledged Collateral or any part thereof in one
or more parcels at public or private sale, at any exchange or broker's board
or at any of Administrative Agent's offices or elsewhere, for cash, on credit
or for future delivery, at such time or times and at such price or prices and
upon such other terms as Administrative Agent may deem commercially
reasonable, irrespective of the impact of any such sales on the market price
of such Pledged Collateral. Administrative Agent or any Lender or Lender
Counterparty may be the purchaser of any or all of such Pledged Collateral at
any such sale and Administrative Agent, as agent for and representative of
Lenders and Lender Counterparties (but not any Lender or Lenders or Lender
Counterparties in its or their respective individual capacities unless
Requisite Obligees (as defined in Section 14(a)) shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of such Pledged
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations then owing to it as a credit on account of the purchase price for
such Pledged Collateral payable by Administrative Agent at such sale. Each
purchaser at any such sale shall hold the property sold absolutely free from
any claim or right on the part of Pledgor, and Pledgor hereby waives (to the
extent permitted by applicable law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. Pledgor agrees
that, to the extent notice of sale shall be required by law, at least ten
days' notice to Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Administrative Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given.
Administrative Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Pledgor hereby waives any claims against Administrative Agent
arising by reason of the fact that the price at which any Pledged Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if Administrative Agent accepts the
first offer received and does not offer such Pledged Collateral to more than
one offeree. If the proceeds of any sale or other disposition of the Pledged
Collateral are insufficient to pay all the Secured Obligations, Pledgor shall
be liable for the deficiency and the fees of any attorneys employed by
Administrative Agent to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws,
Administrative Agent may be compelled, with respect to any sale of all or any
part of the Pledged Collateral conducted
XIII-9
without prior registration or qualification of such Pledged Collateral under
the Securities Act and/or such state securities laws, to limit purchasers to
those who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution
or resale thereof. Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable than those obtainable through a public
sale without such restrictions (including a public offering made pursuant to
a registration statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall not, by virtue
thereof, result in such sale being deemed to have been made in a commercially
unreasonable manner and that Administrative Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Pledged
Collateral for the period of time necessary to permit the issuer thereof to
register it for a form of public sale requiring registration under the
Securities Act or under applicable state securities laws, even if such issuer
would, or should, agree to so register it.
(c) If Administrative Agent determines to exercise its right to
sell any or all of the Pledged Collateral, upon written request, Pledgor
shall and shall cause each issuer of any Pledged Shares to be sold hereunder
from time to time to furnish to Administrative Agent all such information as
Administrative Agent may request in order to determine the number of shares
and other instruments included in the Pledged Collateral which may be sold by
Administrative Agent in exempt transactions under the Securities Act and the
rules and regulations of the Securities and Exchange Commission thereunder,
as the same are from time to time in effect.
I. SECTION APPLICATION OF PROCEEDS. All proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral shall be applied
as provided in subsection 2.4D of the Credit Agreement.
I. SECTION CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This
Agreement shall create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect until the payment in
full of all Secured Obligations under the Credit Agreement, the cancellation
or termination of the Commitments and the cancellation or expiration of all
outstanding Letters of Credit, (b) be binding upon Pledgor, its successors
and assigns, and (c) inure, together with the rights and remedies of
Administrative Agent hereunder, to the benefit of Administrative Agent and
its successors, transferees and assigns; PROVIDED that upon a release of any
Pledged Collateral in accordance with the terms of the Credit Agreement, the
security interest created hereby in and with respect to such released Pledged
Collateral shall terminate. Without limiting the generality of the foregoing
clause (c), but subject to the provisions of subsection 10.1 of the Credit
Agreement, any Lender may assign or otherwise transfer any Loans held by it
to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations under the Credit
Agreement, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, the security
interest granted hereby shall terminate and all
XIII-10
rights to the Pledged Collateral shall revert to Pledgor. Upon any such
termination Administrative Agent will, at Pledgor's expense, execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the return, upon
its request and at its expense, against receipt and without recourse to
Administrative Agent, of such of the Pledged Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof.
I. SECTION ADMINISTRATIVE AGENT AS ADMINISTRATIVE AGENT.
(a) Administrative Agent has been appointed to act as
Administrative Agent hereunder by Lenders and, by their acceptance of the
benefits hereof, Lender Counterparties. Administrative Agent shall be
obligated, and shall have the right hereunder, to make demands, to give
notices, to exercise or refrain from exercising any rights, and to take or
refrain from taking any action (including the release or substitution of
Pledged Collateral), solely in accordance with this Agreement and the Credit
Agreement; PROVIDED that Administrative Agent shall exercise, or refrain from
exercising, any remedies provided for in Section 11 in accordance with the
instructions of Requisite Lenders. In furtherance of the foregoing provisions
of this Section 14(a), each Lender Counterparty, by its acceptance of the
benefits hereof, agrees that it shall have no right individually to realize
upon any of the Pledged Collateral hereunder, it being understood and agreed
by such Lender Counterparty that all rights and remedies hereunder may be
exercised solely by Administrative Agent for the benefit of Lenders and
Lender Counterparties in accordance with the terms of this Section 14(a).
(b) Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Administrative Agent under this Agreement; removal of
Administrative Agent pursuant to subsection 9.5 of the Credit Agreement shall
also constitute removal as Administrative Agent under this Agreement; and
appointment of a successor Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute appointment of a successor
Administrative Agent under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the Credit
Agreement by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent
under this Agreement, and the retiring or removed Administrative Agent under
this Agreement shall promptly (i) transfer to such successor Administrative
Agent all sums, securities and other items of Pledged Collateral held
hereunder, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Administrative Agent under this Agreement, and (ii) execute and deliver to
such successor Administrative Agent such amendments to financing statements,
and take such other actions, as may be necessary or appropriate in connection
with the assignment to such successor Administrative Agent of the security
interests created hereunder, whereupon such retiring or removed
Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of
this Agreement shall
XIII-11
inure to its benefit as to any actions taken or omitted to be taken by it
under this Agreement while it was Administrative Agent hereunder.
I. SECTION AMENDMENTS; ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be
in writing and signed by Administrative Agent and, in the case of any such
amendment or modification, by Pledgor. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which it was given.
I. SECTION NOTICES. Any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served,
telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier
service, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed. For the purposes hereof, the address of each party hereto shall be
as provided in subsection 10.7 of the Credit Agreement.
I. SECTION SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
I. SECTION HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
I. SECTION GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO
THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. Unless otherwise defined herein or in the Credit
Agreement, terms used in Articles 8 and 9 of the Uniform Commercial Code in
the State of New York are used herein as therein defined.
I. SECTION COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages
XIII-12
may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
I. SECTION CONSENT TO JURISDICTION AND SERVICE OF PROCESS. In addition
(and without prejudice) to the agreements of Pledgor contained in subsection
10.16 of the Credit Agreement, Pledgor hereby agrees that any judicial
proceeding brought against Pledgor arising out of or relating to the pledge
of any shares of stock of any Material Foreign Subsidiary hereunder may be
brought in any court of competent jurisdiction in the jurisdiction in which
such Foreign Subsidiary is organized and, by execution and delivery of this
Agreement, Pledgor accepts for itself and in connection with its properties
(including the applicable Pledged Shares), generally and unconditionally, the
nonexclusive jurisdiction of any such court and waives any defense of forum
non conveniens (or any similar defense under the laws of such jurisdiction)
and irrevocably agrees to be bound by any judgment rendered thereby in
connection with such pledge or the enforcement thereof.
[Remainder of page intentionally left blank]
XIII-13
IN WITNESS WHEREOF, Pledgor and Administrative Agent have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
THE BOYDS COLLECTION, LTD.
By:_____________________________
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By:_____________________________
Name:
Title:
XIII-14
SCHEDULE I
Attached to and forming a part of the Pledge Agreement dated as of
April 21, 1998 between The Boyds Collection, Ltd., as Pledgor, and Fleet
National Bank, as Administrative Agent.
Class of Stock Par Number of
Stock Issuer Stock Certificate Nos. Value Shares
------------ -------- ---------------- ----- ---------
SCHEDULE II
Attached to and forming a part of the Pledge Agreement dated as of
April 21, 1998 between The Boyds Collection, Ltd., as Pledgor, and Fleet
National Bank, as Administrative Agent.
Number of Percentage Holders
Shares Issued Represented of Shares
Stock Issuer and Outstanding by Pledged Shares Not Pledged
------------ --------------- ----------------- -----------
SCHEDULE III
PLEDGE AMENDMENT
This Pledge Amendment, dated _________ __, ___, is delivered
pursuant to Section 6(b) of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Pledge Agreement dated April 21, 1998, between the undersigned and Fleet
National Bank, as Administrative Agent (the "PLEDGE AGREEMENT," capitalized
terms defined therein being used herein as therein defined), and that the
Pledged Shares listed on this Pledge Amendment shall be deemed to be part of
the Pledged Shares and shall become part of the Pledged Collateral and shall
secure all Secured Obligations.
THE BOYDS COLLECTION, LTD.
By:
------------------------------
Name:
Title:
Percentage Represented
Number of by Pledged Shares
Shares pledged pursuant to the
Class of Stock Par Number of Issued and Master Pledge Agreement Debt Amount of
Stock Issuer Stock Certificate Nos. Value Shares Outstanding and all Pledge Amendments Issuer Indebtedness
------------ -------- ---------------- ----- --------- ----------- ------------------------- ------ ------------
EXHIBIT XIV
[FORM OF]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of April 21, 1998 by THE
UNDERSIGNED (each a "GUARANTOR" and collectively, "GUARANTORS") in favor of and
for the benefit of FLEET NATIONAL BANK, as agent for and representative of (in
such capacity herein called "GUARANTIED PARTY") the financial institutions
("LENDERS") party to the Credit Agreement referred to below and any Lender
Counterparties (as hereinafter defined), and, subject to subsection 3.13, for
the benefit of the other Beneficiaries (as hereinafter defined).
RECITALS
A. The Boyds Collection, Ltd., a Maryland corporation ("BORROWER"), has
entered into that certain Credit Agreement dated as of April 21, 1998 with
Guarantied Party, Lenders, DLJ Capital Funding, Inc., as Syndication Agent, and
The Fuji Bank, Limited, New York Branch, as Documentation Agent (said Credit
Agreement, as it may hereafter be amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT"; capitalized terms defined
therein and not otherwise defined herein being used herein as therein defined).
B. Borrower may from time to time enter, or may from time to time have
entered, into one or more Interest Rate Agreements (collectively, the "LENDER
INTEREST RATE AGREEMENTS") with or one or more Lenders (in such capacity,
collectively, "LENDER COUNTERPARTIES") in accordance with the terms of the
Credit Agreement, and it is desired that the obligations of Borrower under the
Lender Interest Rate Agreements, including the obligation of Borrower to make
payments thereunder in the event of early termination thereof (all such
obligations being the "INTEREST RATE OBLIGATIONS"), together with all
obligations of Borrower under the Credit Agreement and the other Loan Documents,
be guarantied hereunder.
C. A portion of the proceeds of the Loans made to Borrower, may be
advanced to Guarantors and thus the Guarantied Obligations (as hereinafter
defined) are being incurred for and will inure to the benefit of Guarantors
(which benefits are hereby acknowledged).
D. It is a condition precedent to the making of the initial Loans
under the Credit Agreement that Borrower's obligations thereunder be
guarantied by Guarantors.
E. Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of Borrower.
XIV-
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lenders and Guarantied Party to enter into the Credit
Agreement and to make Loans and other extensions of credit thereunder and to
induce Lender Counterparties to enter into the Lender Interest Rate Agreements,
Guarantors hereby agree as follows:
I. SECTION DEFINITIONS
A. CERTAIN DEFINED TERMS. As used in this Guaranty, the following
terms shall have the following meanings unless the context otherwise requires:
"BENEFICIARIES" means Guarantied Party, Lenders and any Lender
Counterparties.
"GUARANTIED OBLIGATIONS" has the meaning assigned to that term in
subsection 2.l.
"GUARANTY" means this Subsidiary Guaranty dated as of April 21,
1998, as it may be amended, supplemented or otherwise modified from
time to time.
"PAYMENT IN FULL", "PAID IN FULL" or any similar term means
payment in full of the Guarantied Obligations, including all principal,
interest, costs, fees and expenses (including reasonable legal fees and
expenses) of Beneficiaries as required under the Loan Documents and the
Lender Interest Rate Agreements.
B. INTERPRETATION.
1. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Guaranty unless otherwise specifically
provided.
2. In the event of any conflict or inconsistency between the terms,
conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of
this Guaranty shall prevail.
I. SECTION THE GUARANTY
A. GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to the provisions
of subsection 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty the due and punctual payment in full of all
Guarantied Obligations when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.
362(a) or any provision of foreign law having similar effect). The term
"GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and
includes:
XIV-2
1. any and all Obligations of the Loan Parties and any and all
Interest Rate Obligations, in each case now or hereafter made, incurred or
created, whether absolute or contingent, liquidated or unliquidated, whether
due or not due, and however arising under or in connection with the Credit
Agreement and the other Loan Documents and the Lender Interest Rate
Agreements, including those arising under successive borrowing transactions
under the Credit Agreement which shall either continue the Obligations of the
Loan Parties or from time to time renew them after they have been satisfied
and including interest which, but for the filing of a petition in bankruptcy
with respect to any Loan Party, would have accrued on any Guarantied
Obligations, whether or not a claim is allowed against such Loan Party for
such interest in the related bankruptcy proceeding under domestic or foreign
law; and
2. those expenses set forth in subsection 2.7 hereof.
B. LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY GUARANTORS.
1. Anything contained in this Guaranty to the contrary
notwithstanding, if any Fraudulent Transfer Law (as hereinafter defined) is
determined by a court of competent jurisdiction to be applicable to the
obligations of any Guarantor under this Guaranty, such obligations of such
Guarantor hereunder shall be limited to a maximum aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title
11 of the United States Code or any applicable provisions of comparable state
law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving
effect to all other liabilities of such Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liabilities of such Guarantor (x) in respect of intercompany
indebtedness to Borrower or other affiliates of Borrower to the extent that
such indebtedness would be discharged in an amount equal to the amount paid
by such Guarantor hereunder and (y) under any guaranty of Subordinated
Indebtedness which guaranty contains a limitation as to maximum amount
similar to that set forth in this subsection 2.2(a), pursuant to which the
liability of such Guarantor hereunder is included in the liabilities taken
into account in determining such maximum amount) and after giving effect as
assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Guarantor pursuant to applicable law
or pursuant to the terms of any agreement (including any such right of
contribution under subsection 2.2(b)).
2. Guarantors under this Guaranty and each guarantor under other
guaranties, if any, of the Obligations related to the Credit Agreement (the
"RELATED GUARANTIES") which contain a contribution provision similar to that
set forth in this subsection 2.2(b), together desire to allocate among
themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Guaranty and the
Related Guaranties. Accordingly, in the event any payment
XIV-3
or distribution is made on any date by any Guarantor under this Guaranty or a
guarantor under a Related Guaranty (a "FUNDING GUARANTOR") that exceeds its
Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Contributing Guarantors
in the amount of such other Contributing Guarantor's Fair Share Shortfall (as
defined below) as of such date, with the result that all such contributions
will cause each Contributing Guarantor's Aggregate Payments (as defined
below) to equal its Fair Share as of such date. "FAIR SHARE" means, with
respect to a Guarantor as of any date of determination, an amount equal to
(i) the ratio of (x) the Adjusted Maximum Amount (as defined below) with
respect to such Guarantor to (y) the aggregate of the Adjusted Maximum
Amounts with respect to all Guarantors MULTIPLIED BY (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "FAIR SHARE
SHORTFALL" means, with respect to a Contributing Guarantor as of any date of
determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor.
"ADJUSTED MAXIMUM AMOUNT" means, with respect to a Contributing Guarantor as
of any date of determination, the maximum aggregate amount of the obligations
of such Contributing Guarantor under this Guaranty and the Related Guaranties
determined as of such date in accordance with subsection 2.2(a); PROVIDED
that, solely for purposes of calculating the "Adjusted Maximum Amount" with
respect to any Contributing Guarantor for purposes of this subsection 2.2(b),
any assets or liabilities of such Contributing Guarantor arising by virtue of
any rights to subrogation, reimbursement or indemnification or any rights to
or obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. "AGGREGATE PAYMENTS" means, with
respect to a Contributing Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions
made on or before such date by such Contributing Guarantor in respect of this
Guaranty and the Related Guaranties (including in respect of this subsection
2.2(b) or any similar provision contained in a Related Guaranty) MINUS (ii)
the aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as
contributions under this subsection 2.2(b) or any similar provision contained
in a Related Guaranty. The amounts payable as contributions hereunder and
under similar provisions in the Related Guaranties shall be determined as of
the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of
their obligations as set forth in this subsection 2.2(b) shall not be
construed in any way to limit the liability of any Contributing Guarantor
hereunder or under a Related Guaranty. Each Contributing Guarantor under a
Related Guaranty is a third party beneficiary to the contribution agreement
set forth in this subsection 2.2(b).
C. PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other
right which any Beneficiary may have at law or in equity against any
Guarantor by virtue hereof, that upon the failure of Borrower to pay any of
the Guarantied Obligations when and as the same shall become due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the
XIV-4
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. Section 362(a) or other provision of foreign law having similar
effect), Guarantors will upon demand pay, or cause to be paid, in cash, to
Guarantied Party for the ratable benefit of Beneficiaries, an amount equal to
the sum of the unpaid principal amount of all Guarantied Obligations then due
as aforesaid, accrued and unpaid interest on such Guarantied Obligations
(including interest which, but for the filing of a petition in bankruptcy
with respect to Borrower, would have accrued on such Guarantied Obligations,
whether or not a claim is allowed against Borrower for such interest in the
related bankruptcy proceeding) and all other Guarantied Obligations then owed
to Beneficiaries as aforesaid. All such payments shall be applied promptly
from time to time by Guarantied Party as provided in subsection 2.4D of the
Credit Agreement.
D. LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes
a legal or equitable discharge of a guarantor or surety other than payment in
full of the Guarantied Obligations. In furtherance of the foregoing and
without limiting the generality thereof, each Guarantor agrees as follows:
1. This Guaranty is a guaranty of payment when due and not of
collectibility.
2. Guarantied Party may enforce this Guaranty upon the occurrence of
an Event of Default notwithstanding the existence of any dispute between
Borrower and any Beneficiary with respect to the existence of such Event of
Default.
3. The obligations of each Guarantor hereunder are independent of
the obligations of Borrower under the Loan Documents or the Lender Interest
Rate Agreements and the obligations of any other guarantor (including any
other Guarantor) of the obligations of Borrower under the Loan Documents or
the Lender Interest Rate Agreements, and a separate action or actions may be
brought and prosecuted against such Guarantor whether or not any action is
brought against Borrower or any of such other guarantors and whether or not
Borrower is joined in any such action or actions.
4. Payment by any Guarantor of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guarantied Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Guarantied Party is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guarantied Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to
pay the portion of the Guarantied Obligations that is not the subject of such
suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor's liability
hereunder in respect of the Guarantied Obligations.
XIV-5
6. Any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of this
Guaranty or giving rise to any reduction, limitation, impairment, discharge
or termination of any Guarantor's liability hereunder, from time to time may
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (ii) settle, compromise, release or discharge, or accept or
refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii)
request and accept other guaranties of the Guarantied Obligations and take
and hold security for the payment of this Guaranty or the Guarantied
Obligations; (iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or without
consideration, any security for payment of the Guarantied Obligations, any
other guaranties of the Guarantied Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guarantied
Obligations; (v) enforce and apply any security now or hereafter held by or
for the benefit of such Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may
determine consistent with the Credit Agreement or the applicable Lender
Interest Rate Agreement and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of any Guarantor against Borrower or any security for the Guarantied
Obligations; and (vi) exercise any other rights available to it under the
Loan Documents or the Lender Interest Rate Agreements.
7. This Guaranty and the obligations of Guarantors hereunder shall
be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
payment in full of the Guarantied Obligations), including the occurrence of
any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Loan Documents or the Lender Interest Rate Agreements, at
law, in equity or otherwise) with respect to the Guarantied Obligations or
any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guarantied Obligations; (ii) any rescission,
waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including provisions relating to events of
default) of the Credit Agreement, any of the other Loan Documents, any of the
Lender Interest Rate Agreements, or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guarantied
Obligations, in each case whether or not in accordance with the terms of the
Credit Agreement, such Loan Document, such Lender Interest Rate Agreement, or
any agreement relating to such other guaranty or
XIV-6
security; (iii) the Guarantied Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in
any respect; (iv) the application of payments received from any source (other
than payments received pursuant to the other Loan Documents or any of the
Lender Interest Rate Agreements or from the proceeds of any security for the
Guarantied Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guarantied Obligations) to the
payment of indebtedness other than the Guarantied Obligations, even though
any Beneficiary might have elected to apply such payment to any part or all
of the Guarantied Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of
Borrower or any of its Subsidiaries and to any corresponding restructuring of
the Guarantied Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the
Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which
Borrower may allege or assert against any Beneficiary in respect of the
Guarantied Obligations, including failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to
any extent vary the risk of any Guarantor as an obligor in respect of the
Guarantied Obligations.
E. WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the
benefit of Beneficiaries:
1. any right to require any Beneficiary, as a condition of payment
or performance by such Guarantor, to (i) proceed against Borrower, any other
guarantor (including any other Guarantor) of the Guarantied Obligations or
any other Person, (ii) proceed against or exhaust any security held from
Borrower, any such other guarantor or any other Person, (iii) proceed against
or have resort to any balance of any deposit account or credit on the books
of any Beneficiary in favor of Borrower or any other Person, or (iv) pursue
any other remedy in the power of any Beneficiary whatsoever;
2. any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Borrower (other than payment
in full of the Guarantied Obligations) including any defense based on or
arising out of the lack of validity or the unenforceability of the Guarantied
Obligations or any agreement or instrument relating thereto or by reason of
the cessation of the liability of Borrower from any cause other than payment
in full of the Guarantied Obligations;
3. any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
4. any defense based upon any Beneficiary's errors or omissions in
the administration of the Guarantied Obligations, except behavior which
amounts to bad faith;
XIV-7
5. (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty and any
legal or equitable discharge of such Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
6. notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default under the Credit Agreement,
the Lender Interest Rate Agreements or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Guarantied
Obligations or any agreement related thereto, notices of any extension of
credit to Borrower and notices of any of the matters referred to in
subsection 2.4 and any right to consent to any thereof; and
7. any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of this Guaranty.
F. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until the
Guarantied Obligations shall have been indefeasibly paid in full and the
Commitments shall have terminated and all Letters of Credit shall have
expired or been canceled, each Guarantor hereby waives any claim, right or
remedy, direct or indirect, that such Guarantor now has or may hereafter have
against Borrower or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including (a) any right of
subrogation, reimbursement or indemnification that such Guarantor now has or
may hereafter have against Borrower, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or
may hereafter have against Borrower, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guarantied Obligations shall have been
indefeasibly paid in full and the Commitments shall have terminated and all
Letters of Credit shall have expired or been canceled, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have
against any other guarantor (including any other Guarantor) of the Guarantied
Obligations (including any such right of contribution under subsection 2.2(b)
or under a Related Guaranty as contemplated by subsection 2.2(b)). Each
Guarantor further agrees that, to the extent the waiver or agreement to
withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Borrower or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall
be junior and subordinate to any rights any Beneficiary may have against
Borrower, to all right, title and interest any Beneficiary may have in
XIV-8
any such collateral or security, and to any right any Beneficiary may have
against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or
contribution rights at any time when all Guarantied Obligations shall not
have been paid in full, such amount shall be held in trust for Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to
Guarantied Party for the benefit of Beneficiaries to be credited and applied
against the Guarantied Obligations, whether matured or unmatured, in
accordance with the terms hereof.
G. EXPENSES. Guarantors jointly and severally agree to pay, or
cause to be paid, on demand, and to save Beneficiaries harmless against
liability for, any and all costs and expenses (including fees and
disbursements of counsel and allocated costs of internal counsel) incurred or
expended by any Beneficiary in connection with the enforcement of or
preservation of any rights under this Guaranty.
H. CONTINUING GUARANTY. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guarantied Obligations shall have
been paid in full and the Commitments shall have terminated and all Letters
of Credit shall have expired or been cancelled. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future
transactions giving rise to any Guarantied Obligations.
I. AUTHORITY OF GUARANTORS OR BORROWER. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or
Borrower or the officers, directors or any agents acting or purporting to act
on behalf of any of them.
J. FINANCIAL CONDITION OF BORROWER. Any Loans may be granted to
Borrower or continued from time to time, and any Lender Interest Rate
Agreements may be entered into from time to time, in each case without notice
to or authorization from any Guarantor regardless of the financial or other
condition of Borrower at the time of any such grant or continuation or at the
time such Lender Interest Rate Agreement is entered into, as the case may be.
No Beneficiary shall have any obligation to disclose or discuss with any
Guarantor its assessment, or any Guarantor's assessment, of the financial
condition of Borrower. Each Guarantor has adequate means to obtain
information from Borrower on a continuing basis concerning the financial
condition of Borrower and its ability to perform its obligations under the
Loan Documents and the Lender Interest Rate Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial
condition of Borrower and of all circumstances bearing upon the risk of
nonpayment of the Guarantied Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any Beneficiary to disclose any matter,
fact or thing relating to the business, operations or conditions of Borrower
now known or hereafter known by any Beneficiary.
K. RIGHTS CUMULATIVE. The rights, powers and remedies given to
Beneficiaries by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiaries by
virtue of any statute or rule of law or in any of the other Loan Documents,
any of the Lender Interest Rate Agreements
XIV-9
or any agreement between any Guarantor and any Beneficiary or Beneficiaries
or between Borrower and any Beneficiary or Beneficiaries. Any forbearance or
failure to exercise, and any delay by any Beneficiary in exercising, any
right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.
L. BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY.
(a) So long as any Guarantied Obligations remain outstanding, no Guarantor
shall, without the prior written consent of Guarantied Party acting pursuant
to the instructions of Requisite Obligees (as defined in subsection 3.13),
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency proceedings of or against Borrower. The
obligations of Guarantors under this Guaranty shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Borrower or by any defense
which Borrower may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on
any portion of the Guarantied Obligations which accrues after the
commencement of any proceeding referred to in clause (a) above (or, if
interest on any portion of the Guarantied Obligations ceases to accrue by
operation of law by reason of the commencement of said proceeding, such
interest as would have accrued on such portion of the Guarantied Obligations
if said proceedings had not been commenced) shall be included in the
Guarantied Obligations because it is the intention of Guarantors and
Beneficiaries that the Guarantied Obligations which are guarantied by
Guarantors pursuant to this Guaranty should be determined without regard to
any rule of law or order which may relieve Borrower of any portion of such
Guarantied Obligations. Guarantors will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or
similar person to pay Guarantied Party, or allow the claim of Guarantied
Party in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(c) In the event that all or any portion of the Guarantied
Obligations are paid by Borrower, the obligations of Guarantors hereunder
shall continue and remain in full force and effect or be reinstated, as the
case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from any Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments which are
so rescinded or recovered shall constitute Guarantied Obligations for all
purposes under this Guaranty.
M. SET OFF. In addition to any other rights any Beneficiary may
have under law or in equity, if any amount shall at any time following the
occurrence and during the continuance of an Event of Default be due and owing
by any Guarantor to any Beneficiary under this Guaranty, such Beneficiary is
authorized at any time or from time to time, without notice (any such notice
being hereby expressly waived), to set off and to
XIV-10
appropriate and to apply any and all deposits (general or special, including
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness of such Beneficiary owing to such
Guarantor against and on account of the Guarantied Obligations and
liabilities of such Guarantor then due and payable to any Beneficiary under
this Guaranty.
N. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If (a) any or all
of the stock of any Guarantor or any of its successors in interest under this
Guaranty shall be sold or otherwise disposed of (including by merger or
consolidation) in an Asset Sale not prohibited by subsection 7.7 of the
Credit Agreement or otherwise consented to by Requisite Lenders such that
such Guarantor is no longer a Subsidiary or (b) if such Guarantor is
designated as an Unrestricted Subsidiary pursuant to the Credit Agreement,
the Guaranty of such Guarantor or such successor in interest, as the case may
be, hereunder shall automatically be discharged and released without any
further action by any Beneficiary or any other Person effective as of the
time of such Asset Sale; PROVIDED that the applicable Net Asset Sale Proceeds
shall be applied as set forth in the Credit Agreement.
I. SECTION MISCELLANEOUS
A. SURVIVAL OF WARRANTIES. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Guaranty and the other Loan Documents and the Lender Interest Rate Agreements
and any increase in the Commitments under the Credit Agreement.
B. NOTICES. Any communications between Guarantied Party and any
Guarantor and any notices or requests provided herein to be given may be
given by mailing the same, postage prepaid, or by telex, facsimile
transmission or cable to each such party at its address set forth in the
Credit Agreement, on the signature pages hereof or to such other addresses as
each such party may in writing hereafter indicate. Any notice, request or
demand to or upon Guarantied Party or any Guarantor shall not be effective
until received.
C. SEVERABILITY. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
D. AMENDMENTS AND WAIVERS. No amendment, modification, termination
or waiver of any provision of this Guaranty, and no consent to any departure
by any Guarantor therefrom, shall in any event be effective without the
written concurrence of Guarantied Party and, in the case of any such
amendment or modification, each Guarantor against whom enforcement of such
amendment or modification is sought. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which it was given.
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E. HEADINGS. Section and subsection headings in this Guaranty are
included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive
effect.
F. APPLICABLE LAW; RULES OF CONSTRUCTION. THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. The rules of construction set forth in
subsection 1.3 of the Credit Agreement shall be applicable to this Guaranty
MUTATIS MUTANDIS.
G. SUCCESSORS AND ASSIGNS. This Guaranty is a continuing guaranty
and shall be binding upon each Guarantor and its respective successors and
assigns. This Guaranty shall inure to the benefit of Beneficiaries and their
respective successors and assigns. No Guarantor shall assign this Guaranty or
any of the rights or obligations of such Guarantor hereunder without the
prior written consent of all Lenders. Any Beneficiary may, without notice or
consent, assign its interest in this Guaranty in whole or in part. The terms
and provisions of this Guaranty shall inure to the benefit of any transferee
or assignee of any Loan, and in the event of such transfer or assignment the
rights and privileges herein conferred upon such Beneficiary shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
H. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX
XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH GUARANTOR, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 3.2;
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(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE
IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST SUCH GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 3.8
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
I. WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF
THE BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended to be
all encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each Guarantor and, by its acceptance of the benefits
hereof, each Beneficiary, each (i) acknowledges that this waiver is a
material inducement for such Guarantor and Beneficiaries to enter into a
business relationship, that such Guarantor and Beneficiaries have already
relied on this waiver in entering into this Guaranty or accepting the
benefits thereof, as the case may be, and that each will continue to rely on
this waiver in their related future dealings and (ii) further warrants and
represents that each has reviewed this waiver with its legal counsel, and
that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 3.9 AND EXECUTED BY
GUARANTIED PARTY AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
GUARANTY. In the event of litigation, this Guaranty may be filed as a written
consent to a trial by the court.
J. NO OTHER WRITING. This writing is intended by Guarantor and
Beneficiaries as the final expression of this Guaranty and is also intended
as a complete and exclusive statement of the terms of their agreement with
respect to the matters covered hereby. No course of dealing, course of
performance or trade usage, and no parol
XIV-13
evidence of any nature, shall be used to supplement or modify any terms of
this Guaranty. There are no conditions to the full effectiveness of this
Guaranty.
K. FURTHER ASSURANCES. At any time or from time to time, upon the
request of Guarantied Party, Guarantors shall execute and deliver such
further documents and do such other acts and things as Guarantied Party may
reasonably request in order to effect fully the purposes of this Guaranty.
L. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become
effective as to Guarantor upon the execution of a counterpart hereof by
Guarantor and receipt by Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof.
M. GUARANTIED PARTY AS ADMINISTRATIVE AGENT.
1. Guarantied Party has been appointed to act as Guarantied
Party hereunder by Lenders and, by their acceptance of the benefits hereof,
Lender Counterparties. Guarantied Party shall be obligated, and shall have
the right hereunder, to make demands, to give notices, to exercise or refrain
from exercising any rights, and to take or refrain from taking any action,
solely in accordance with this Guaranty and the Credit Agreement; PROVIDED
that Guarantied Party shall exercise, or refrain from exercising, any
remedies hereunder in accordance with the instructions of (i) Requisite
Lenders or (ii) after payment in full of all Obligations under the Credit
Agreement and the other Loan Documents, the holders of a majority of the
aggregate notional amount (or, with respect to any Lender Interest Rate
Agreement that has been terminated in accordance with its terms, the amount
then due and payable (exclusive of expenses and similar payments but
including any early termination payments then due) under such Lender Interest
Rate Agreement) under all Lender Interest Rate Agreements (Requisite Lenders
or, if applicable, such holders being referred to herein as "REQUISITE
OBLIGEES"). In furtherance of the foregoing provisions of this subsection
3.13, each Interest Rate Exchanger, by its acceptance of the benefits hereof,
agrees that it shall have no right individually to enforce this Guaranty, it
being understood and agreed by such Interest Rate Exchanger that all rights
and remedies hereunder may be exercised solely by Guarantied Party for the
benefit of Beneficiaries in accordance with the terms of this subsection 3.13.
2. Guarantied Party shall at all times be the same Person that
is Administrative Agent under the Credit Agreement. Written notice of
resignation by Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute notice of resignation as Guarantied Party
under this Guaranty; removal of Administrative Agent pursuant to subsection
9.5 of the Credit Agreement shall also constitute removal as Guarantied Party
under this Guaranty; and appointment of a successor Administrative Agent
pursuant to subsection 9.5 of the Credit Agreement shall
XIV-14
also constitute appointment of a successor Guarantied Party under this
Guaranty. Upon the acceptance of any appointment as Administrative Agent
under subsection 9.5 of the Credit Agreement by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring or removed Guarantied Party under this Guaranty, and the retiring or
removed Guarantied Party under this Guaranty shall promptly (i) transfer to
such successor Guarantied Party all sums held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Guarantied Party under this
Guaranty, and (ii) take such other actions as may be necessary or appropriate
in connection with the assignment to such successor Guarantied Party of the
rights created hereunder, whereupon such retiring or removed Guarantied Party
shall be discharged from its duties and obligations under this Guaranty.
After any retiring or removed Guarantied Party's resignation or removal
hereunder as Guarantied Party, the provisions of this Guaranty shall inure to
its benefit as to any actions taken or omitted to be taken by it under this
Guaranty while it was Guarantied Party hereunder.
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XIV-15
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused
this Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
BOYDS OPERATIONS, INC.
By
-------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx
XxXxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Fax: 000-000-0000
IN WITNESS WHEREOF, the undersigned Additional Guarantor has caused
this Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, 199_.
(Name of Additional Guarantor)
By
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Title:
Address:
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