AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT Dated as of August 18, 2005 among THE FINANCIAL INSTITUTIONS NAMED HEREIN, as the Lenders, BANK OF AMERICA, N.A., as Administrative Agent, WACHOVIA BANK, NATIONAL ASSOCIATION, as Collateral Agent and as...
EXHIBIT 4.3
AMENDED AND RESTATED
Dated as of August 18, 2005
among
THE FINANCIAL INSTITUTIONS
NAMED HEREIN,
as the Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Collateral Agent and as Syndication Agent,
XXXXX RENTALS, INC.,
as the Obligated Party,
and
BANC OF AMERICA SECURITIES LLC and
WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arrangers
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ARTICLE 1 DEFINITIONS, ACCOUNTING TERMS, AND INTERPRETIVE PROVISIONS |
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Administrative Agent’s and the Lenders’ Books and Records; Monthly Statements |
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The Collateral Agent’s, the Administrative Agent’s and the Lenders’ Rights, Duties, and Liabilities |
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iii
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Contribution and Indemnification among the Obligated Parties |
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Express Waivers By the Obligated Parties In Respect of Cross Guaranties and Cross Collateralization |
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v
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EXHIBITS: |
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Exhibit A |
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Intentionally Omitted |
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Exhibit B |
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Form of Borrowing Base Certificate |
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Exhibit C |
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Form of Compliance Certificate |
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Exhibit D |
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Form of Notice of Borrowing |
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Exhibit E |
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Form of Notice of Continuation/Conversion |
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Exhibit F |
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Form of Assignment and Acceptance |
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Exhibit G |
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Form of Incremental Commitment Agreement |
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SCHEDULES: |
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Schedule 1.1(A) |
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Commitments |
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Schedule 1.1(B) |
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Permitted Investments |
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Schedule 1.1(C) |
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Permitted Liens |
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Schedule 1.1(D) |
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Assigned Contracts |
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Schedule 1.1(E) |
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Excluded Assets |
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Schedule 7.3 |
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Organization; Authority; and Good Standing |
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Schedule 7.4 |
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Capitalization; Subsidiaries |
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Schedule 7.5 |
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Corporate name; Prior Transactions |
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Schedule 7.6 |
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Undisclosed Material Liabilities |
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Schedule 7.9 |
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Distributions |
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Schedule 7.10 |
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Real Estate; Leases |
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Schedule 7.11 |
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Proprietary Rights |
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Schedule 7.12 |
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Trade Names |
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Schedule 7.13 |
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Litigation |
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Schedule 7.14 |
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Labor Matters |
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Schedule 7.15 |
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Environmental Matters |
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Schedule 7.24 |
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Material Agreements |
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Schedule 7.25 |
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Bank Accounts |
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Schedule 7.26 |
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Commercial Tort Claims |
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Schedule 7.29 |
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Certificates of Title |
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Schedule 8.12 |
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Debt |
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Schedule 8.13 |
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GE Sale and Leaseback Agreement Purchase Price Calculation |
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Schedule 8.14 |
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Affiliate Transactions |
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Schedule 10.3 |
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Locations of Collateral |
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vi
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amended and Restated Loan and Security Agreement, dated as of August 18, 2005, is among the lending institutions from time to time party hereto (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), Bank of America, N.A. (“BofA”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), Wachovia Bank, National Association (“Wachovia”), as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), Xxxxx Rentals, Inc. (“Xxxxx”), each of its subsidiaries party from time to time hereto that becomes a borrower hereunder with the prior written consent of all the Lenders (such subsidiaries, together with Xxxxx, are referred to hereinafter each individually as a “Borrower” and collectively as the “Borrowers”) and each of the other Obligated Parties (as hereinafter defined) signatory to this Agreement.
RECITALS:
WHEREAS, the Borrowers, the Agents and certain of the Lenders party hereto are party to a certain Loan and Security Agreement, dated as of October 29, 2004, as amended through but excluding the date hereof (as so amended, the “Original Loan and Security Agreement”); and
WHEREAS, the parties hereto desire to amend and restate the Original Loan and Security Agreement in its entirety, but not as a novation, on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree that the Original Loan and Security Agreement shall be, and hereby is, amended and restated in its entirety as follows, effective on and as of the Closing Date.
DEFINITIONS, ACCOUNTING TERMS, AND INTERPRETIVE PROVISIONS
Section 1.1 Definitions. Capitalized terms wherever used in this Agreement and the other Loan Documents, unless otherwise defined therein, shall have the meanings specified in this Section 1.1.
“Accelerated Delivery Date” means any date on which the Unused Availability is less than $5,000,000.
“Accelerated Delivery Period” means the period commencing on an Accelerated Delivery Date and ending on the first day after any full Fiscal Quarter of Xxxxx, occurring after an Accelerated Delivery Date, during which the Unused Availability equals or exceeds $5,000,000 for each day during such Fiscal Quarter and no Event of Default has occurred or existed.
“Accommodation Payment” has the meaning specified in Section 15.19.
1
“Account Debtor” means each Person obligated in any way on or in connection with an Account, Chattel Paper, or General Intangible (including a payment intangible).
“Accounts” means “accounts”, as such term is defined in the UCC, and any rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance.
“Accounts Payable” means all trade accounts payable of the Obligated Parties and all Debt and other obligations owing by the Obligated Parties with respect to Inventory or Equipment.
“ACH Transactions” means any cash management, disbursement, or related services, including overdrafts and the automated clearinghouse transfer of funds, by BofA or Wachovia for the account of any Obligated Party.
“Additional Mortgaged Property” has the meaning specified in Section 8.28.
“Adjusted Net Earnings from Operations” means, with respect to any fiscal period of Xxxxx, net income of Xxxxx and its Subsidiaries on a consolidated basis after provision for state and local income taxes (if any) for such fiscal period, as determined in accordance with GAAP and reported on the Financial Statements for such fiscal period, excluding any and all of the following included in the determination of such net income: (a) gain or loss arising from the sale of any capital assets (which shall not include, in any event, Inventory); (b) gain arising from any write-up in the book value of any asset or non-cash loss arising from any write-down or write-off in the book value of any non-operating asset; (c) earnings of any other Person, substantially all the assets of which have been acquired by Xxxxx or any of its Subsidiaries in any manner, to the extent realized by such other Person prior to the date of acquisition; (d) earnings of any other Person (other than a Subsidiary of Xxxxx) in which Xxxxx or any of its Subsidiaries has an ownership interest unless (and only to the extent) such earnings shall actually have been received by Xxxxx or any of its Subsidiaries in the form of cash distributions; (e) earnings of any Person to which assets of Xxxxx or any of its Subsidiaries shall have been sold, transferred, or disposed of, or into which Xxxxx or any of its Subsidiaries shall have been merged, or which has been a party with Xxxxx or any of its Subsidiaries to any consolidation or other form of reorganization, prior to the date of such transaction; (f) gain arising from the acquisition of debt or equity securities of Xxxxx or any of its Subsidiaries or from cancellation or forgiveness of Debt; and (g) gain or non-cash loss generated or arising from extraordinary items, as determined in accordance with GAAP, or from any other non-recurring transaction; provided that any non-cash loss generated from the write-down or write-off of operating assets shall not be included in this clause (g).
“Administrative Agent” means BofA, solely in its capacity as administrative agent for the Lenders, and any successor administrative agent.
“Affiliate” means, as to any Person (the “subject Person”), any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, the subject Person or which owns, directly or indirectly, 5.0% or more of the outstanding Capital Stock of the subject Person. A Person shall be deemed to control another Person if the
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controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agent” means each of the Administrative Agent and the Collateral Agent, individually, and “Agents” means both of such Persons, collectively.
“Agent Advances” has the meaning specified in Section 2.2(j).
“Agent-Related Persons” means the Collateral Agent and the Administrative Agent, together with their respective Affiliates, and the officers, directors, employees, counsel, representatives, agents, and attorneys-in-fact of the Collateral Agent and the Administrative Agent and their respective Affiliates.
“Agent’s Liens” means the Liens in the Collateral granted to the Collateral Agent, for the benefit of the Credit Providers, pursuant to the terms of this Agreement and the other Loan Documents.
“Aggregate Revolver Outstandings” means, at any time, the sum of (a) the aggregate unpaid balance of the Revolving Loans, (b) the aggregate undrawn amount of all outstanding Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit.
“Agreement” means this Amended and Restated Loan and Security Agreement, as it may be further amended, restated, or otherwise modified from time to time.
“Xxxxx” means Xxxxx Rentals, Inc., a Nevada corporation.
“Aircraft Mortgage” means the Aircraft Security Agreement, dated as of the Original Closing Date, by and between Xxxxx and the Collateral Agent, by which the Collateral Agent, for the benefit of the Credit Providers, acquires a Lien on a certain 1979 Xxxxxx model 369D helicopter bearing Serial Number 790544D and FAA Registration Number N58341.
“Allocable Amount” has the meaning specified in Section 15.19.
“Anniversary Date” means an anniversary of the Closing Date.
“Applicable Margin” means, as of the Closing Date,
(a) with respect to Base Rate Revolving Loans and all other Obligations (other than LIBOR Rate Revolving Loans), .375% per annum, and
(b) with respect to LIBOR Rate Revolving Loans, 2.125%,
in each case subject to adjustment from time to time thereafter to the applicable percentage specified corresponding to the Leverage Ratio, as set forth below, respectively:
3
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Leverage Ratio |
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Base Rate Revolving |
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LIBOR Rate |
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greater than 4.75:1.00 |
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.625 |
% |
2.375 |
% |
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4.75:1.00 to 3.50:1.00 |
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.375 |
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2.125 |
% |
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less than 3.50:1.00 |
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.125 |
% |
1.875 |
% |
For the purpose of determining any such adjustments to the Applicable Margin, the Leverage Ratio shall be determined, beginning with the Fiscal Quarter ending March 31, 2006, based upon the Financial Statements of Xxxxx and its Subsidiaries for the immediately preceding four (4) Fiscal Quarters of Xxxxx, and for each Fiscal Quarter of Xxxxx ending thereafter, delivered to the Agents as required by Section 6.2(a) (with respect to the Financial Statements as of the last day of each Fiscal Year) or Section 6.2(b)(i) (with respect to the Financial Statements for each of the other Fiscal Quarters of each Fiscal Year), and any such adjustment, if any, shall become effective prospectively on and after the first day of the calendar month following the date of delivery of such Financial Statements to the Agents. Concurrently with the delivery of such Financial Statements, Xxxxx shall deliver to the Agents a certificate, signed by a Responsible Officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margin. In the event the Obligated Parties fail to timely deliver any such Financial Statements, in addition to any other remedy provided for in this Agreement, the Applicable Margin shall be deemed to be equal to the highest level set forth in the preceding table, until the first day of the calendar month following the date of delivery of such Financial Statements to the Agents, at which time the Applicable Margin shall be determined, prospectively, in accordance with the terms hereof. If a Default or an Event of Default exists at the time any reduction in the Applicable Margin is to be implemented, such reduction shall not occur until the first day of the calendar month following the date on which such Default or Event of Default is Waived or cured.
“Assigned Contracts” means, collectively, all of each Obligated Party’s rights and remedies under, and all moneys and claims for money due or to become due to such Obligated Party under, those contracts set forth on Schedule 1.1(D) and any other material contracts, and any and all amendments, supplements, extensions, renewals, and other modifications thereof including all rights and claims of such Obligated Party now or hereafter existing: (a) under any insurance, indemnities, warranties, and guaranties provided for or arising out of or in connection with any of the foregoing agreements; (b) for any damages arising out of or for breach or default under or in connection with any of the foregoing contracts; (c) to all other amounts from time to time paid or payable under or in connection with any of the foregoing agreements; or (d) to exercise or enforce any and all covenants, remedies, powers, and privileges thereunder.
“Assignee” has the meaning specified in Section 13.2(a).
4
“Assignment and Acceptance” has the meaning specified in Section 13.2(a).
“Attorney Costs” means and includes (a) all reasonable fees, expenses, and disbursements of (i) any law firm or other counsel engaged by the Collateral Agent or the Administrative Agent and (ii) one law firm or other external counsel engaged by the Lenders and (b) the reasonably allocated costs and expenses of internal legal services of the Collateral Agent and the Administrative Agent.
“Bank Product Reserves” means all reserves which either or both of the Agents from time to time establish in its or their reasonable credit judgment for the Bank Products then provided or outstanding.
“Bank Products” means each and any of the following types of services or facilities extended to any of the Obligated Parties by (I) in the case of (b) below, BofA or Wachovia or any Affiliate of BofA or Wachovia and (II) in the case of (a), (c) and (d) below, any Lender or any Affiliate of any Lender: (a) commercial credit cards; (b) cash management services (including controlled disbursement services, ACH Transactions, and interstate depository network services), (c) Hedge Agreements; and (d) foreign exchange.
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Base Rate” means, for any day, the greater of (a) the rate of interest in effect for such day as publicly announced from time to time by BofA in Charlotte, North Carolina as its “prime rate” (the “prime rate” being a rate set by BofA based upon various factors including BofA’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate) or (b) the Federal Funds Rate in effect for such day, plus 0.50% per annum, provided, that, in the Agents’ sole discretion, such amount is subject to change at any time without notice to the Borrowers. With respect to any determination of any Interest Rate which is based on the Base Rate, any change in the prime rate announced by BofA shall take effect at the opening of business on the day specified in the public announcement of such change, and any change in the Federal Funds Rate shall take effect as of the date of such change.
“Base Rate Revolving Loan” means any portion of the Revolving Loans during any period in which such portion bears interest based on the Base Rate.
“Blocked Availability Amount” means $10,000,000.
“BofA” has the meaning specified in the introductory paragraph of this Agreement.
“Borrower” means, separately and individually, any of Xxxxx and any other Person who becomes a party to this Agreement as a “Borrower” pursuant to the terms hereof, jointly, severally, and collectively, and “Borrowers” means more than one or all of the foregoing Persons, jointly, severally, and collectively, as the context requires.
“Borrowing” means (a) a borrowing hereunder consisting of Revolving Loans made available to the Borrowers, or any of them, on the same day (i) by the Lenders, (ii) by BofA (in the case of a Borrowing funded as a Non-Ratable Loan), or (iii) by the Administrative Agent (in
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the case of a Borrowing consisting of an Agent Advance), or (b) the issuance of a Letter of Credit hereunder.
“Borrowing Base” means, at any time, (a) an amount equal to the least of (i) the Maximum Revolver Amount, (ii) the sum of, without duplication, (1) up to eighty-five percent (85%) of the Net Amount of Eligible Accounts, plus (2) up to the lesser of (A) ninety-five percent (95%) of the Net Book Value of Eligible Rental and Sale Equipment and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Rental and Sale Equipment, plus (3) up to the lesser of (A) ninety-five percent (95%) of the Net Book Value of Eligible Transportation Equipment and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Transportation Equipment, plus (4) up to the lesser of (A) sixty percent (60%) of the value (at the lower of cost, on an average cost basis, or market) of Eligible Spare Parts Inventory and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Spare Parts Inventory, minus (5) the Blocked Availability Amount minus (6) the aggregate amount, if any, by which the Commitments and the Maximum Revolver Amount have been permanently reduced in accordance with Section 4.3(f), and (iii) the maximum amount of Aggregate Revolver Outstandings permitted to be outstanding under Section 4.09(b)(1) of the Second Lien Debt Agreement minus (b) such Reserves as are established from time to time by either or both of the Agents in its or their reasonable credit judgment.
“Borrowing Base Certificate” means a certificate by a Responsible Officer of the Borrowers, or Xxxxx on behalf of the Borrowers, substantially in the form of Exhibit B (or another form acceptable to the Agents) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including to the extent a Borrower has received notice of any Reserve from an Agent, any of the Reserves included in such calculation pursuant to clause (b) of the definition of Borrowing Base), all in such detail as shall be satisfactory to the Agents. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall originally be made by the Borrowers, or Xxxxx on behalf of the Borrowers, and certified to the Agents; provided that each of the Agents shall have the right to review and adjust, in the exercise of its credit judgment, any such calculation (a) to reflect its estimate of declines in value of any of the Collateral described therein, (b) to reflect the receipt of proceeds of the Collateral, and (c) to the extent that such calculation is not made in accordance with the terms of this Agreement.
“Business Day” means (a) any day that is not a Saturday, Sunday, Nevada Day or a day on which banks in New York, New York or Charlotte, North Carolina are required or permitted to be closed and (b) with respect to all notices, determinations, fundings, and payments in connection with the LIBOR Rate or LIBOR Rate Revolving Loans, any day that is a Business Day pursuant to clause (a) preceding and that is also a day on which trading in Dollars is carried on by and between banks in the London interbank market. “Nevada Day” means the holiday celebrating the admission of Nevada into statehood, which occurs on or about October 31st of each year.
“Capital Adequacy Regulation” means any guideline, request, or directive of any central bank or other Governmental Authority, or any other law, rule, or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.
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“Capital Expenditures” means, with respect to any Person, all payments made by such Person with respect to the cost of any Inventory (other than spare parts Inventory and other than Inventory at all times held for sale and not rental), Fixed Asset or improvement, or replacement, substitution, or addition thereto, which has a useful life of more than one year, including those costs arising in connection with the direct or indirect acquisition of such asset or improvement by way of increased product or service charges or in connection with a Capital Lease, excluding (a) expenditure of insurance proceeds to rebuild or replace any asset or improvement after a casualty loss and (b) leasehold improvement expenditures for which such Person is reimbursed promptly by the lessor. Without limiting the foregoing and in any event, any and all payments and purchases of Inventory made by or on behalf of Xxxxx under or with respect to the GE Sale and Leaseback Agreement permitted under Section 8.13(d) shall constitute Capital Expenditures made by Xxxxx; provided that the purchase of any such Inventory (and the related payment of the purchase price therefor) which is held by Xxxxx, at all times after such purchase, for sale and not rental shall not constitute Capital Expenditures under this sentence.
“Capital Lease” means any lease of property by a Person which, in accordance with GAAP, should be reflected as a capital lease on the balance sheet of such Person.
“Capital Stock” means any and all corporate stock, units, shares, partnership interests, membership interests, equity interests, rights, securities, or other equivalent evidences of ownership (howsoever designated) issued by any Person.
“Change of Control” means the occurrence of any of the following: (a) except as allowed by Section 8.9, the adoption of a plan relating to the liquidation or dissolution of any Obligated Party; (b) (i) Xxx Xxxxx shall cease to own, directly or indirectly, at least 51% of the outstanding voting Capital Stock of Xxxxx, (ii) Xxx Xxxxx, any member of his immediate family and any trust established for the benefit of Xxx Xxxxx and/or any member of his immediate family shall cease to own, directly or indirectly, at least 75.0% of the outstanding voting Capital Stock of Xxxxx, (iii) Xxx Xxxxx shall, by agreement or otherwise, cease to have the right to exercise voting control of Xxxxx or (iv) Xxx Xxxxx shall die or shall become incapacitated or disabled such that Xxx Xxxxx is unable to properly perform the duties for Xxxxx that he performs for Xxxxx on the Original Closing Date; provided, that if Xxx Xxxxx shall die or become so incapacitated or disabled, a Change of Control under this clause (b) shall not occur as a result of such death, incapacitation or disability if, within 90 days after the occurrence of his death or such incapacity or disability and at all times thereafter, Xxxxx shall have employed one or more Persons with requisite experience that are reasonably satisfactory to the Agents to perform those duties for Xxxxx that Xxx Xxxxx performs for Xxxxx on the Original Closing Date; (c) except as allowed by Section 8.9, any Obligated Party (other than Xxxxx) shall cease to be a Wholly-Owned Subsidiary of Xxxxx or (d) there shall occur a “Change of Control” or a “Change in Control” as defined in any Second Lien Debt Document, any Refinancing Second Lien Debt Document or any other document governing material Debt of any Obligated Party.
“Chattel Paper” means “chattel paper”, as such term is defined in the UCC, and any electronic chattel paper.
“Clearing Account” means each bank account maintained with BofA or a Clearing Bank, subject to a Deposit Account Control Agreement providing for the Collateral Agent’s dominion
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and control of such bank account, to which the funds of an Obligated Party (including proceeds of Accounts and other Collateral) are deposited or credited, and which is maintained in the name of the Collateral Agent or such Obligated Party (as the Agents may determine) on terms acceptable to the Agents. For purposes of this Agreement, “Clearing Account” includes any Clearing Accounts opened by any Obligated Party with BofA and pledged in accordance with Article 10, and any renewals or rollovers thereof, any successor or substitute deposit accounts, including any such deposit account as it may have been renumbered or retitled, any proceeds thereof (including any interest paid thereon), and any general intangibles and choses in action arising therefrom or related thereto. Whenever there is more than one Clearing Account, the term “Clearing Account” shall refer to all such Clearing Accounts, collectively.
“Clearing Bank” means any banking institution reasonably acceptable to the Agents with whom a Clearing Account has been established.
“Closing Date” means the date of this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Co-Lead Arrangers” means Banc of America Securities LLC and Wachovia Capital Markets, LLC, solely in their respective capacities as co-lead arrangers.
“Collateral” has the meaning specified in Section 10.1.
“Collateral Agent” means Wachovia, solely in its capacity as collateral agent for the Lenders, and any successor collateral agent.
“Collateral Documents” means this Agreement, the Intercreditor Agreement, the Proprietary Rights Security Agreements, any Mortgages, any Aircraft Mortgage, any Guaranty Agreements, and any other agreements, instruments, and documents heretofore, now or hereafter executed and delivered in connection with this Agreement or the Original Loan and Security Agreement, pursuant to which liens and security interests are granted to the Collateral Agent in the Collateral for the benefit of the Credit Providers.
“Collateral Waiver Agreement” means any agreement, in form and substance reasonably satisfactory to the Agents, between the Collateral Agent (or the Collateral Agent and the Second Lien Agent) and any landlord of any Obligated Party for any Real Estate where any Collateral is located or any third party (including any bailee, consignee, customs broker, processor, warehouseman, or other similar Person) in possession of any Collateral, as such agreement may be amended, restated, or otherwise modified from time to time.
“Commitment” means, at any time with respect to a Lender, the principal amount set forth beside such Lender’s name under the heading “Revolving Commitment” on Schedule 1.1(A) or as set forth in the most recent Assignment and Acceptance to which such Lender is a party, as such Commitment may be (i) increased (or, in the case of a new Lender, established) as a result of such Lender providing Incremental Commitment(s) after the Closing Date and/or (ii) otherwise adjusted from time to time in accordance with the provisions of this Agreement, and “Commitments” means, collectively, the aggregate amount of the Commitment of each of the Lenders, collectively.
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“Compliance Certificate” has the meaning specified in Section 6.2(d).
“Contaminant” means any material defined as waste, pollutant, hazardous substance, toxic substance, hazardous waste, or special waste under any Environmental Law (including petroleum or petroleum-derived substance or waste, asbestos in any form or condition, and polychlorinated biphenyls), or any constituent of any such substance or waste.
“Continuation/Conversion Date” means the effective date of (a) any continuation of LIBOR Rate Revolving Loans as LIBOR Rate Revolving Loans and (b) any conversion of LIBOR Rate Revolving Loans to Base Rate Revolving Loans or of Base Rate Revolving Loans to LIBOR Rate Revolving Loans.
“Credit Providers” means, collectively, the Collateral Agent, the Administrative Agent (in its capacity as administrative agent for the Lenders and, additionally, as provider of Agent Advances), the Lenders, BofA, in its capacity as provider of Non-Ratable Loans, each of BofA, Wachovia and each other Lender and their respective Affiliates as a provider of Bank Products, the Letter of Credit Issuer, and the Indemnified Persons, and “Credit Provider” means any of the foregoing, individually.
“Debt” means, without duplication, with respect to any Person (the “subject Person”) all liabilities, obligations, and indebtedness of the subject Person to any other Person, of any kind or nature, now or hereafter owing, arising, due, or payable, howsoever evidenced, created, incurred, acquired, or owing, whether primary, secondary, direct, contingent, fixed, or otherwise, consisting of indebtedness for borrowed money or the deferred purchase price of property, excluding trade payables and the endorsement of checks and other similar instruments in the ordinary course of business, but including, in any event and without in any way limiting the generality of the foregoing: (a) in the case of the Obligated Parties, the Obligations; (b) all such indebtedness, liabilities, and obligations of any Person secured by any Lien on the subject Person’s property, even if the subject Person shall not have assumed or become liable for the payment thereof; provided that all such indebtedness, liabilities, and obligations which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the subject Person prepared in accordance with GAAP; (c) all such indebtedness, liabilities, and obligations created or arising under any Capital Lease or conditional sale or other title retention agreement with respect to property used or acquired by the subject Person, even if the rights and remedies of the lessor, seller, or lender thereunder are limited to repossession of such property; provided that all such indebtedness, liabilities, and obligations which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the subject Person prepared in accordance with GAAP; (d) all indebtedness, liabilities, and obligations under Guaranties of Debt; (e) the present value (discounted at the implicit interest rate in such transaction) of lease payments due under synthetic leases; (f) net obligations in respect of Hedge Agreements; (g) all indebtedness, liabilities and obligations of the subject Person evidenced by notes, bonds, debentures or similar instruments; (h) all preferred capital stock issued by the subject Person that is required to be repurchased or redeemed by the subject Person or is repurchaseable or redeemable at the option of the holder thereof; and (i) all indebtedness, liabilities and obligations of the subject Person in respect of letters of credit or instruments serving a similar function issued or accepted for the account of the subject Person
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(whether or not representing obligations for borrowed money). Debt of any Person shall include all obligations of such Person of the character described in clauses (a) through (i) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP. Debt of any Person shall include the Debt of any partnership or Joint Venture in which such Person is a general partner or a joint venturer, unless such Debt is, by its terms, non-recourse to the assets of such Person other than as a result of customary exclusions.
“Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, Waived, or otherwise remedied during such time) constitute an Event of Default.
“Default Rate” means a fluctuating per annum interest rate at all times equal to the sum of (a) the otherwise applicable Interest Rate, plus (b) 2.00% per annum. The Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate.
“Defaulting Lender” has the meaning specified in Section 14.15(c).
“Deposit Account Control Agreement” means an agreement, including a blocked account agreement, in form and substance satisfactory to each Agent, among an Obligated Party, a banking institution holding funds of such Obligated Party, the Collateral Agent (or the Collateral Agent and the Second Lien Agent) and the Administrative Agent with respect to collection and control of all deposits and balances held in a Deposit Account maintained by such Obligated Party with such banking institution.
“Deposit Accounts” means “deposit accounts”, as such term is defined in the UCC.
“Dilution” means, at the time of any relevant determination, the average amount for the twelve (12) consecutive Fiscal Month period most recently ended prior to such time of determination, by which the amount of Eligible Accounts is reduced due to returns, discounts, claims, credits, allowances, accrued rebates, offsets, deductions, counterclaims, disputes and other defenses of any nature at any time issued, owing, granted, outstanding, available or claimed.
“Disposition” or “Dispose” means the sale, transfer, license, lease, or other disposition (including any sale and leaseback transaction) of any property by any Person.
“Distribution” means, with respect to any Person (other than a natural person) (a) the payment or making of any dividend or other distribution of property by such Person in respect of its Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock), other than distributions solely in such Person’s Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock) of the same class or (b) the redemption, repurchase, retirement, or other acquisition by such Person of any Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock) of such Person.
“Documents” means “documents”, as such term is defined in the UCC, and bills of lading, warehouse receipts, and other documents of title.
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“DOL” means the United States Department of Labor or any successor department or agency.
“Dollar” and “$” mean dollars in the lawful currency of the U.S. Unless otherwise specified, all payments under any Loan Document shall be made in Dollars.
“Early Termination Fee” has the meaning specified in Section 4.2.
“EBITDA” means, with respect to any fiscal period of Xxxxx, Adjusted Net Earnings from Operations, plus, to the extent deducted in the determination of Adjusted Net Earnings from Operations for such fiscal period, (a) Interest Expense, (b) federal, state, local, and foreign income taxes, and (c) depreciation and amortization, in each case for Xxxxx and its Subsidiaries on a consolidated basis.
“Eligible Accounts” means the Accounts of the Borrowers that both of the Agents in the exercise of their reasonable credit judgment determine to be Eligible Accounts. Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Accounts shall not include any Account (except as may be otherwise specified below):
(a) that does not arise from the sale or lease of Goods or rendition of services in the ordinary course of business of a Borrower;
(b) that is not subject to the Agent’s Liens which are perfected as to such Account, or that is subject to any other Lien (other than the Lien permitted under clause (i) of the defined term Permitted Liens);
(c) with respect to which either (i) any payment, or part thereof, remains unpaid for more than 90 days from the original due date therefor, or (ii) more than 120 days have elapsed from the date of the original invoice therefor, or no invoice has been issued;
(d) with respect to which any of the representations, warranties, covenants, and agreements contained in this Agreement are incorrect or have been breached;
(e) with respect to which (or any other Account due from the applicable Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other instrument for the payment of money has been received, presented for payment, and returned uncollected for any reason;
(f) that is the subject of any debit memo or charge-back, but only to the extent of such debit memo or charge-back;
(g) that represents a progress billing (for the purposes hereof, “progress billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon such Borrower’s completion of any further performance under such contract or agreement, other than, in the case of a lease of Inventory in the ordinary course of business, the performance of any covenant of quiet enjoyment);
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(h) with respect to which any one or more of the following events has occurred to the Account Debtor on such Account: (i) death or judicial declaration of incompetency of such Account Debtor who is a natural person; (ii) the filing by or against such Account Debtor of a request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt, winding-up, or other relief under the Bankruptcy Code or any other Requirement of Law, now or hereafter in effect; (iii) the making of any general assignment by such Account Debtor for the benefit of creditors; (iv) the appointment of a receiver or trustee for such Account Debtor or for any of the assets of such Account Debtor, including the appointment of or taking possession by a “custodian,” as defined in the Bankruptcy Code; (v) the institution by or against such Account Debtor of any other type of insolvency proceeding (under the Bankruptcy Code or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of, such Account Debtor; (vi) the sale, assignment, or transfer of all or any material part of the assets of such Account Debtor; (vii) the nonpayment generally by such Account Debtor of its debts as they become due; or (viii) the cessation of the business of such Account Debtor as a going concern;
(i) with respect to which 50% or more of the aggregate Dollar amount of outstanding Accounts owed at such time to the Borrowers by the Account Debtor thereon is classified as ineligible pursuant to the other provisions of this definition;
(j) owed by an Account Debtor that: (i) does not maintain its chief executive office in the U.S.; (ii) is not organized under the laws of the U.S. or any political subdivision, state or territory thereof; or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, except to the extent that such Account is secured or payable by a letter of credit the terms of which are satisfactory to the Agents in their reasonable credit judgment and which is in the possession of the Collateral Agent and which, together with all related Letter-of-Credit Rights, is subject to a first priority Lien in favor of the Collateral Agent, for the benefit of the Credit Providers;
(k) owed by an Account Debtor that is an Affiliate, officer, director, or employee of any Borrower or any Affiliate of any Borrower;
(l) except as provided in clause (n) following, with respect to which either the perfection or validity of the Agent’s Liens in such Account, or the Collateral Agent’s right or ability to obtain direct payment to the Collateral Agent of the proceeds of such Account, is governed by any federal, state, or local statutory requirements other than those of the UCC;
(m) owed by an Account Debtor to which an Obligated Party or any of its Affiliates, is indebted in any way (including accrued liabilities), or which is subject to any right of setoff or recoupment by the Account Debtor, unless the Account Debtor has entered into an agreement acceptable to the Agents to waive setoff rights, or if the Account Debtor thereon has disputed liability or made any claim with respect to any
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other Account due from such Account Debtor, but in each such case only to the extent of such indebtedness, setoff, recoupment, dispute, or claim;
(n) owed by (i) the government of the U.S., or any department, agency, public corporation, or other instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq.), and any other steps necessary to perfect the Agent’s Liens therein, have been complied with to the Agents’ reasonable satisfaction with respect to such Account or (ii) any state, municipality, or other political subdivision of the U.S., or any department, agency, public corporation, or other instrumentality thereof and as to which either of the Agents determines that the Agent’s Lien therein is not or cannot be perfected;
(o) that represents a sale on a (i) cash or C.O.D. basis or (ii) xxxx-and-hold, guaranteed sale, sale and return, sale on approval, consignment, or other repurchase or return basis;
(p) that is owed by an Account Debtor either (i) in respect of Inventory subject to the GE Sale and Leaseback Agreement or any related document or (ii) who is also an Account Debtor in respect of Inventory subject to the GE Sale and Leaseback Agreement or any related document (unless, in the case of this clause (ii), the Inventory subject to the GE Sale and Leaseback Agreement or any related document is invoiced to such Account Debtor pursuant to different invoices than those used for any other Inventory);
(q) that is evidenced by a promissory note or other instrument or by Chattel Paper;
(r) with respect to which either Agent believes, in the exercise of its reasonable credit judgment, that the prospect of collection of such Account is impaired or that such Account may not be paid by reason of the Account Debtor’s financial inability to pay;
(s) except as may be permitted by the Agents in their reasonable credit judgment, with respect to which the Account Debtor is located in any state requiring the filing of a Notice of Business Activities Report or similar report in order to permit the applicable Borrower to seek judicial enforcement in such state of payment of such Account, unless such applicable Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year;
(t) to the extent constituting finance or similar charges or sales or use tax;
(u) with respect to which the goods giving rise to such Account have not been shipped and delivered to and accepted by, or have been rejected or objected to by, the Account Debtor or to the extent the services giving rise to such Account have not been performed by the applicable Borrower, and, if applicable, accepted by the Account Debtor, or the Account Debtor revokes its acceptance of such goods or services;
(v) owed by an Account Debtor, or group of affiliated Account Debtors, which is obligated to the Borrowers respecting Accounts the aggregate unpaid balance of which exceeds 10% of the aggregate unpaid balance of all Eligible Accounts owed to the
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Borrowers at such time by all of the Borrowers’ Account Debtors, but only to the extent of such excess;
(w) that is the subject of any unreconciled variance between the aging of Accounts delivered to either Agent, the general ledger of the applicable Borrower, and the applicable Borrowing Base Certificate; or
(x) that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.
“Eligible Assignee” means (a) a commercial bank, commercial finance company, or other asset based lender having total assets in excess of One Billion Dollars ($1,000,000,000), (b) any Lender, (c) any Affiliate of any Lender, and (d) if an Event of Default has occurred and is continuing, any Person reasonably acceptable to the Agents.
“Eligible Inventory” means Inventory of the Borrowers which both of the Agents, in their reasonable credit judgment, determine to be Eligible Inventory. Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Inventory shall not include any Inventory (except as may be otherwise specified below):
(a) that is not owned by a Borrower, including goods held by a Borrower on consignment;
(b) that is not subject to the Agent’s Liens, which are perfected as to such Inventory, or that is subject to any Liens pursuant to the GE Sale and Leaseback Agreement or any related document or any other Lien (other than the Liens described in clauses (a), (c), (e) and (i) of the definition of Permitted Liens; provided that such Permitted Liens (i) are junior in priority to the Agent’s Liens or subject to Reserves and (ii) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral);
(c) that is not finished goods or raw materials;
(d) that consists of work-in-process, chemicals, samples, prototypes, supplies, or packing and shipping materials;
(e) that is not in good condition, is unmerchantable or not rentable in the ordinary course of business of a Borrower, or does not meet all standards imposed by any Governmental Authority having regulatory authority over such goods or their use or sale;
(f) that is obsolete or defective;
(g) consisting of airplanes, helicopters or other aircraft or spare parts therefor;
(h) that is located outside the U.S. or that is in transit from vendors or suppliers or to buyers; provided that the Agents may in their discretion include as Eligible Inventory any Inventory which is in transit within the U.S. or Canada to a Borrower’s place of business and any Inventory held for lease which is in transit to lessees shall not be
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excluded by this clause (h), provided that upon the request of either Agent the Borrowers shall deliver to the Agents a listing of all such Inventory and its location;
(i) that is consigned to third parties or is subject to any xxxx-and-hold, guaranteed sale, sale on approval, or other repurchase or return basis;
(j) that is located in a public warehouse or in possession of a bailee or in a facility leased by a Borrower, if the applicable warehouseman, bailee, or lessor has not delivered to the Agents a Collateral Waiver Agreement or if, in lieu of such Collateral Waiver Agreement, a Reserve for rents or storage charges (in an amount for any location not to exceed at any time three (3) months’ rent or storage charges plus any then unpaid rent or storage charges owing with respect to such location) has not been established to the extent the Agents deem appropriate in their reasonable credit judgment for Inventory at that location;
(k) that contains or bears any Proprietary Rights licensed to a Borrower by any Person, if either of the Agents is not satisfied that the Collateral Agent may sell or otherwise dispose of such Inventory in accordance with the terms of this Agreement (including Section 11.2) without infringing the rights of the licensor of such Proprietary Rights or violating any contract with such licensor (and without payment of any royalties other than any royalties due with respect to the sale or disposition of such Inventory pursuant to the existing license agreement), and, if either of the Agents deems it necessary, as to which such Borrower has not delivered to the Agents a consent or sublicense agreement from such licensor in form and substance acceptable to the Agents;
(l) that is not reflected in the details of a current perpetual inventory report;
(m) that is leased to any Person which is not in compliance with the terms of the lease agreement relating to such lease and as to which there is any restriction or impediment (legal or otherwise), as determined by either of the Agents in its reasonable credit judgment, on the ability of the Collateral Agent to obtain access thereto in order to repossess same; or
(n) that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.
Notwithstanding that any Inventory acquired as a result of the termination of the GE Sale and Leaseback Agreement would, absent this sentence, be considered Eligible Inventory, no such Inventory shall be Eligible Inventory unless and until such Inventory is included in an Inventory Appraisal delivered pursuant to Section 10.4.
“Eligible Rental and Sale Equipment” means Eligible Inventory consisting of Inventory (other than spare parts and merchandise Inventory) held for sale or lease in the ordinary course of a Borrower’s business, which is marked with an identifiable serial number.
“Eligible Spare Parts Inventory” means Eligible Inventory consisting of unused spare parts and merchandise inventory located on premises owned or leased by a Borrower, which spare parts and merchandise inventory are held for sale by a Borrower in the ordinary course of
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its business or for the repair or maintenance of Inventory of a Borrower that is held for sale or lease by such Borrower in the ordinary course of its business.
“Eligible Transportation Equipment” means Transportation Equipment of the Borrowers marked with an identifiable serial number which both of the Agents, in their reasonable credit judgment, determine to be Eligible Transportation Equipment. Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Transportation Equipment shall not include any Transportation Equipment (except as may be otherwise specified below):
(a) that is not owned by a Borrower, including goods held by a Borrower on consignment;
(b) that is not subject to the Agent’s Liens, which are perfected as to such Transportation Equipment, or that is subject to any Lien (other than the Liens described in clauses (a), (c), (e) and (i) of the definition of Permitted Liens; provided that such Permitted Liens (i) are junior in priority to the Agent’s Liens or subject to Reserves and (ii) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral);
(c) that is not in good condition or does not meet all standards imposed by any Governmental Authority having regulatory authority over such goods or their use or sale;
(d) that is obsolete or defective;
(e) consisting of airplanes, helicopters or other aircraft or spare parts therefore;
(f) that is located outside the U.S.; provided that the Agents may in their discretion include as Eligible Transportation Equipment any Transportation Equipment which is in transit within Canada moving Inventory to or from a customer of a Borrower in the ordinary course of such Borrower’s business;
(g) that is consigned to third parties or is subject to any xxxx-and-hold, guaranteed sale, sale on approval, or other repurchase or return basis;
(h) that is located in a public warehouse or in possession of a bailee or in a facility leased by a Borrower, if the applicable warehouseman, bailee, or lessor has not delivered to the Agents a Collateral Waiver Agreement or if, in lieu of such Collateral Waiver Agreement, a Reserve for rents or storage charges (in an amount for any location not to exceed at any time three (3) months’ rent or storage charges plus any then unpaid rent or storage charges owing with respect to such location) has not been established to the extent the Agents deem appropriate in their reasonable credit judgment for Transportation Equipment at that location;
(i) that contains or bears any Proprietary Rights licensed to a Borrower by any Person, if either of the Agents is not satisfied that the Collateral Agent may sell or otherwise dispose of such Transportation Equipment in accordance with the terms of this Agreement (including Section 11.2) without infringing the rights of the licensor of such Proprietary Rights or violating any contract with such licensor (and without payment of
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any royalties), and, if either of the Agents deems it necessary, as to which such Borrower has not delivered to the Agents a consent or sublicense agreement from such licensor in form and substance acceptable to the Agents; or
(j) that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.
“Environmental Claim” means any claim, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for a Release or injury to the environment.
“Environmental Compliance Reserve” means any reserve that either of the Agents establishes from time to time in its reasonable credit judgment after prior written notice to the Borrowers for amounts that are reasonably likely to be expended by an Obligated Party in order for such Obligated Party and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with any Environmental Law or (b) to correct any non-compliance identified in a report delivered to the Agents pursuant to Section 8.7.
“Environmental Law” means any Requirement of Law relating to environmental, health, safety, and land use matters.
“Environmental Lien” means a Lien in favor of any Governmental Authority or any other Person for (a) any liability under any Environmental Law or (b) damages arising from, or costs incurred by such Governmental Authority or other Person in response to, a Release or threatened Release of a Contaminant into the environment.
“Equipment” means “equipment”, as such term is defined in the UCC, and all machinery, equipment, furniture, furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, motor vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds, and office equipment, as well as all of such types of property leased by the applicable Person and all of such Person’s rights and interests with respect thereto under such leases (including options to purchase), together with all present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto.
“Equipment Appraisal” means, with respect to a Borrower, the most recently delivered appraisal of the Transportation Equipment of such Borrower delivered to the Agents pursuant to Section 10.4.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with an Obligated Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such
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Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could be liable under the Code or ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, (b) a withdrawal by an Obligated Party 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 operations that is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by an Obligated Party or any ERISA Affiliate from a Multiemployer Plan, (d) the filing of a notice of intent to terminate, or the commencement of proceedings by the PBGC to terminate a Pension Plan or the termination, insolvency, or reorganization of a Multiemployer Plan, (e) the occurrence of 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 (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon an Obligated Party or any ERISA Affiliate.
“Event of Default” has the meaning specified in Section 11.1.
“Excess Availability” means Unused Availability determined without giving effect to the deduction of the Blocked Availability Amount in the calculation of the Borrowing Base.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Asset” means any lease (including any fixtures or improvements on the property subject to the lease), license, contract or agreement to which Xxxxx or any Guarantor is a party or any of its rights or interests thereunder (including any rights or interests in tangible property in which Xxxxx or any Guarantor grants a Lien pursuant to any such agreement), in each instance, if and only for so long as the grant of a security interest under this Agreement therein shall constitute or result in a breach, termination or default under any such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to the Uniform Commercial Code of any relevant jurisdiction (including, without limitation, under Sections 9-406, 9-407, 9-408 or 9-409 thereof) or any other applicable law or principles of equity); provided that notwithstanding the foregoing (i) no lease, license, contract or agreement or any right or interest thereunder, in each instance, existing on the Closing Date shall constitute an Excluded Asset unless described on Schedule 1.1(E), (ii) no Account or money or other amounts due or to become due to Xxxxx or any Guarantor under or with respect to any such lease, license, contract or agreement or right or interest thereunder (other than amounts constituting proceeds from the sale of Inventory (other than Eligible Inventory) or Equipment (other than Eligible Transportation Equipment), in each instance, subject to purchase money financing permitted hereunder) shall constitute an Excluded Asset, (iii) no item of tangible property owned by Xxxxx or any Guarantor shall constitute an Excluded Asset unless such item is subject to purchase money Debt or other financing permitted under this Agreement or is an aircraft (other than the helicopter subject to the Aircraft Mortgage), (iv) any interest of Xxxxx or any Guarantor, as lessee, in a lease of real property shall constitute an Excluded Asset and (v) such lease, license, contract or agreement or right or interest thereunder shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall
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result and shall cease to be an Excluded Asset and shall become subject to the security interest granted under this Agreement, immediately and automatically, at such time as such consequences shall no longer result (including, without limitation and in any event, in the case of any item of tangible property which is the subject of purchase money Debt or other financing permitted hereunder when such financing has been paid in full). The parties hereto acknowledge that Inventory that is leased to Xxxxx under the GE Sale and Leaseback Agreement is an Excluded Asset.
“FDIC” means the Federal Deposit Insurance Corporation, and any Governmental Authority succeeding to any of its principal functions.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/8th of 1.00%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to BofA on such day on such transactions as determined by BofA.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“Fee Letters” means that certain fee and payment agreement entered into among BofA, Wachovia and the Borrowers and that certain fee and payment agreement entered into between BofA and the Borrowers, each dated the Closing Date, in each case, as amended, supplemented or otherwise modified from time to time.
“Financial Statements” means, according to the context in which used, the financial statements referred to in Section 6.2 and Section 7.6 or any other financial statements required to be given to either of the Agents pursuant to this Agreement.
“Fiscal Month” means a calendar month. There are twelve Fiscal Months in each Fiscal Year.
“Fiscal Quarter” means a period of three calendar months (with respect to Xxxxx beginning on the first day of each January, April, July, and October) constituting a Person’s fiscal quarter for financial accounting purposes, with the first of such measurement periods beginning on the first day of each Fiscal Year and the last of such measurement periods ending on the last day of such Fiscal Year.
“Fiscal Year” means, with respect to any Person, such Person’s fiscal year for financial accounting purposes. The current Fiscal Year of Xxxxx will end on December 31, 2005, and each Fiscal Year of Xxxxx is the relevant calendar year.
“Fixed Assets” means, with respect to any Person, the Equipment and Real Estate of such Person.
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“Fixed Charge Coverage Ratio” means, as of the end of any Fiscal Quarter of Xxxxx, determined for Xxxxx and its Subsidiaries on a consolidated basis for the preceding four Fiscal Quarters, the ratio of EBITDA, divided by Fixed Charges.
“Fixed Charge Rental Fleet CapEx Percentage” means, at any time, that percentage which is (x) 100% minus (y) 85% of the Net Orderly Liquidation Percentage at such time with respect to rental fleet Inventory.
“Fixed Charge Rental Fleet Depreciation Percentage” means, at any time, that percentage which is (x) 100% minus (y) the Fixed Charge Rental Fleet CapEx Percentage at such time.
“Fixed Charges” means, with respect to any fiscal period, determined for Xxxxx and its Subsidiaries on a consolidated basis, without duplication, the sum of:
(a) cash Interest Expense,
(b) an amount equal to the product of (x) the Fixed Charge Rental Fleet CapEx Percentage in effect on the last day of such fiscal period times (y) the aggregate amount of Capital Expenditures made or incurred during such fiscal period with respect to Inventory which was in the rental fleet of Xxxxx or any of its Subsidiaries at any time on or prior to the last day of such fiscal period (excluding, in the case of the Obligated Parties, any such Capital Expenditures to the extent funded with proceeds from the sale of Inventory in the rental fleet of any Obligated Party permitted hereunder),
(c) an amount equal to the product of (x) the Fixed Charge Transportation CapEx Percentage in effect on the last day of such fiscal period times (y) the aggregate amount of Capital Expenditures made or incurred during such fiscal period with respect to Transportation Equipment (excluding, in the case of the Obligated Parties, any such Capital Expenditures to the extent (1) funded with Debt other than Revolving Loans, but including, without duplication, principal payments with respect to any such Debt or (2) funded with proceeds from the sale of Transportation Equipment of any Obligated Party permitted hereunder),
(d) an amount equal to the product of (x) the Fixed Charge Rental Fleet Depreciation Percentage in effect on the last day of such fiscal period times (y) depreciation expense taken in such fiscal period with respect to any Inventory which was in the rental fleet of Xxxxx or any of its Subsidiaries at any time on or prior to the last day of such fiscal period,
(e) an amount equal to the product of (x) the Fixed Charge Transportation Depreciation Percentage in effect on the last day of such fiscal period times (y) depreciation expense taken in such fiscal period with respect to Transportation Equipment owned by Xxxxx or any of its Subsidiaries at any time on or prior to the last day of such fiscal period,
(f) cash Distributions in respect of any Capital Stock,
(g) scheduled principal payments of Debt, plus
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(h) federal, state, local, and foreign cash income taxes (not less than zero), excluding deferred taxes.
“Fixed Charge Transportation CapEx Percentage” means, at any time, that percentage which is (x) 100% minus (y) 85% of the Net Orderly Liquidation Percentage at such time with respect to Transportation Equipment (it being agreed that until the first Equipment Appraisal is delivered to the Agents pursuant to Section 10.4, the Net Orderly Liquidation Percentage shall be deemed to be 100%).
“Fixed Charge Transportation Depreciation Percentage” means, at any time, that percentage which is (x) 100% minus (y) the Fixed Charge Transportation CapEx Percentage at such time.
“Funding Account” has the meaning specified in Section 2.2(d).
“Funding Date” means the date on which a Borrowing occurs.
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, generally accepted accounting principles and practices set forth from time to time in the 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 agencies with similar functions of comparable stature and authority within the U.S. accounting profession) that are applicable to the circumstances as of the date of determination.
“GE Intercreditor Agreement” has the meaning specified in Section 9.1(r).
“GE Sale and Leaseback Agreement” means that certain Master Lease Agreement, dated as of February 14, 2003, by and between Xxxxx and General Electric Capital Corporation, together with all annexes, exhibits and schedules thereto, including without limitation any equipment schedules and inventory addenda, as amended, supplemented or otherwise modified from time to time.
“General Intangibles” means, with respect to any Person, “general intangibles”, as such term is defined in the UCC, and all other choses in action and causes of action, intangible personal property of every kind and nature (other than Accounts), including all contract rights, payment intangibles, Proprietary Rights, corporate or other business records, inventions, designs, blueprints, plans, specifications, patents, patent applications, trademarks, service marks, trade names, trade secrets, goodwill, copyrights, computer software, customer lists, registrations, licenses, franchises, tax refund claims, any funds that may become due to such Person in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to such Person from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the lives of key employees on which such Person is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged equity interests or Investment Property and any
21
letter of credit, guarantee, claim, security interest or other security held by or granted to such Person.
“Goods” means “goods” as such term is defined in the UCC.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, and any department, agency, board, commission, tribunal, committee, or instrumentality of any of the foregoing.
“Guarantor” means each of (a) the Borrowers and (b) each other Person who becomes a party to any Guaranty Agreement pursuant to the terms of this Agreement, and “Guarantors” means two or more of the foregoing Persons, collectively.
“Guaranty” means, with respect to any Person, all obligations of such Person that in any manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any indebtedness, dividend, or other obligations of any other Person (the “guaranteed obligations”), or assure or in effect assure the holder of the guaranteed obligations against loss in respect thereof, excluding the endorsement of checks and other similar instruments in the ordinary course of business, but including any such obligations incurred through an agreement, contingent or otherwise: (a) to purchase the guaranteed obligations or any property constituting security therefor; (b) to advance or supply funds for the purchase or payment of the guaranteed obligations or to maintain a working capital or other balance sheet condition; or (c) to lease property or to purchase any debt or equity securities or other property or services. In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Guaranty Agreement” means each guaranty agreement in favor of the Collateral Agent to which any Person becomes a party pursuant to the terms of this Agreement, and “Guaranty Agreements” means all of such agreements, collectively.
“Hedge Agreement” means any and all transactions, agreements, or documents now existing or hereafter entered into, which provide for an interest rate, credit, commodity, or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging a Person’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency valuations, or commodity prices.
“Incremental Commitment” means, for each Incremental Lender, any commitment by such Incremental Lender to make Revolving Loans pursuant to Section 2.1(b) as agreed to by such Incremental Lender in the respective Incremental Commitment Agreement delivered pursuant to Section 2.1(c)(i); it being understood, however, that on each date upon which an Incremental Commitment of any Incremental Lender becomes effective, such Incremental Commitment of such Incremental Lender shall be added to (and thereafter become a part of) the
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Commitment of such Incremental Lender for all purposes of this Agreement as contemplated by Section 2.1(b).
“Incremental Commitment Agreement” means an Incremental Commitment Agreement substantially in the form of Exhibit G (appropriately completed and with such modifications as may be acceptable to the Administrative Agent).
“Incremental Lender” has the meaning specified in Section 2.1(c)(i).
“Incremental Revolving Loan” has the meaning specified in Section 2.1(b)(vii).
“Indemnified Liabilities” has the meaning specified in Section 15.11(a).
“Indemnified Person” has the meaning specified in Section 15.11(a).
“Instruments” means “instruments”, as such term is defined in the UCC.
“Intercompany Accounts” means all assets and liabilities, however arising, which are due to Xxxxx or a Subsidiary of Xxxxx from, which are due from Xxxxx or a Subsidiary of Xxxxx to, or which otherwise arise from any transaction by Xxxxx or a Subsidiary of Xxxxx with, any Affiliate of Xxxxx or a Subsidiary of Xxxxx.
“Intercreditor Agreement” means an Intercreditor Agreement in form and substance satisfactory to the Agents and their respective counsel, dated as of the Closing Date, by and among the Obligated Parties, the Collateral Agent, the Second Lien Agent and Wachovia, as control agent, as amended, restated, supplemented or otherwise modified from time to time.
“Interest Expense” means with respect to Xxxxx and its Subsidiaries for any fiscal period, the aggregate amount of interest required to be paid or accrued on all Debt of Xxxxx and its Subsidiaries during such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of Capital Leases or synthetic leases, and including unused commitment fees, facility fees, and similar fees and expenses in connection with the borrowing of money (including all fees and expenses incurred in connection with Hedge Agreements entered into with respect to any Debt).
“Interest Payment Date” means (a) the first day of each calendar month and (b) the Termination Date.
“Interest Period” means, with respect to any LIBOR Rate Revolving Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which such Loan is continued as or converted into a LIBOR Rate Revolving Loan, and ending on the date one, two, or three months thereafter as selected by a Borrower in a Notice of Borrowing or Notice of Continuation/Conversion, provided that:
(a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
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(b) 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 end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Stated Termination Date.
“Interest Rate” means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.
“Inventory” means “inventory”, as such term is defined in the UCC, and inventory, goods, and merchandise to be furnished under any contract of service or held for sale or lease, returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and supplies of any kind, nature, or description which are used or consumed in a Person’s business or used in connection with the packing, shipping, advertising, selling, or finishing of such goods, merchandise, and all documents of title or other Documents representing them.
“Inventory Appraisal” means with respect to a Borrower (a) on the Closing Date and until the first appraisal of the relevant class of Inventory of such Borrower is delivered to the Agents pursuant to Section 10.4, (i) the appraisal of Inventory of such Borrower consisting of spare parts and merchandise inventory or (ii) the appraisal of Inventory of such Borrower (other than Inventory consisting of spare parts and merchandise inventory), or both such appraisals, as the context may require, in each case prepared by Xxxxx Asset Services and dated June 30, 2005 and (b) thereafter, each appraisal of the relevant class of Inventory of such Borrower delivered to the Agents pursuant to Section 10.4.
“Investment” means any acquisition by an Obligated Party of property in exchange for cash or other property, whether in the form of an acquisition of Capital Stock, Debt, or other indebtedness or obligation, or the purchase or acquisition of any other assets or property, or a loan, advance, capital contribution, or subscription, excluding acquisitions in the ordinary course of business of such Obligated Party of Real Estate, Equipment, and Inventory to be used in the business of such Obligated Party. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the repayment of, or the refund of capital with respect to, the original principal amount of any such Investment).
“Investment Property” means “investment property”, as such term is defined in the UCC, and any (a) securities, whether certificated or uncertificated, (b) securities entitlements, (c) securities accounts, (d) commodity contracts, and (e) commodity accounts.
“IRS” means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.
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“Junior Lien Debt” means all obligations of Xxxxx or any of the other Obligated Parties under or in connection with the term debt issued by Xxxxx to the Junior Lien Lenders on the Original Closing Date in the original principal amount of $90,000,000 and secured by a junior Lien on the Collateral.
“Junior Lien Lenders” means Special Value Opportunities Fund, LLC and Special Value Expansion Fund, LLC and their respective successors and assigns.
“Latest Projections” means: (a) on the Closing Date and thereafter until the Agents receive new projections pursuant to Section 6.2(e), the monthly projections of the Obligated Parties’ financial condition, results of operations, cash flow, Borrowing Base, and Unused Availability, in each case for the period commencing on January 1, 2005 and ending on December 31, 2006 and the annual financial projections for Fiscal Years 2007-2010, each as delivered to the Agents prior to the Closing Date; and (b) thereafter, the projections most recently received by the Agents pursuant to Section 6.2(e).
“Leasehold Property” means any leasehold interest of any Obligated Party as lessee under any lease of real property.
“Lender” means any of the lending institutions signatory to this Agreement as specified on the signature pages hereto or in any Assignment and Acceptance as a “Lender”, the Incremental Lenders, the Administrative Agent to the extent of any Agent Advance outstanding, and BofA to the extent of any Non-Ratable Loan outstanding, and “Lenders” means any two or more of such Persons, collectively.
“Letter of Credit” has the meaning specified in Section 2.4(a).
“Letter of Credit Fee” has the meaning specified in Section 3.5.
“Letter of Credit Fee Percentage” means with respect to any Letter of Credit, on any date of determination, a per annum percentage equal to the Applicable Margin for LIBOR Rate Revolving Loans as of such date of determination, plus, during the existence of any Event of Default, an additional 2.00% per annum.
“Letter of Credit Issuer” means BofA or Wachovia or any Affiliate of BofA or Wachovia.
“Letter-of-Credit Rights” means “letter-of-credit rights”, as such term is defined in the UCC, and any rights to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is entitled to demand payment or performance.
“Letter of Credit Subfacility” means $10,000,000.
“Leverage Ratio” means, as of the end of any Fiscal Quarter of Xxxxx, determined for Xxxxx and its Subsidiaries on a consolidated basis, the ratio of (a) outstanding Debt of Xxxxx and its Subsidiaries as of the last day of such Fiscal Quarter, divided by (b) EBITDA for the four Fiscal Quarters most recently completed.
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“LIBOR Rate” means, for any Interest Period, with respect to LIBOR Rate Revolving Loans, the rate of interest per annum determined pursuant to the following formula:
LIBOR Rate |
|
= |
|
Offshore Base Rate |
|
|
|
|
|
|
1.00 - Eurodollar Reserve Percentage |
|
Where,
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, rounded upward to the next 1/8th of 1.00%) in effect on such day applicable to member banks under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental, or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Rate Revolving Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“Offshore Base Rate” means the rate per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the Offshore Base Rate shall be, for any Interest Period, the rate per annum appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. If for any reason none of the foregoing rates is available, the Offshore Base Rate shall be, for any Interest Period, the rate per annum determined by the Administrative Agent as the rate of interest at which Dollar deposits in the approximate amount of the LIBOR Rate Revolving Loan comprising part of such Borrowing would be offered by BofA’s London Branch to major banks in the offshore Dollar market at their request at or about 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period.
“LIBOR Rate Revolving Loan” means any portion of the Revolving Loans during any period in which such portion bears interest based on the LIBOR Rate.
“Lien” means (a) any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute, or contract, and including a security interest, charge, claim, or lien arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment, deposit arrangement, agreement, security agreement, conditional sale or trust receipt or a lease, consignment, or bailment for security purposes, (b) to the extent not included under clause (a) preceding, any reservation, exception, encroachment, easement, right-of-way, covenant, condition, restriction,
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lease, or other title exception or encumbrance affecting property, and (c) any contingent or other agreement to provide any of the foregoing.
“Loan Account” means the loan account of the Borrowers, which account shall be maintained by the Administrative Agent.
“Loan Documents” means, collectively, this Agreement, the Intercreditor Agreement, the GE Intercreditor Agreement, the Proprietary Rights Security Agreements, any Mortgages, any Aircraft Mortgage, any Guaranty Agreements, any agreements providing for Bank Products, the Fee Letters, any Incremental Commitment Agreement, and any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing, guaranteeing, or otherwise relating to any of the Obligations, any of the Collateral, or any other aspect of the transactions contemplated by this Agreement.
“Loans” means, collectively, all loans and advances provided for in Article 2.
“Majority Lenders” means, at any time, Lenders whose Pro Rata Shares aggregate more than 50.0% of the Commitments (or, if no Commitments are outstanding, of the Loans); provided, that the Commitment and Loans of any Defaulting Lender and such Defaulting Lender’s right to vote on any issue shall be excluded for the purpose of making any determination of Majority Lenders; provided, that so long as BofA and Wachovia are the Agents and the Pro Rata Shares of BofA and Wachovia aggregate more than 50.0% of the Commitments (or, if no Commitments are outstanding, of the Loans), “Majority Lenders” means at least three (3) Lenders whose Pro Rata Shares aggregate more than 50.0% of the Commitments (or, if no Commitments are outstanding, of the Loans).
“Management Agreement” means (a) with respect to any corporation, its bylaws, (b) with respect to any limited liability company or other similar entity, its operating agreement, (c) with respect to any limited partnership, its partnership agreement, and (d) with respect to any other entity, any agreement or other document similar in nature to any of the foregoing.
“Margin Stock” means “margin stock” as such term is defined in Regulation T, U, or X of the Federal Reserve Board.
“Material Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, (i) the Collateral or (ii) the operations, business, properties, prospects or condition (financial or otherwise) of Xxxxx and its Subsidiaries, taken as a whole; (b) a material impairment of the ability of any Obligated Party or any Affiliate of any Obligated Party to perform under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect, or enforceability against any Obligated Party or any Affiliate of any Obligated Party of any Loan Document to which it is a party.
“Material Contract” means any contract or other arrangement to which Xxxxx or any of its Subsidiaries is a party (other than the Loan Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.
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“Maximum Rate” means, at any time, the highest rate of interest the Lenders may legally contract for, charge, or receive in respect of the Obligations as allowed by any Requirement of Law.
“Maximum Revolver Amount” means $175,000,000 as such amount shall be increased by the aggregate amount of Incremental Commitments, if any, and as reduced in accordance with Section 4.3(f).
“Mortgage” means and includes any mortgage, deed of trust, deed to secure debt, assignment, or other instrument executed and delivered by any Obligated Party to or for the benefit of the Collateral Agent by which the Collateral Agent, for the benefit of the Credit Providers, acquires a Lien on any Real Estate of such Obligated Party, and all amendments, modifications, and supplements thereto, and “Mortgages” means two or more of such mortgages, deeds of trust, deeds to secure debt, assignments, and other instruments, as the context requires.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that is or was at any time during the current calendar year or the immediately preceding six calendar years contributed to by an Obligated Party or any ERISA Affiliate.
“Negative Pledge” means any agreement, contract, or other arrangement whereby any Obligated Party is prohibited from, or would otherwise be in default as a result of, creating, assuming, incurring, or suffering to exist, directly or indirectly, any Lien on any of its assets in favor of the Collateral Agent under the Loan Documents.
“Net Amount of Eligible Accounts” means, at any time, without duplication, the gross amount of Eligible Accounts, less sales, excise, or other similar taxes, and less returns, discounts, claims, credits, allowances, accrued rebates, offsets, deductions, counterclaims, disputes, and other defenses of any nature at any time issued, owing, granted, outstanding, available, or claimed.
“Net Book Value” means, with respect to any item of Eligible Rental and Sale Equipment or Eligible Transportation Equipment of a Borrower, the cost to such Borrower of such item of Eligible Rental and Sale Equipment or Eligible Transportation Equipment, as the case may be, less the accumulated depreciation taken by such Borrower thereon, all as reflected in the books and records of such Borrower.
“Net Orderly Liquidation Percentage” means (a) with respect to any class of Inventory of a Borrower at any time, the ratio (expressed as a percentage) computed by dividing (i) (x) if such percentage is being determined on the Closing Date or on any date prior to the first delivery of an Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) required pursuant to Section 10.4, the net recovery value of such class of Inventory of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) delivered to the Agents prior to the Closing Date and (y) if such percentage is being determined on or after the date of the first delivery of an Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) required pursuant to Section 10.4, the net recovery value of such class of Inventory of such Borrower (which in any event shall give effect to all costs and expenses of
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liquidation), as set forth in the Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) most recently delivered to the Agents pursuant to Section 10.4 by (ii) the value of such class of Inventory of such Borrower, valued at net book value, as set forth in the corresponding Inventory Appraisal and (b) with respect to Transportation Equipment of a Borrower at any time, (x) on the Closing Date or on any date prior to the first delivery of an Equipment Appraisal of such Borrower’s Transportation Equipment pursuant to Section 10.4, zero, and (y) if such percentage is being determined on or after the date of the first delivery of an Equipment Appraisal of such Borrower’s Transportation Equipment pursuant to Section 10.4, the ratio (expressed as a percentage) computed by dividing (i) the net recovery value of the Transportation Equipment of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Equipment Appraisal of such Borrower’s Transportation Equipment most recently delivered to the Agents pursuant to Section 10.4 by (ii) the value of the Transportation Equipment of such Borrower, valued at net book value, as set forth in the corresponding Equipment Appraisal.
“Net Orderly Liquidation Value” means (x) with respect to the applicable class of Eligible Inventory of a Borrower at any time, an amount equal to the product of (i) the value of such class of Eligible Inventory of such Borrower at such time valued at the lower of Net Book Value (or average cost in the case of Eligible Spare Parts Inventory) or market, multiplied by (ii) the Net Orderly Liquidation Percentage for such class of Eligible Inventory of such Borrower in effect at such time and (y) with respect to the Eligible Transportation Equipment of a Borrower at any time, an amount equal to the product of (i) the value of the Eligible Transportation Equipment of such Borrower at such time valued at the lower of Net Book Value or market, multiplied by (ii) the Net Orderly Liquidation Percentage for the Eligible Transportation Equipment of such Borrower in effect at such time.
“New Aircraft” means a Cessna Citation CJ3 that was ordered by Xxxxx prior to the Original Closing Date, with a purchase price of approximately $6,000,000.
“Non-Consenting Lender” has the meaning specified in Section 13.1(d).
“Non-Ratable Loan” and “Non-Ratable Loans” have the meanings specified in Section 2.2(i).
“Notice of Borrowing” has the meaning specified in Section 2.2(c).
“Notice of Continuation/Conversion” has the meaning specified in Section 3.2(b).
“Obligated Party” means each of the Borrowers and the Guarantors, individually, and “Obligated Parties” means two or more of such Persons, collectively.
“Obligations” means (a) all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by the Obligated Parties, or any of them, to the Administrative Agent, the Collateral Agent, BofA, Wachovia, the Letter of Credit Issuer, each Indemnified Person, and the Lenders, or any of them, arising under or pursuant to this Agreement or any of the other Loan Documents, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, loan, guaranty, indemnification, or otherwise, whether direct or indirect, absolute or contingent,
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due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees (including Attorney Costs), filing fees, and any other sums chargeable to any Obligated Party hereunder or under any of the other Loan Documents, including, without limitation, post-petition interest whether or not such interest is an allowable claim in a bankruptcy, (b) all debts, liabilities, and obligations owing by the Obligated Parties, or any of them, now or hereafter arising from or in connection with the Letters of Credit and (c) all debts, liabilities, and obligations owing by the Obligated Parties, or any of them, now or hereafter arising from or in connection with Bank Products.
“Operating Lease”, as applied to any Person, means any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease other than any such lease under which that Person is the lessor and excluding Re-Rental Leases.
“Organization Certificate” means, (a) with respect to any corporation, its articles or certificate of incorporation, (b) with respect to any limited liability company or other similar entity, its certificate of formation or organization, (c) with respect to any limited partnership, its certificate of limited partnership, and (d) with respect to any other entity, any certificate or other document similar in nature to any of the foregoing.
“Original Closing Date” means October 29, 2004.
“Original Loan and Security Agreement” has the meaning specified in the recitals of this Agreement.
“Other Taxes” means any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies (excluding, in the case of each Lender and each Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by such Lender’s or such Agent’s gross or net income) that arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any other Loan Documents.
“Participant” means any commercial bank, financial institution, or other Person that is not an Affiliate of the Obligated Parties who shall have been granted the right by any Lender to participate in the financing provided by such Lender under this Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. Xx. 000-00, 000 Xxxx. 000 (Xxx. 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to the functions thereof.
“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA that any Obligated Party or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a
30
Multiemployer Plan has made contributions at any time during the immediately preceding five plan years.
“Permitted Distributions” means with respect to a period during which Xxxxx is or was an S Corporation or a substantially similar pass-through entity for federal income tax purposes, the making of any Distribution in an amount equal to the aggregate net federal, state and local income and alternative minimum taxes (including federal and state estimated income taxes then payable) attributable to income from Xxxxx and any Subsidiaries for such period allocated to the holders of Capital Stock of Xxxxx (after taking into account the reduction in (i) federal income tax liability that will result from the payment of such state and local income taxes, and (ii) federal, state and local income and alternative minimum tax liability that has previously, or will for such tax period, result from the utilization of losses from prior periods attributable to the operations of Xxxxx and any Subsidiaries that has been allocated to the holders of Capital Stock of Xxxxx) and, if required to maintain such S Corporation or similar pass-through status, a proportionate distribution to all such holders.
“Permitted Investment” means any Investment made by an Obligated Party at a time when no Default or Event of Default exists or would result therefrom consisting of: (a) Investments in direct obligations of the U.S., or any agency thereof, or obligations guaranteed by the U.S., provided that such obligations mature within one year from the date of acquisition thereof; (b) Investments in certificates of deposit maturing within one year from the date of investment, bankers’ acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case issued by, created by, or with, a bank or trust company organized under the laws of the U.S. or any state thereof having capital and surplus aggregating at least One Hundred Million Dollars ($100,000,000); (c) Investments in commercial paper given a rating of “A2” or better by Standard & Poor’s Corporation or “P2” or better by Xxxxx’x Investors Service, Inc. and maturing not more than 90 days from the date of creation thereof; (d) Investments in Hedge Agreements entered into for the purpose of limiting the amount of interest payable under this Agreement; (e) Investments in mutual funds substantially all of the assets of which are comprised of securities of the types described in clause (a), clause (b), and clause (c) preceding; (f) Investments by any Obligated Party in any Borrower; (g) existing Investments listed on Schedule 1.1(B); (h) loans to executive officers and employees of the Obligated Parties (that are not also holders of equity of any Obligated Party); provided that (x) at the time of such loan no Default or Event of Default shall exist or result therefrom, (y) the aggregate amount of such loans made by the Obligated Parties and outstanding at any one time does not exceed $100,000, and (z) such loan does not violate any Requirement of Law; and (i) other Investments not included in clause (a) through clause (h) preceding in an aggregate amount at any time not exceeding $100,000.
“Permitted Liens” means:
(a) the Agent’s Liens;
(b) Liens, if any, that are described on Schedule 1.1(C) and Liens that secure Debt permitted pursuant to clause (c) of Section 8.12, provided that any Liens securing refunded, renewed, or extended Debt pursuant to such clause (c) shall not attach to any assets other than those assets securing the Debt being refunded, renewed, or extended;
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(c) Liens for (i) taxes, fees, assessments, or other charges of a Governmental Authority that are not delinquent and (ii) taxes, fees, assessments, or other charges of a Governmental Authority in an amount not in excess of $250,000, provided that the payment of such taxes, fees, assessments, or other charges of a Governmental Authority referenced in this clause (ii) that are due and payable is being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the applicable Obligated Party’s books and records and a stay of enforcement of any such Lien is in effect;
(d) Liens consisting of deposits made in the ordinary course of business in connection with, or to secure payment of, obligations under worker’s compensation, unemployment insurance, social security, and other similar laws, or to secure the performance of bids, tenders, or contracts (other than for the repayment of Debt) or to secure indemnity, performance, or other similar bonds for the performance of bids, tenders, or contracts (other than for the repayment of Debt) or to secure statutory obligations (other than Liens arising under ERISA or Environmental Liens) or surety or appeal bonds, or to secure indemnity, performance, or other similar bonds;
(e) Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords, and other similar Persons, provided that if any such Lien arises from the nonpayment of such claims or demands when due, such claims or demands do not exceed $250,000 in the aggregate and are being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the applicable Obligated Party’s books and records and a stay of enforcement of any such Lien is in effect;
(f) Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, rights of way, covenants running with the land, and other similar title exceptions or encumbrances affecting any Real Estate, provided that any such Liens do not in the aggregate materially interfere with the use of such Real Estate in the ordinary conduct of an Obligated Party’s business;
(g) Liens (i) arising from rights of setoff, but excluding any requirement for provision of cash collateral, in favor of BofA or Wachovia or any of their respective Affiliates arising from any agreement entered into in connection with any Obligated Party obtaining Bank Products from BofA or Wachovia or any of their respective Affiliates and (ii) arising in favor of the Letter of Credit Issuer under the applicable application and reimbursement agreement delivered to the Letter of Credit Issuer in connection with each Letter of Credit;
(h) Liens arising from judgments and attachments in connection with court proceedings, provided that (i) the attachment or enforcement of such Liens would not otherwise result in an Event of Default hereunder, (ii) such Liens are being contested in good faith by appropriate proceedings diligently pursued, (iii) adequate financial reserves have been established on the applicable Obligated Party’s books and records in accordance with GAAP, (iv) no material Collateral is subject to a material risk of loss or
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forfeiture, and (v) a stay of execution pending appeal or proceeding for review is in effect;
(i) Liens granted in favor of the Second Lien Agent to secure the repayment of the Second Lien Debt (or if all of the Second Lien Debt is repaid with proceeds of Refinancing Second Lien Debt, in favor of the holders of the Refinancing Second Lien Debt or an agent or trustee therefor to secure the repayment of the Refinancing Second Lien Debt), which Liens are junior and subordinate to the Agent’s Liens and are subject to the terms of the Intercreditor Agreement (or in the case of Liens securing Refinancing Second Lien Debt, an intercreditor agreement substantially identical to the Intercreditor Agreement or otherwise satisfactory to the Agent and the Majority Lenders);
(j) Liens granted in favor of General Electric Capital Corporation pursuant to the terms of the GE Sale and Leaseback Agreement;
(k) Liens that constitute purchase money Liens and secure Debt permitted under clause (h) of Section 8.12 including the lessors’ interests under Capital Leases permitted under clause (h) of Section 8.12, but only to the extent such Liens attach only to the Transportation Equipment, aircraft or computer or office equipment acquired by the incurrence of such Capital Leases and purchase money secured Debt, and Liens securing refinancings of such Debt permitted under clause (c) of Section 8.12; provided that such Liens are not extended to property other than the Transportation Equipment, aircraft or computer or office equipment securing the Debt being refinanced; and
(l) Liens that constitute purchase money Liens and secure Debt permitted under clause (i) of Section 8.12, but only to the extent such Liens attach only to the Inventory acquired by the incurrence of such purchase money secured Debt and not to any Account, including, in any event, any rental proceeds of any such Inventory;
provided that (i) none of such Liens listed in clause (b) through clause (h) or clause (k) through clause (l) preceding may attach to any Accounts of a Borrower, (ii) none of such Liens listed in clause (b) through clause (h) or clause (k) preceding, other than such Liens of a type and to the extent provided by clause (c) and clause (e) preceding, may attach to any Inventory owned by a Borrower and (iii) none of such Liens listed in clause (b) through clause (h), clause (j) or clause (l) preceding, other than such Liens of a type and to the extent provided by clause (c) and clause (e) preceding, may attach to any Transportation Equipment owned by a Borrower.
“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.
“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) that any Obligated Party sponsors or maintains or to which any Obligated Party makes, is making, or is obligated to make contributions and includes any Pension Plan.
“Pro Rata Share” means, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ Commitments, or if no Commitments are
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outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of Loans owed to such Lender and the denominator of which is the aggregate amount of the Loans owed to all Lenders, in each case giving effect to a Lender’s participation in Non-Ratable Loans and Agent Advances.
“Proprietary Rights” means licenses, franchises, permits, patents, patent rights, copyrights, works that are the subject matter of copyrights, trademarks, service marks, trade names, trade styles, patent applications, copyright applications, trademark and service xxxx applications, and licenses and rights related to any of the foregoing, and any other rights under any of the foregoing, extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing, and any rights to xxx for past, present and future infringement of any of the foregoing. With respect to the Obligated Parties, “Proprietary Rights” includes, without limitation, all of the items listed on Schedule 7.11.
“Proprietary Rights Security Agreements” means the assignments for security and special powers of attorney executed and delivered by one or more of the Obligated Parties to the Collateral Agent, for the benefit of the Credit Providers, to evidence the Agent’s Liens in each such Obligated Party’s present and future patents, trademarks, copyrights and related licenses and rights and/or provide certain rights with respect to such Liens.
“Real Estate” means, with respect to any Person, such Person’s now or hereafter owned or leased estates in real property (as applicable), including fees, leaseholds, and future interests, together with such Person’s now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto, and the easements appurtenant thereto.
“Refinancing Second Lien Debt” has the meaning specified in Section 8.12.
“Refinancing Second Lien Debt Documents” has the meaning specified in Section 8.12.
“Release” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of a Contaminant into the indoor or outdoor environment or into or out of any Real Estate or other property, including the movement of Contaminants through or in the air, soil, surface water, groundwater, or Real Estate or other property.
“Report” has the meaning specified in Section 14.18(a).
“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the 30 day notice requirement under ERISA has been waived in regulations issued by the PBGC.
“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule, or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
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“Re-Rental Lease” means any lease of property entered into by Xxxxx as lessee which property is immediately subleased by Xxxxx to another Person in the ordinary course of business of Xxxxx.
“Reserves” means any and all reserves that either of the Agents deems necessary in the exercise of its reasonable credit judgment to maintain with respect to the Collateral or any Obligated Party that limit the availability of Borrowings hereunder or that represent amounts the Administrative Agent, the Collateral Agent or any Lender may be obligated to pay in the future on behalf of an Obligated Party (including, without limitation, (a) Bank Product Reserves, (b) reserves for accrued, unpaid interest on the Obligations, (c) reserves for rent at each leased location where any Collateral or the books and records of an Obligated Party are maintained or kept, except to the extent a Collateral Waiver Agreement is delivered to the Agents for such leased location, (d) reserves for Inventory shrinkage, (e) Environmental Compliance Reserves, (f) reserves for customs charges and shipping charges relating to any Inventory in transit, (g) reserves for warehousemen’s or bailees’ charges, except to the extent a Collateral Waiver Agreement is delivered to the Agents by the applicable warehouseman or bailee, (h) reserves for taxes, fees, assessments, and other governmental charges, (i) a dilution reserve equal to the difference (if a positive number) between Dilution and 5% of the Net Amount of Eligible Accounts and (j) reserves for any amounts reflected in any Borrower’s ledger accounts under any of the following categories: “Equipment Down Long Term” or “Rebate Accrual”).
“Responsible Officer” means, with respect to any Obligated Party, the chief executive officer, the president, the chief financial officer, the treasurer, the director of finance, any vice president, or any other officer having substantially the same authority and responsibility as any of the foregoing.
“Revolving Loans” has the meaning specified in Section 2.2(a) and includes each Agent Advance, Non-Ratable Loan and Incremental Revolving Loan.
“Second Lien Agent” means Xxxxx Fargo Bank, N.A., as Trustee, in its capacity as collateral trustee for the Second Lien Lenders and its successors and assigns in such capacity from time to time.
“Second Lien Debt” has the meaning set forth in Section 9.1(q) hereof.
“Second Lien Debt Agreement” means the Indenture, dated as of August 18, 2005, between Xxxxx and Xxxxx Fargo Bank, N.A., as Trustee, providing for the issuance by Xxxxx of the Second Lien Notes, as such agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.
“Second Lien Debt Documents” means the Second Lien Debt Agreement, the Second Lien Notes, any security agreements in favor of the Second Lien Agent securing the payment of the Second Lien Debt and any other agreements between any of the Obligated Parties and the Second Lien Agent executed from time to time in connection with the Second Lien Debt Agreement, if any.
“Second Lien Lenders” means the holders of the Second Lien Debt.
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“Second Lien Notes” means the senior secured notes due 2013 issued by Xxxxx pursuant to the Second Lien Debt Agreement, as amended, restated, supplemented or substituted for from time to time in accordance with the terms thereof and hereof.
“Settlement” has the meaning specified in Section 14.15(a)(i).
“Settlement Date” has the meaning specified in Section 14.15(a)(i).
“Software” means “software”, as such term is defined in the UCC, other than software embedded in any category of Goods, including all computer programs and all supporting information provided in connection with a transaction related to any program.
“Solvent” means, when used with respect to any Person, that at the time of determination:
(a) the assets of such Person, at a fair valuation, are in excess of the total amount of its debts (including contingent liabilities);
(b) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured;
(c) it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and
(d) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Stated Termination Date” means the fifth Anniversary Date.
“Subsidiary” means, with respect to any Person (the “subject Person”), any corporation, association, partnership, limited liability company, joint venture, or other business entity of which more than 50.0% of the voting Capital Stock is owned or controlled directly or indirectly by the subject Person, or one or more of the Subsidiaries of the subject Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of an Obligated Party.
“Supporting Cash Deposit” has the meaning specified in Section 2.4(g).
“Supporting Letter of Credit” has the meaning specified in Section 2.4(g).
“Supporting Obligations” means “supporting obligations”, as such term is defined in the UCC, including letters of credit and guaranties issued in support of Accounts, Chattel Paper, Documents, General Intangibles, Instruments, or Investment Property.
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“Syndication Agent” means Wachovia, solely in its capacity as a syndication agent.
“Taxes” means any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto, excluding, in the case of the Administrative Agent, each Lender and the Collateral Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by the Administrative Agent’s, such Lender’s or the Collateral Agent’s net income (or on gross income where such tax is in lieu of a tax on net income and is not a withholding tax) in any jurisdiction (whether federal, state, or local and including any political subdivision thereof) under the laws of which the Administrative Agent, such Lender or the Collateral Agent, as the case may be, is organized or maintains a lending office or where the contacts with such jurisdiction (other than the Loan Documents or events contemplated by the Loan Documents) would otherwise subject the Administrative Agent, such Lender or the Collateral Agent, as the case may be, to taxes on such net income.
“Termination Date” means the earliest to occur of (a) the Stated Termination Date, (b) the date the Commitments are terminated (i) by the Borrowers pursuant to Section 4.2 or (ii) pursuant to Section 11.2, and (c) the date this Agreement is otherwise terminated for any reason whatsoever pursuant to the terms of this Agreement.
“Test Period” means, if a Trigger Event shall occur, each period of four consecutive fiscal quarters of Xxxxx (taken as one accounting period) ending on each of (x) the last day of the fiscal quarter of Xxxxx most recently ended prior to the occurrence of such Trigger Event for which Financial Statements for Xxxxx and its Subsidiaries have been delivered to the Administrative Agent pursuant to Section 6.2(a) or 6.2(b)(i) and (y) the last day of each fiscal quarter of Xxxxx after the fiscal quarter referred to in clause (x) ending prior to or during the Trigger Event Compliance Period for such Trigger Event.
“Time Utilization” means the ratio, calculated on a monthly basis for Xxxxx and its Subsidiaries, of (i) the average number of units on rent during such month divided by (ii) the average number of units available for rent during such month.
“Title Company” means one of more title insurance companies reasonably satisfactory to the Agents.
“Transaction Documents” means, collectively, the Loan Documents, the Second Lien Debt Documents, the Refinancing Second Lien Debt Documents (if any) and all other documents, instruments and agreements executed and/or delivered in connection therewith.
“Transportation Equipment” means each of the following types of licensed vehicles and trailers owned by any Obligated Party so long as they are not included in the rental fleet available for rental to third parties: (a) vehicles and trailers used for delivery, (b) vehicles used for service and (c) vehicles used by employees for transportation.
“Trigger Event” means for any reason Excess Availability is less than $25,000,000 at any time.
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“Trigger Event Compliance Period” means the period commencing on the occurrence of a Trigger Event and continuing until such time as Excess Availability is greater than $25,000,000 for thirty (30) consecutive calendar days.
“UCC” means the Uniform Commercial Code (or any successor statute), as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests; provided that to the extent that the UCC is used to define any term herein or in any other documents and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term as contained in Article or Division 9 shall govern.
“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“Unused Availability” means, at any time, the Borrowing Base minus the Aggregate Revolver Outstandings.
“Unused Letter of Credit Subfacility” means an amount equal to the Letter of Credit Subfacility, minus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit, plus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all Letters of Credit.
“Unused Line Fee” has the meaning specified in Section 3.4.
“U.S.” means the United States of America.
“Wachovia” has the meaning specified in the introductory paragraph of this Agreement.
“Waived” means waived in accordance with Section 13.1.
“Wholly-Owned Subsidiary” means, with respect to any Person (the “subject Person”), a Subsidiary all of the issued and outstanding Capital Stock (other than directors’ qualifying shares) of which are owned by the subject Person or one or more of the subject Person’s other Wholly-Owned Subsidiaries or by the subject Person and one or more of the subject Person’s Wholly-Owned Subsidiaries.
Section 1.2 Accounting Terms. Any accounting term used in this Agreement shall have, unless otherwise specifically provided herein, the meaning customarily given to such term in accordance with GAAP, and all financial computations in this Agreement shall be computed, unless otherwise specifically provided herein, in accordance with GAAP as consistently applied and using the same method for inventory valuation as used in the preparation of the Financial Statements. If at any time any change in GAAP would affect the computation of any financial covenant or requirement set forth in any Loan Document, and any of the Obligated Parties, either of the Agents or the Majority Lenders shall request, the Agents, the Lenders and the Obligated Parties shall negotiate in good faith to amend such covenant or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority
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Lenders and the Agents); provided that, until so amended, (a) such covenant or requirement shall continue to be determined in accordance with GAAP prior to such change and (b) the Obligated Parties shall provide to the Agents (with sufficient copies to the Administrative Agent for distribution to each Lender) Financial Statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
Section 1.3 Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. Terms used herein that are defined in the UCC and are not otherwise defined herein shall have the meanings specified therefor in the UCC.
(b) The words “hereof,” “herein,” “hereunder,” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement. Section, Schedule, and Exhibit references are to this Agreement unless otherwise specified. The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices, and other writings, however evidenced. The term “including” is not limiting and means “including, without limitation.” In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.” The word “or” is not exclusive.
(c) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, and other modifications thereto, but only to the extent such amendments, restatements, and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation.
(d) The captions and headings of this Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation of this Agreement and the other Loan Documents.
(e) This Agreement and the other Loan Documents may use several different limitations, tests, or measurements to regulate the same or similar matters. All such limitations, tests, and measurements are cumulative and shall each be performed in accordance with their terms.
(f) For purposes of Section 11.1, a breach of a financial covenant contained in Section 8.21 shall be deemed to have occurred as of any date of determination thereof by either of the Agents or as of the last day of any specified measuring period, regardless of when the Financial Statements reflecting such breach are delivered to either of the Agents.
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Section 1.4 No Strict Construction. This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, each Agent, each Lender, and the Obligated Parties and are the products of all parties. Accordingly, this Agreement and the other Loan Documents shall not be construed against the Administrative Agent, the Collateral Agent, the Lenders, or the Obligated Parties merely because of their respective involvement in their preparation.
Section 1.5 No Novation. It is the intent of the parties hereto that this Agreement does not constitute a novation of the rights, obligations and liabilities of the respective parties (including the Obligations) existing under the Original Loan and Security Agreement or evidence payment of all or any of such obligations and liabilities, and such rights, obligations and liabilities shall continue and remain outstanding under the terms and conditions of, and as amended and restated by, this Agreement, and that this Agreement amends and restates in its entirety the Original Loan and Security Agreement. Without limiting the generality of the foregoing (i) all Revolving Loans outstanding under the Original Loan and Security Agreement shall on the Closing Date become Revolving Loans hereunder, (ii) all Letters of Credit under the Original Loan and Security Agreement shall on the Closing Date become Letters of Credit hereunder and (iii) all other Obligations outstanding under the Original Loan and Security Agreement shall on the Closing Date be Obligations under this Agreement. Each of the Borrowers and the other Obligated Parties hereby ratifies and confirms its grant of security interests and Liens in the Collateral (including, without limitation, any and all Collateral granted under the Original Loan and Security Agreement and the other Loan Documents) in which it has rights and confirms and agrees that such Collateral secures any and all of the Obligations, including, without limitation, the Revolving Loans.
The Borrowers acknowledge and agree that as of the close of business on August 17, 2005, the Aggregate Revolver Outstandings under and as defined in the Original Loan and Security Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit issued under the Original Loan and Security Agreement) is $141,198,219.49. As of the date hereof, none of the Obligated Parties or any of their respective Affiliates has offset rights, counterclaims or defenses of any kind against any of their obligations, indebtedness or liabilities under the Original Loan and Security Agreement. As of the date hereof immediately prior to the amendment and restatement of the Original Loan and Security Agreement contemplated herein, there exists no Default or Event of Default under and as defined in the Original Loan and Security Agreement.
LOANS AND LETTERS OF CREDIT
(a) Subject to the terms and conditions of this Agreement, the Lenders agree to make available a credit facility for use by any one or more of the Borrowers from time to time during the term of this Agreement. Such credit facility shall be composed of a revolving credit facility consisting of Revolving Loans and Letters of Credit as described in Section 2.2 and Section 2.4.
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(b) So long as no Default or Event of Default then exists or would result therefrom, the Borrowers, with the prior written consent of the Administrative Agent as to new Lenders as contemplated under clause (b)(v)(z) below, shall have the right to request from time to time prior to the Termination Date that one or more Lenders (and/or one or more other Persons that will become Lenders as provided below) provide Incremental Commitments and, subject to the terms and conditions contained in this Agreement, make Incremental Revolving Loans, as the case may be, pursuant thereto; it being understood and agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement as provided in clause (c)(i) of this Section 2.1, such Lender shall not be obligated to fund any Incremental Revolving Loans;
(ii) any Lender (or, in the circumstances contemplated by clause (v) below, any other Person that qualifies as an Eligible Assignee) may so provide an Incremental Commitment without the consent of any other Lender;
(iii) the Incremental Commitments provided pursuant to this clause (b) shall be in a minimum aggregate amount (for all Lenders (including in the circumstances contemplated by clause (v) below, Eligible Assignees who will become Lenders)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof;
(iv) the aggregate amount of all Incremental Commitments permitted to be provided pursuant to this Section 2.1(b) shall not exceed $50,000,000;
(v) if, after the Borrowers have requested the then existing Lenders (other than Defaulting Lenders) to provide Incremental Commitments pursuant to this clause (b), the Borrowers have not received Incremental Commitments in an aggregate amount equal to that amount of Incremental Commitments which the Borrowers desire to obtain pursuant to such request (as set forth in the notice provided by the Borrowers as provided below), then the Borrowers may request Incremental Commitments from Persons that would qualify as Eligible Assignees hereunder in an aggregate amount equal to such deficiency, provided that (x) any such Incremental Commitment provided by any such Eligible Assignee shall be in a minimum amount (for such Eligible Assignee) of at least $1,000,000, (y) the fees to be paid to such Eligible Assignee shall be no greater than those paid (or which were offered) to the then existing Lenders providing (or which were requested to provide) the respective requested Incremental Commitments and (z) the prior written consent of the Administrative Agent shall be required with respect to each Person (not an existing Lender) which provides any Incremental Commitment;
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(vi) the prior written consent of each Letter of Credit Issuer to each new Lender providing an Incremental Commitment shall be required;
(vii) each Lender agreeing to provide an Incremental Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make revolving loans and advances (each, an “Incremental Revolving Loan” and, collectively, the “Incremental Revolving Loans”) to the Borrowers as specified in such Incremental Commitment Agreement and such Incremental Revolving Loans shall thereafter be deemed to be Revolving Loans for all purposes of this Agreement and the other Loan Documents;
(viii) Incremental Revolving Loans to be made pursuant to such Incremental Commitment Agreement shall mature on the Termination Date and shall bear interest at the same rates (i.e., have the same Applicable Margins) applicable to other Revolving Loans; and
(ix) all actions by the Borrowers pursuant to this clause (b) shall be taken in coordination with the Administrative Agent.
(c) In connection with the Incremental Commitments to be provided pursuant to preceding clause (b):
(i) the Borrowers, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental Commitment (each such Lender or Eligible Assignee, an “Incremental Lender”) shall execute and deliver to the Administrative Agent (with a copy to the Borrowers) an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur upon the delivery of such Incremental Commitment Agreement to the Administrative Agent, the obtaining of the consents required by Section 2.1(b) (v) and/or (vi), if and to the extent required pursuant to said clauses, the payment of any fees required in connection therewith and the satisfaction of any other conditions precedent that may be set forth in such Incremental Commitment Agreement;
(ii) the Borrowers and the other Obligated Parties shall have delivered such amendments, modifications and/or supplements to the Collateral Documents as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Collateral Documents;
(iii) the Administrative Agent shall receive an acknowledgment from the Obligated Parties that the Incremental Revolving Loans to be incurred pursuant to such Incremental Commitments are entitled to the benefits of the Collateral Documents, together with resolutions executed by (x) the Borrowers, authorizing the incurrence of such Incremental Revolving Loans pursuant to such
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Incremental Commitments and (y) each other Obligated Party, stating that the Incremental Revolving Loans to be incurred pursuant to such Incremental Commitments are entitled to benefits of the Collateral Documents;
(iv) the Borrowers shall deliver to the Administrative Agent a certificate of a Responsible Officer of Xxxxx certifying that the Incremental Commitment Agreements and the incurrence of Debt in connection therewith does not violate any of the Second Lien Debt Agreement or any of the other Second Lien Debt Documents;
(v) the Borrowers shall deliver to the Administrative Agent an opinion or opinions, in form and substance satisfactory to the Administrative Agent, from counsel to the Borrowers satisfactory to the Administrative Agent and dated the date of such Incremental Commitment Agreement, covering such of the matters set forth in the opinions of counsel delivered to the Administrative Agent on the Closing Date pursuant to Section 9.1 and such other matters as the Administrative Agent may reasonably request, including non-contravention of the Second Lien Debt Documents;
(vi) on the date of the making of such Incremental Revolving Loans, such Incremental Revolving Loans shall be added to (and form part of) each Borrowing of outstanding Revolving Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Revolving Loans, and so that the existing Lenders continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Incremental Revolving Loans; and
(vii) the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and shall deliver to each Lender a copy of same, and at such time Schedule 1.1(A) shall be deemed modified to reflect the Incremental Commitments of such Incremental Lender.
To the extent the provisions contained in clause (c)(vi) above require that Lenders making Incremental Revolving Loans add such Incremental Revolving Loans to then outstanding Borrowings of LIBOR Rate Revolving Loans, it is acknowledged that the effect thereof may result in such new Incremental Revolving Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBOR Rate Revolving Loans and which will end on the last day of such Interest Period). In connection therewith, the Borrowers may agree, in the respective Incremental Commitment Agreement, to compensate the Lenders making the new Incremental Revolving Loans for funding LIBOR Rate Revolving Loans during an existing Interest Period on such basis as may be agreed by the Borrowers and such respective Lender or Lenders.
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(a) Amounts. Subject to the terms and conditions of this Agreement, each Lender severally, but not jointly, agrees, upon a Borrower’s request from time to time on any Business Day during the period from the Original Closing Date to the Termination Date, to make revolving loans (the “Revolving Loans”) to the Borrowers in amounts not to exceed such Lender’s Pro Rata Share of the Commitments. The Lenders, however, in their unanimous discretion, may elect to make Revolving Loans that would cause the Aggregate Revolver Outstandings to exceed the Borrowing Base on one or more occasions, but if they do so, neither the Agents nor the Lenders shall be deemed thereby to have changed the limits of the Borrowing Base or to be obligated to exceed such limits on any other occasion. If any requested Revolving Loan exceeds the Unused Availability then the Lenders may refuse to make or may otherwise restrict the making of such Revolving Loan, subject to the authority of the Administrative Agent, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.2(j).
(b) [Intentionally Omitted.]
(c) Procedure for Borrowing.
(i) Each Borrowing of Revolving Loans shall be made upon a Borrower’s irrevocable written notice delivered to the Administrative Agent, in the form of a notice of borrowing in the form of Exhibit D or such other form as may be acceptable to the Agents in their sole discretion (any such notice being referred to herein as a “Notice of Borrowing”), which must be received by the Administrative Agent prior to 1:00 p.m. (New York time) (y) three Business Days prior to the requested Funding Date, in the case of LIBOR Rate Revolving Loans or (z) on the requested Funding Date, in the case of Base Rate Revolving Loans, specifying:
(A) the amount of the Borrowing, which in the case of LIBOR Rate Revolving Loans shall be in an amount that is not less than One Million Dollars ($1,000,000) or an integral multiple of One Million Dollars ($1,000,000) in excess thereof;
(B) the requested Funding Date, which must be a Business Day;
(C) whether the Revolving Loans requested are to be Base Rate Revolving Loans or LIBOR Rate Revolving Loans; provided that if such Borrower fails to specify whether any Revolving Loans are to be Base Rate Revolving Loans or LIBOR Rate Revolving Loans, such request shall be deemed a request for Base Rate Revolving Loans;
(D) if the requested Revolving Loans are to be LIBOR Rate Revolving Loans, the duration of the Interest Period; provided that if such Borrower fails to select the duration of the Interest Period with respect to any requested LIBOR Rate Revolving Loans, such Borrower shall be
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deemed to have requested such Revolving Loans be made as LIBOR Rate Revolving Loans with an Interest Period of one month in duration; and
(E) whether the proceeds of such Borrowing are to be deposited to the Funding Account or sent by wire transfer to a third party, in which case such Borrower shall provide the Administrative Agent with written wire transfer instructions satisfactory to the Administrative Agent;
provided that with respect to the Borrowing to be made on the Original Closing Date, such Borrowing will consist of Base Rate Revolving Loans only.
(ii) With respect to any request for Base Rate Revolving Loans, in lieu of delivering a Notice of Borrowing, a Borrower may give the Administrative Agent telephonic notice of such request for advances to the Funding Account not later than the required time specified in clause (i) preceding. The Administrative Agent at all times shall be entitled to rely on such telephonic notice in making any such Revolving Loans, regardless of whether any written confirmation is received by it.
(iii) Whenever checks or other items are presented to BofA for payment against the Funding Account or any other Deposit Account maintained by a Borrower with BofA in an amount greater than the then available balance in the Funding Account or such other Deposit Account, such presentation may, at the election of the Administrative Agent in its sole discretion, be deemed to be a request by the Borrowers for a Base Rate Revolving Loan on the date of such presentation in an amount sufficient to cover all such items presented in the Funding Account or such other Deposit Account on such date.
(iv) At the election of either of the Agents or the Majority Lenders, the Borrowers shall have no right to request LIBOR Rate Revolving Loans during the existence of any Default or Event of Default.
(d) Disbursement. On or prior to the Closing Date, the Borrowers shall have delivered to the Administrative Agent a notice setting forth the deposit account maintained with BofA (the “Funding Account”) to which the Administrative Agent is authorized by the Borrowers to transfer the proceeds of the Revolving Loans requested hereunder. Each of the Borrowers agrees that the Funding Account may be established in the name of any other Borrower, and hereby agrees that the Funding Account has been established for the benefit of all of the Borrowers for receipt of the proceeds of Revolving Loans hereunder. Each Borrower hereby appoints each other Borrower as its agent with respect to receipt of the proceeds of Revolving Loans in the Funding Account as contemplated herein. The Borrowers may designate a replacement Funding Account from time to time by written notice to the Administrative Agent. Any designation by the Borrowers of the Funding Account must be reasonably acceptable to the Administrative Agent.
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(e) Reliance Upon Authority; No Liability. The Administrative Agent is entitled to rely conclusively on any individual’s request for Revolving Loans on behalf of a Borrower, as long as the proceeds thereof are to be transferred to the Funding Account or according to such other instructions as may be provided to the Administrative Agent pursuant to Section 2.2(c)(i)(E). The Administrative Agent has no duty to verify the identity of any individual representing himself or herself as a person authorized by any Borrower to make such requests on its behalf. The Administrative Agent shall not incur any liability to the Borrowers as a result of acting upon any notice referred to in Section 2.2(c) or Section 2.2(d) which the Administrative Agent reasonably believes to have been given by an officer or other person duly authorized by a Borrower to request Revolving Loans on its behalf or for otherwise acting under this Section 2.2. The crediting of Revolving Loans to the Funding Account or wire transfer to such Person as a Borrower shall direct shall conclusively establish the obligation of the Borrowers to repay such Revolving Loans as provided herein.
(f) Notice Irrevocable. Any Notice of Borrowing (or telephonic notice in lieu thereof) made pursuant to Section 2.2(c) shall be irrevocable and the Borrowers shall be bound to borrow the funds requested therein in accordance therewith.
(g) Administrative Agent’s Election. Promptly after receipt of a Notice of Borrowing (or telephonic notice in lieu thereof), the Administrative Agent shall elect in its sole discretion to have the terms of Section 2.2(h), Section 2.2(i), or Section 2.2(j) apply to such requested Borrowing. If BofA declines in its sole discretion to make a Non-Ratable Loan pursuant to Section 2.2(i), the terms of Section 2.2(h) shall apply to the requested Borrowing unless such requested Borrowing is to be made by the Administrative Agent as an Agent Advance pursuant to Section 2.2(j).
(h) Making of Revolving Loans. If the Administrative Agent elects to have the terms of this Section 2.2(h) apply to a requested Borrowing, then promptly after receipt of a Notice of Borrowing or telephonic notice in lieu thereof, the Administrative Agent shall notify the Lenders by telecopy, telephone, or e-mail of the requested Borrowing. Each Lender shall transfer its Pro Rata Share of the requested Borrowing to the Administrative Agent, in immediately available funds, to the account from time to time designated by the Administrative Agent not later than 3:30 p.m. (New York time) on the applicable Funding Date. After receipt by the Administrative Agent of all proceeds of such requested Borrowing, it shall make the proceeds of such requested Borrowing available to the applicable Borrower on the applicable Funding Date by transferring same day funds to the Funding Account or as otherwise requested by such Borrower in accordance with Section 2.2(c)(i)(E). Unless the Lenders in their unanimous discretion consent otherwise, no Borrowing under this clause (h) shall be permitted if the requested Borrowing exceeds the Unused Availability on the applicable Funding Date prior to giving effect to such requested Borrowing.
(i) Making of Non-Ratable Loans. If the Administrative Agent elects, with the consent of BofA, in its capacity as a Lender, to have the terms of this Section 2.2(i) apply to a requested Borrowing, BofA shall make a Revolving Loan in the amount of such requested Borrowing available to the Borrowers on the applicable Funding Date by
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transferring same day funds to the Funding Account or as otherwise requested by the applicable Borrower in accordance with Section 2.2(c)(i)(E). Each Revolving Loan made solely by BofA pursuant to this Section 2.2(i) is referred to hereinafter as a “Non-Ratable Loan,” and such Revolving Loans are collectively referred to as the “Non-Ratable Loans.” Each Non-Ratable Loan shall be subject to all the terms and conditions applicable to other Revolving Loans except that all payments of principal and interest thereon shall be payable to BofA solely for its own account. The aggregate amount of Non-Ratable Loans outstanding at any time shall not exceed $10,000,000. The Administrative Agent shall not request BofA to make any Non-Ratable Loan if (A) the Administrative Agent has received written notice from any Lender that one or more of the applicable conditions precedent set forth in Article 9 will not be satisfied on the requested Funding Date for the applicable Borrowing or (B) the Administrative Agent has actual knowledge (based solely on the Borrowing Base Certificate most recently delivered to it or written notice from any Lender thereof) that the requested Borrowing exceeds the Unused Availability on the applicable Funding Date prior to giving effect to such requested Borrowing. The Non-Ratable Loans shall be secured by the Agent’s Liens in and to the Collateral and shall constitute Base Rate Revolving Loans and Obligations hereunder.
(j) Agent Advances. Subject to the limitations set forth below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in its sole discretion in such capacity, after the occurrence of a Default or an Event of Default or at any time that any of the other conditions precedent set forth in Article 9 have not been satisfied, to make Base Rate Revolving Loans to the Borrowers or any Borrower on behalf of the Lenders in an aggregate amount outstanding at any time not to exceed $10,000,000 which the Administrative Agent, in its reasonable business judgment, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations (including through the Borrowers using any proceeds of such Revolving Loans to pay payroll and associated tax obligations), or (iii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including costs, fees, and expenses as described in Section 15.7 (any of such advances are herein referred to as “Agent Advances”); provided that after giving effect to the making of any Agent Advance, the Aggregate Revolver Outstandings shall not exceed the Maximum Revolver Amount. The Majority Lenders may at any time revoke the authorization of the Administrative Agent to make Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the receipt by the Administrative Agent thereof. The Agent Advances shall be secured by the Agent’s Liens in and to the Collateral and shall constitute Base Rate Revolving Loans and Obligations hereunder.
Section 2.3 [Intentionally Omitted.]
Section 2.4 Letters of Credit.
(a) Agreement to Cause to Issue. Subject to the terms and conditions of this Agreement, the Agents agree to cause the Letter of Credit Issuer to issue for the account
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of any of the Borrowers (whether one or more) one or more commercial/documentary and standby letters of credit (each a “Letter of Credit” and collectively, the “Letters of Credit”) from time to time during the term of this Agreement.
(b) Amounts; Outside Expiration Date. The Agents shall not cause to be issued any Letter of Credit at any time if: (i) the maximum face amount of the requested Letter of Credit is greater than the Unused Letter of Credit Subfacility at such time; (ii) the maximum undrawn amount of the requested Letter of Credit and all commissions, fees, and charges due from such Borrower in connection with the opening thereof exceeds the Unused Availability prior to giving effect to issuance of such requested Letter of Credit; (iii) such Letter of Credit has an expiration date later than 30 days prior to the Stated Termination Date; or (iv) such Letter of Credit has an expiration date later than twelve calendar months from the date of issuance for standby letters of credit and six calendar months from the date of issuance for commercial/documentary letters of credit, provided that any Letter of Credit issued hereunder may, subject to this clause (iv) and the other provisions of this Section 2.4, include an “evergreen” or automatic renewal provision of the type referenced in Section 2.4(d)(iii) without contravening the requirement contained in this Section 2.4(b).
(c) Other Conditions. In addition to being subject to the satisfaction of the applicable conditions precedent contained in Article 9, the obligation of the Agents to cause any Letter of Credit to be issued is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agents and the Letter of Credit Issuer:
(i) the Borrowers shall have delivered to the Letter of Credit Issuer, at such times and in such manner as the Letter of Credit Issuer may prescribe, an application in form and substance satisfactory to the Letter of Credit Issuer and reasonably satisfactory to each Agent for the issuance of the Letter of Credit and such other documents as may be required pursuant to the terms thereof, and the form, terms, and purpose of the proposed Letter of Credit shall be reasonably satisfactory to each Agent and the Letter of Credit Issuer (provided that in the event any term of such application or any other document is inconsistent with the terms of this Agreement and the Letter of Credit Issuer is either the same Person as an Agent or any Lender, then the terms of this Agreement shall be controlling); and
(ii) as of the date of issuance, no order of any court, arbitrator, or Governmental Authority shall purport by its terms to enjoin or restrain money center banks generally from issuing letters of credit of the type and in the amount of the proposed Letter of Credit, and no law, rule, or regulation applicable to money center banks generally and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over money center banks generally shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letter of Credit.
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(d) Issuance of Letters of Credit.
(i) Request for Issuance. Any Borrower that wishes to cause the issuance of a Letter of Credit shall notify each Agent and the Letter of Credit Issuer of such request for issuance at least three Business Days prior to the proposed issuance date. Such notice shall be irrevocable and must specify the original face amount of the Letter of Credit requested, the Business Day of issuance of such requested Letter of Credit, whether such Letter of Credit may be drawn in a single or in partial draws, the Business Day on which the requested Letter of Credit is to expire, the purpose for which such Letter of Credit is to be issued, and the beneficiary of the requested Letter of Credit. The applicable Borrower shall attach to such notice the proposed form of the Letter of Credit.
(ii) Responsibilities of the Agents; Issuance. As of the Business Day immediately preceding the requested issuance date of the Letter of Credit set forth in the notice from a Borrower pursuant to Section 2.3(d)(i), the Agents shall determine (A) the amount of the Unused Letter of Credit Subfacility and (B) the Unused Availability (based solely on the Borrowing Base Certificate most recently delivered to the Agents). If the face amount of the requested Letter of Credit is not greater than the Unused Letter of Credit Subfacility (prior to giving effect to issuance of such requested Letter of Credit) and the amount of such requested Letter of Credit and all commissions, fees, and charges due from the Borrower in connection with the opening thereof do not exceed the Unused Availability (prior to giving effect to issuance of such requested Letter of Credit and based solely on the Borrowing Base Certificate most recently delivered to the Agents), the Agents shall cause the Letter of Credit Issuer to issue the requested Letter of Credit on the requested issuance date if the other conditions hereof and of the application for such requested Letter of Credit are met.
(iii) Extensions and Amendments. The Agents shall not be obligated to cause the Letter of Credit Issuer to extend, renew, or amend any Letter of Credit issued pursuant hereto unless the requirements of this Section 2.4 are met as though a new Letter of Credit were being requested and issued. With respect to any Letter of Credit that contains any “evergreen” or automatic renewal provision, each Lender shall be deemed to have consented to any such extension or renewal unless such Lender shall have provided to each Agent written notice that such Lender declines to consent to any such extension or renewal at least 30 days prior to the date on which the Letter of Credit Issuer is entitled to decline to extend or renew such Letter of Credit; provided that, notwithstanding the foregoing, if all of the requirements of this Section 2.4 are met and no Default or Event of Default exists, no Lender may decline to consent to any such extension or renewal.
(e) Payments Pursuant to Letters of Credit. The Borrowers agree to reimburse the Letter of Credit Issuer immediately for any draw under any Letter of Credit and to pay the Letter of Credit Issuer the amount of all other charges and fees payable to the Letter of Credit Issuer under or in connection with any Letter of Credit immediately when due, irrespective of any claim, setoff, defense, or other right that any Borrower may have at
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any time against the Letter of Credit Issuer or any other Person. Each drawing under any Letter of Credit shall constitute a request by the Borrower for whose account such Letter of Credit was issued for a Borrowing of a Base Rate Revolving Loan in the amount of such drawing. The Funding Date with respect to such Borrowing shall be the date of such drawing.
(f) Indemnification; Exoneration; Power of Attorney.
(i) Indemnification. In addition to amounts payable as elsewhere provided in this Section 2.4, each Borrower agrees to protect, indemnify, pay, and save the Lenders, the Agents, and the Letter of Credit Issuer harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges, and expenses (including reasonable attorneys’ fees) that any Lender, either Agent, or the Letter of Credit Issuer may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit. The foregoing indemnity shall not apply to the Letter of Credit Issuer to the extent of any wrongful honor or dishonor of a drawing against any Letter of Credit or to the extent of any gross negligence or willful misconduct of the Letter of Credit Issuer as determined in a final, nonappealable judgment by a court of competent jurisdiction. The Borrowers’ obligations under this Section 2.4(f) shall survive payment of all other Obligations.
(ii) Assumption of Risk by the Borrowers. As among the Borrowers, the Lenders, the Agents, and the Letter of Credit Issuer, the Borrowers assume all risks of the acts and omissions of, or misuse of any of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the Lenders, the Agents, and the Letter of Credit Issuer shall not be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness, or legal effect of any document submitted by any Person in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of Credit, even if it should prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent, or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) the failure of the beneficiary of any Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; (D) 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; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (G) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; (H) any consequences arising from causes beyond the control of any of the Lenders, either of the Agents, or the Letter of Credit Issuer, including any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority; or (I) the Letter of Credit Issuer’s honor of a
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draw for which the draw or any certificate fails to comply in any respect with the terms of the Letter of Credit. None of the foregoing shall affect, impair, or prevent the vesting of any rights or powers of either Agent, any Lender, or, subject to Section 2.4(f)(iv), the Letter of Credit Issuer under this Section 2.4(f).
(iii) Exoneration. Without limiting the foregoing, no action or omission whatsoever by either Agent, any Lender, or the Letter of Credit Issuer under or in connection with any of the Letters of Credit or any related matters shall result in any liability of either Agent, any Lender, or the Letter of Credit Issuer to any Borrower, or relieve any Borrower of any of its obligations hereunder to any such Person.
(iv) Rights Against the Letter of Credit Issuer. Nothing contained in this Section 2.4(f) is intended to limit any Borrower’s rights, if any, with respect to the Letter of Credit Issuer that arise as a result of the letter of credit application and related documents executed by and between such Borrower and the Letter of Credit Issuer.
(v) Account Party. Each Borrower hereby authorizes and directs the Letter of Credit Issuer to name any Borrower as the “Account Party” in any Letter of Credit and to deliver to the Agents all instruments, documents, and other writings and property received by the Letter of Credit Issuer pursuant to each such Letter of Credit, and to accept and rely upon either Agent’s instructions and agreements with respect to all matters arising in connection with each such Letter of Credit or the application therefor.
(g) Supporting Letter of Credit; Cash Collateral. If, notwithstanding the provisions of Section 2.4(b) and Section 12.1, any Letter of Credit is outstanding upon the termination of this Agreement, then upon such termination the Borrowers shall deposit with the Collateral Agent, for the benefit of the Agents, the Letter of Credit Issuer, and the Lenders, with respect to each such Letter of Credit then outstanding, either (i) a standby letter of credit (a “Supporting Letter of Credit”) in form and substance satisfactory to each Agent, issued by an issuer satisfactory to the Agents in their sole discretion in an amount equal to 105% of the maximum undrawn amount of such Letter of Credit, plus any fees and expenses associated with such Letter of Credit, under which Supporting Letter of Credit the Collateral Agent is entitled to draw amounts necessary to reimburse the Agents, the Letter of Credit Issuer, and the Lenders for payments to be made by either of the Agents, the Letter of Credit Issuer, and any of the Lenders under such Letter of Credit and any fees and expenses associated with such Letter of Credit or (ii) cash (a “Supporting Cash Deposit”) in an amount equal to 105% of the maximum undrawn amount of such Letter of Credit, plus any fees and expenses associated with such Letter of Credit. Such Supporting Letter of Credit or Supporting Cash Deposit shall be held by the Collateral Agent, for the benefit of the Agents, the Letter of Credit Issuer, and the Lenders, as security for, and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining outstanding and the fees and expenses associated with such Letters of Credit.
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Section 2.5 Bank Products. Any Obligated Party may obtain Bank Products from BofA or Wachovia or any of BofA’s or Wachovia’s Affiliates, or, subject to the definition of Bank Products, another Lender or any of such Lender’s Affiliates, although no Obligated Party is required to do so. To the extent Bank Products are provided by an Affiliate of BofA, Wachovia or another Lender, the Obligated Parties agree to indemnify and hold the Agents and BofA, Wachovia or such other Lender, as applicable, harmless from any and all costs and obligations now or hereafter incurred by any of the Credit Providers which arise from any indemnity given by BofA, Wachovia or such other Lender, as applicable, to its Affiliates related to such Bank Products; provided, however, nothing contained herein is intended to limit any Obligated Party’s rights, with respect to BofA, Wachovia or such other Lender, as applicable, or its Affiliates, if any, that arise as a result of the execution of documents by and between such Obligated Party and BofA, Wachovia or such other Lender, as applicable, or its Affiliates that relate to Bank Products. The agreement contained in this Section 2.5 shall survive termination of this Agreement. Each Obligated Party acknowledges and agrees that the obtaining of Bank Products from BofA, Wachovia , any other Lender or any of their respective Affiliates (a) is in the sole and absolute discretion of BofA, Wachovia, such other Lender or such Affiliate, and (b) is subject to all rules and regulations of BofA, Wachovia, such other Lender or such Affiliate.
INTEREST AND FEES
(a) Interest Rates. All outstanding Obligations shall bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on accrued interest thereon not paid when due) from the date made or incurred until paid in full in cash at a rate determined by reference to the Base Rate or the LIBOR Rate, as applicable, plus the Applicable Margin as set forth below, but not to exceed the Maximum Rate. If at any time Loans are outstanding with respect to which a Borrower has not delivered to the Administrative Agent a notice specifying the basis for determining the interest rate applicable thereto in accordance herewith, such Loans shall be Base Rate Revolving Loans and bear interest at a rate determined by reference to the Base Rate until notice to the contrary has been given to the Administrative Agent in accordance with this Agreement and such notice has become effective. Except as otherwise provided herein, the outstanding Obligations shall bear interest as follows:
(i) for all Base Rate Revolving Loans and other Obligations (other than LIBOR Rate Revolving Loans) at a fluctuating per annum rate equal to the lesser of (A) the Base Rate, plus the Applicable Margin or (B) the Maximum Rate; and
(ii) for all LIBOR Rate Revolving Loans at a per annum rate equal to the lesser of (A) the LIBOR Rate, plus the Applicable Margin or (B) the Maximum Rate.
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Each change in the Base Rate shall be reflected in the interest rate described in clause (i) preceding as of the effective date of such change. Subject to Section 3.3, all interest charges on the Obligations shall be computed on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365 day year).
(b) Interest Payments. The Borrowers shall pay to the Administrative Agent, for the benefit of the Lenders, accrued interest in arrears on each Interest Payment Date, as applicable.
(c) Default Rate. During the existence of any Default or Event of Default if either of the Agents or the Majority Lenders in their discretion so elect, the Obligations shall, subject to Section 3.3, bear interest at a rate per annum equal to the lesser of (i) the Default Rate applicable thereto or (ii) the Maximum Rate.
(d) Interest Periods. After giving effect to any Borrowing of any LIBOR Rate Revolving Loan, there may not be more than ten (10) different Interest Periods in effect hereunder.
Section 3.2 Continuation and Conversion Elections.
(a) A Borrower may upon irrevocable written notice to the Administrative Agent in accordance with Section 3.2(b):
(i) provided that Borrowing of LIBOR Rate Revolving Loans is permitted pursuant to Section 2.2, elect, as of any Business Day, in the case of Base Rate Revolving Loans to convert any such Base Rate Revolving Loans (or any part thereof in an amount not less than One Million Dollars ($1,000,000), or that is in an integral multiple of One Million Dollars ($1,000,000) in excess thereof) into LIBOR Rate Revolving Loans;
(ii) provided that Borrowing of LIBOR Rate Revolving Loans is permitted pursuant to Section 2.2, elect, as of the last day of the applicable Interest Period, to continue any LIBOR Rate Revolving Loans having Interest Periods expiring on such day (or any part thereof) in an amount not less than One Million Dollars ($1,000,000), or that is in an integral multiple of One Million Dollars ($1,000,000) in excess thereof as LIBOR Rate Revolving Loans; or
(iii) elect, as of any Business Day subject to Section 5.4, in the case of LIBOR Rate Revolving Loans to convert any such LIBOR Rate Revolving Loans (or any part thereof not being continued pursuant to clause (ii) preceding) into Base Rate Revolving Loans;
provided that if at any time the aggregate amount of LIBOR Rate Revolving Loans in respect of any Borrowing is reduced, by payment, prepayment, or conversion of part thereof to be less than One Million Dollars ($1,000,000), such LIBOR Rate Revolving Loans shall automatically convert into Base Rate Revolving Loans; provided, further, that if the notice shall fail to specify the duration of the Interest Period of any LIBOR
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Rate Revolving Loan to result from any such continuation or conversion, such Interest Period shall be one month in duration.
(b) For any continuation or conversion pursuant to clause (a) preceding, the Borrowers shall deliver a notice of continuation/conversion in the form of Exhibit E or such other form as may be acceptable to the Agents, in their sole discretion (any such notice being referred to herein as a “Notice of Continuation/ Conversion”) to the Administrative Agent not later than 1:00 p.m. (New York time) at least three Business Days in advance of the Continuation/Conversion Date specifying:
(i) the proposed Continuation/Conversion Date;
(ii) the aggregate amount of such Loans to be continued or converted and, if continuing LIBOR Rate Revolving Loans, the specific Loans (or portions thereof) to be continued or converted;
(iii) the type of Loans resulting from the proposed continuation or conversion; and
(iv) the duration of any requested Interest Period, provided, however, the Borrowers may not select an Interest Period that ends after the Stated Termination Date.
(c) If upon the expiration of any Interest Period applicable to LIBOR Rate Revolving Loans, the Borrowers have failed to timely select a new Interest Period to be applicable to such LIBOR Rate Revolving Loans, the Borrowers shall be deemed to have elected to convert such LIBOR Rate Revolving Loans into Base Rate Revolving Loans effective as of the expiration date of such Interest Period.
(d) On or before the deadline set forth in clause (b) preceding, in lieu of delivering a Notice of Continuation/Conversion, the Borrowers may give the Administrative Agent telephonic notice of any request for a continuation or conversion. The Administrative Agent shall be entitled to rely on such telephonic notice in continuing or converting such Loans, regardless of whether any written confirmation is received.
(e) The Administrative Agent will promptly notify each Lender of its receipt of a Notice of Continuation/Conversion. All continuations and conversions shall be made ratably according to the respective outstanding principal amounts of the Loans held by each Lender with respect to which such notice was given.
(f) After giving effect to any continuation or conversion of any LIBOR Rate Revolving Loan, there may not be more than ten (10) different Interest Periods in effect hereunder.
(g) At the election of either of the Agents or the Majority Lenders, the Borrowers shall have no right to convert any Base Rate Revolving Loans into LIBOR Rate Revolving Loans or to continue any LIBOR Rate Revolving Loans as LIBOR Rate Revolving Loans during the existence of any Default or Event of Default.
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Section 3.3 Maximum Interest Rate. In no event shall any Interest Rate provided for in this Agreement exceed the Maximum Rate. If any Interest Rate, absent the limitation set forth in this Section 3.3, would otherwise exceed the Maximum Rate, then such Interest Rate shall be the Maximum Rate, and, if in the future, such Interest Rate would otherwise be less than the Maximum Rate, then such Interest Rate shall remain at the Maximum Rate until such time as the amount of interest paid hereunder equals the amount of interest which would have been paid if the Interest Rate had not been limited to the Maximum Rate. In the event that, upon payment in full of the Obligations, the total amount of interest paid or accrued under the terms of this Agreement is less than the total amount of interest which would, but for this Section 3.3, have been charged, paid, or accrued if the Interest Rate otherwise set forth in this Agreement had at all times been in effect, then the Borrowers shall, to the extent permitted by applicable law, pay the Administrative Agent, for the account of the Lenders, an amount equal to the excess of (a) the lesser of (i) the amount of interest which would have been charged, paid, or accrued if the Maximum Rate had, at all times, been in effect or (ii) the amount of interest which would have been charged, paid, or accrued had the Interest Rate otherwise set forth in this Agreement, at all times, been in effect over (b) the amount of interest actually charged, paid, or accrued under this Agreement. If a court of competent jurisdiction determines that either Agent and/or any Lender has charged, received, or demanded interest and other charges hereunder in excess of the Maximum Rate, such excess shall be deemed charged, received, or demanded on account of, and shall automatically be applied to reduce, the Obligations other than interest, in the inverse order of maturity, and if there are no Obligations outstanding, the applicable Agent and/or such Lender shall refund to the Borrowers (as applicable) such excess.
Section 3.4 Unused Line Fee. Subject to Section 3.3, until the Revolving Loans have been paid in full and this Agreement and the Commitments are terminated, the Borrowers agree to pay to the Administrative Agent, for the account of the Lenders in accordance with their respective Pro Rata Shares, on the first day of each calendar month and on the Termination Date, an unused line fee (the “Unused Line Fee”) computed at a rate per annum equal to 0.25%, multiplied by the amount by which (A) the average daily Maximum Revolver Amount exceeded (B) the sum of the average daily outstanding amount of the Revolving Loans other than Non-Ratable Loans and the average daily undrawn amount of all outstanding Letters of Credit during the immediately preceding calendar month or shorter period if calculated for the first calendar month following the Closing Date or on the Termination Date. Subject to Section 3.3, the Unused Line Fee shall be computed on the basis of a 360 day year for the actual number of days elapsed. For purposes of calculating the Unused Line Fee pursuant to this Section 3.4, any payment received by the Administrative Agent (if received prior to 12:00 noon (New York time)) shall be deemed to be credited to the Borrowers’ Loan Account on the Business Day such payment is received by the Administrative Agent.
Section 3.5 Letter of Credit Fees and Expenses.
(a) Subject to Section 3.3, the Borrowers agree to pay to the Administrative Agent for the account of the Lenders in accordance with their respective Pro Rata Shares a fee (the “Letter of Credit Fee”) equal to the Letter of Credit Fee Percentage, multiplied by the average undrawn amount of each Letter of Credit issued and outstanding hereunder. The Letter of Credit Fee shall be (i) computed on the basis of a 360 day year for the actual number of days elapsed and (ii) payable monthly in arrears on the first day
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of each month following any month in which a Letter of Credit was issued and/or in which a Letter of Credit remained outstanding and on the Termination Date.
(b) Subject to Section 3.3, the Borrowers agree to pay to the Letter of Credit Issuer, for its sole benefit, (i) all out-of-pocket costs, fees, and expenses incurred by the Letter of Credit Issuer in connection with the application for, processing, issuance, renewal, extension, or amendment of any Letter of Credit and (ii) a “fronting fee” in an amount equal to 0.125% of the face amount of such Letter of Credit on the date of issuance, renewal, or extension of each Letter of Credit.
Section 3.6 Other Fees. Subject to Section 3.3, the Borrowers agree to pay the Agents when due all other fees and expenses as set forth in the Fee Letters.
Section 3.7 Incremental Commitments. The Borrowers may agree to pay to any Incremental Lender such up-front fees, and amounts as contemplated by the last paragraph of Section 2.1, as are specified in the Incremental Commitment Agreement pursuant to which such Incremental Commitment has been provided, with such amounts to be payable at the times set forth in such Incremental Commitment Agreement. It is understood that the interest and regularly accruing fees with respect to the extensions of credit provided pursuant to any Incremental Commitment, as well as the regularly accruing fees with respect to any Commitment provided pursuant to any Incremental Commitment Agreements, shall be as provided in this Agreement.
PRINCIPAL PAYMENTS AND PREPAYMENTS
(a) Revolving Loans. The Borrowers shall repay the outstanding principal balance of the Revolving Loans, together with all other non-contingent Obligations, including all accrued and unpaid interest thereon, on the Termination Date (or with respect to any Bank Products, any applicable earlier date). The Borrowers may prepay the Revolving Loans, in whole or in part, at any time and from time to time and, subject to the terms of this Agreement, reborrow prior to the Termination Date. In addition, and without limiting the generality of the foregoing, the Borrowers shall immediately pay to the Administrative Agent, for the account of the Lenders, the amount, if any and without duplication, by which the Aggregate Revolver Outstandings exceed the Borrowing Base.
(b) [Intentionally Omitted.]
(c) Payments. All payments to be made by the Borrowers with respect to the Loans shall be made without setoff, recoupment, or counterclaim. Unless otherwise expressly provided herein, all payments by the Borrowers shall be made to the Administrative Agent, for the account of the Lenders, to the account designated by the Administrative Agent and shall be made in Dollars and in immediately available funds, no later than 12:00 noon (New York time) on the date specified herein. Any payment received by the Administrative Agent after such time shall be deemed to have been
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received on the following Business Day and any applicable interest or fee shall continue to accrue.
(d) LIBOR Rate Revolving Loan Payment Dates. Subject to the provisions set forth in the definition of Interest Period, whenever any payment is due on a day other than a Business Day, such payment shall be due on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.
Section 4.2 Termination of Credit Facility. The Borrowers may terminate this Agreement upon at least ten Business Days prior written notice thereof to the Agents, upon (a) the payment in full of all outstanding Revolving Loans, together with accrued and unpaid interest thereon, and the cancellation and return of all outstanding Letters of Credit (or alternatively with respect to each such Letter of Credit, the furnishing to the Collateral Agent of either a Supporting Cash Deposit or a Supporting Letter of Credit as required by Section 2.4(g)), (b) the payment of the Early Termination Fee defined in the following sentence (if applicable), and (c) the payment in full of all reimbursable expenses and other Obligations (including any amount due under Section 5.4) together with accrued and unpaid interest thereon. Subject to Section 3.3, if this Agreement is terminated at any time prior to the second Anniversary Date, whether pursuant to this Section or pursuant to Section 11.2, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders, an early termination fee (the “Early Termination Fee”) determined in accordance with the following table:
|
Period
during which early termination |
|
Early Termination Fee |
|
On or prior to the first Anniversary Date |
|
1.00% of the Maximum Revolver Amount |
|
After the first Anniversary Date, but prior to the second Anniversary Date |
|
0.50% of the Maximum Revolver Amount |
Notwithstanding the foregoing, no such Early Termination Fee shall be payable in the event this Agreement is terminated in connection with refinancing of the Obligations in a transaction in which (i) BofA or any of its Affiliates and (ii) Wachovia or any of its Affiliates jointly arrange replacement financing; provided that each Lender (other than BofA and Wachovia) shall continue to be entitled to its Pro Rata Share of such Early Termination Fee unless such Lender shall have been given the opportunity to participate in such replacement financing and such replacement financing shall be on market terms or terms materially the same as the terms of this credit facility. The Maximum Revolver Amount shall not be reduced except in connection with termination of the Commitments and payment in full of all Obligations as provided by this Section 4.2 or as otherwise provided in Section 4.3(f) or Section 11.2.
Section 4.3 Mandatory Prepayment of the Loans. Without limiting Section 4.1, each of the Borrowers agrees to make a prepayment with respect to the outstanding Loans and other Obligations as follows:
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(a) On any Business Day, if the Aggregate Revolver Outstandings exceed the Borrowing Base, the Borrowers shall immediately pay to the Administrative Agent, for the account of the Lenders, the amount (if any) of such excess for application to the principal amount of the Revolving Loans and, if after such application there remains any portion of such excess, such remaining unapplied amount shall be delivered to and held by the Collateral Agent as cash collateral for the Obligations (contingent or otherwise) with respect to outstanding Letters of Credit.
(b) All cash proceeds received by any Borrower from the Disposition or sale of Inventory or collection of Accounts in the ordinary course of business shall be applied to repayment of the Obligations promptly (and in any event within one Business Day of receipt) as specified in Section 4.6(c).
(c) The Borrowers shall pay to the Administrative Agent, for the account of the Lenders, promptly (and in any event within one Business Day of receipt) all net cash proceeds received by an Obligated Party in connection with any Disposition, excluding proceeds received pursuant to clause (b) preceding, for application to the Obligations as provided in Section 4.6(c). As used in this Section 4.3(c), “net cash proceeds” means the proceeds of any applicable Disposition, minus (i) commissions and other reasonable and customary transaction costs, fees, and expenses properly attributable to such transaction and payable by such Obligated Party in connection therewith (in each case, paid to non-Affiliates), (ii) transfer taxes and (iii) amounts payable to holders of Liens (to the extent such Liens constitute Permitted Liens hereunder and such Liens are senior to the Agent’s Liens), if any, on the property subject to such Disposition to the extent the documentation governing such senior Liens required such payment to such holders upon such Disposition.
(d) All cash payments or other cash proceeds received by any Obligated Party constituting proceeds of a Distribution, loan, or other advance (other than a Distribution, loan or advance by an Obligated Party to an Obligated Party) to such Obligated Party, excluding proceeds of Revolving Loans, the Second Lien Debt or the Refinancing Second Lien Debt, such proceeds which are proceeds of a loan or advance from one Borrower to another Obligated Party, and other than such proceeds which are proceeds of a loan or advance permitted under clause (c) through clause (j) of Section 8.12, shall be paid to the Administrative Agent promptly upon such receipt, for application to the Obligations as specified in Section 4.6(c).
(e) Upon any issuance of any Capital Stock of any Obligated Party, no later than two Business Days after such issuance, the Borrowers shall make a prepayment in an amount equal to the proceeds of such issuance, net of underwriting discounts, commissions, and other reasonable and customary transaction costs, fees, and expenses properly attributable to such transaction and payable by such Obligated Party in connection therewith (in each case paid to Persons who are not Affiliates of any Obligated Party) for application to the Obligations in accordance with Section 4.6(c).
(f) In any event, if any Obligated Party receives (i) net cash proceeds in connection with any Disposition, (ii) cash payments or other cash proceeds of a
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Distribution, loan, or other advance to such Obligated Party or (iii) proceeds of any issuance of Capital Stock, on or after the Closing Date, any such proceeds or payments shall be applied to the payment of the Revolving Loans to the extent necessary to avoid any requirement under any Second Lien Debt Documents or Refinancing Second Lien Debt Documents to prepay or redeem (or to make any offer to prepay or redeem) any portion of the Second Lien Debt or Refinancing Second Lien Debt, together with a permanent reduction of the Commitments and the Maximum Revolver Amount in the amount of any such application to the Revolving Loans (such reduction to result in each Lender’s Commitment being permanently reduced by its Pro Rata Share of such reduction).
No provision contained in this Section 4.3 shall constitute a consent to an asset disposition, Distribution, loan, advance or equity issuance that is otherwise not permitted by the terms of this Agreement.
Section 4.4 LIBOR Rate Revolving Loan Prepayments. In connection with any prepayment, if any LIBOR Rate Revolving Loans are prepaid prior to the expiration date of the Interest Period applicable thereto, the Borrowers shall pay to the Administrative Agent, for the benefit of the Lenders, the amounts described in Section 5.4, provided that the Borrowers shall not be required to pay the amounts described in Section 5.4 in connection with any Lender’s entering into an Assignment and Acceptance.
Section 4.5 Payments as Revolving Loans. At the election of the Administrative Agent, all payments of principal, interest, reimbursement obligations in connection with Letters of Credit, fees, premiums, reimbursable expenses (including all reimbursement for expenses pursuant to Section 15.7), other sums payable under the Loan Documents, and any and all amounts equal to the excess of checks and other items presented to BofA for payment against the Funding Account or any other Deposit Account maintained by a Borrower with BofA in an amount greater than the then available balance in such Deposit Account may be paid with the proceeds of Revolving Loans made hereunder whether made following a request for such purpose by the Borrowers pursuant to Section 2.2 or pursuant to a deemed request as provided in this Section 4.5. The Borrowers hereby irrevocably authorize the Administrative Agent to charge the Loan Account for the purpose of paying all amounts from time to time due under the Loan Documents (including as described in this Section 4.5) and agree that all such amounts charged shall constitute Revolving Loans (including Non-Ratable Loans and Agent Advances) and that all such Revolving Loans shall be deemed to have been requested pursuant to Section 2.2; provided that, except as set forth in the succeeding sentence, so long as no Event of Default exists, the Administrative Agent shall not charge the Loan Account for expenses until 10 days have elapsed since the Administrative Agent has sent an invoice therefor to Xxxxx. In the event the Collateral Agent is required to make any payment to Xxxxx Fargo Bank, N.A. (“WFB”) pursuant to the payoff letter delivered by WFB to Xxxxx and the Collateral Agent on the Original Closing Date with respect to that certain Credit and Security Agreement, dated as of July 25, 2003, the Administrative Agent shall immediately charge the Loan Account for the purpose of reimbursing the Collateral Agent for all such payments and all such amounts charged shall constitute Revolving Loans.
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Section 4.6 Apportionment, Application, and Reversal of Payments.
(a) Principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Loans to which such payments relate held by each Lender) and payments of the fees shall, as applicable, be apportioned ratably among the Lenders, except for fees payable solely to BofA, Wachovia, the Agents or either of them and the Letter of Credit Issuer and except as provided in Section 13.1(c).
(b) Except as provided otherwise in this Agreement, all payments shall be remitted to the Administrative Agent or, if applicable, to the Collateral Agent, and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of any Obligated Party’s Accounts or any other Collateral received by the Administrative Agent or the Collateral Agent, shall be applied, ratably, subject to the other provisions of this Agreement, FIRST, to pay any fees, indemnities, or expense reimbursements then due to either of the Agents from any Obligated Party, SECOND, to pay any fees, indemnities, or expense reimbursements then due to any of the Credit Providers other than the Agents from any Obligated Party, THIRD, to pay interest then due in respect of the Loans, including Non-Ratable Loans and Agent Advances, FOURTH, to pay or prepay principal of the Non-Ratable Loans and the Agent Advances, FIFTH, to pay or prepay principal of the Revolving Loans (other than the Non-Ratable Loans and the Agent Advances) and unpaid reimbursement obligations in respect of Letters of Credit, SIXTH, during the existence of a Default or an Event of Default, to pay an amount to the Collateral Agent equal to 105% of the aggregate undrawn amount of all outstanding Letters of Credit and the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit, to be held as cash collateral for such Obligations, and SEVENTH, to the payment of any other Obligation including any amounts relating to Bank Products due to BofA, Wachovia, any other Lender or any of their respective Affiliates by any of the Obligated Parties. Subject to items “first” through “seventh” preceding, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations.
(c) Payments received pursuant to Section 4.3(b), Section 4.3(c), Section 4.3(d) and Section 4.3(e) shall be applied, ratably, subject to the other provisions of this Agreement, in the order of priority set forth for items “first” through “fifth” of clause (b) preceding at any time other than during the existence of a Default or an Event of Default, and during the existence of any Default or Event of Default, as specified in clause (b) preceding.
(d) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by a Borrower, or unless an Event of Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any LIBOR Rate Revolving Loan, except (i) on the expiration date of the Interest Period applicable to any such LIBOR Rate Revolving Loan or (ii) in the event, and only to the extent, that there are no outstanding Base Rate Revolving Loans and, in any such event, the Borrowers shall pay the LIBOR breakage losses in accordance with Section 5.4.
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Section 4.7 Indemnity for Returned Payments. If after receipt of any payment or of any proceeds of Collateral that is applied to the payment of all or any part of the Obligations, any Credit Provider is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Credit Provider and the Borrowers shall be liable to pay to the Administrative Agent, for the benefit of the Credit Providers, and each Borrower hereby indemnifies the Credit Providers and holds the Credit Providers harmless for the amount of such payment or proceeds surrendered. The provisions of this Section 4.7 shall be and remain effective notwithstanding any release of Collateral or guarantors, cancellation or return of Loan Documents, or other contrary action that may have been taken by any Credit Provider in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the Credit Providers’ rights under this Agreement and the other Loan Documents and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable. The provisions of this Section 4.7 shall survive the termination of this Agreement.
Section 4.8 Administrative Agent’s and the Lenders’ Books and Records; Monthly Statements. The Administrative Agent shall record the principal amount of the Loans, the undrawn amount of all outstanding Letters of Credit, and the aggregate amount of unpaid reimbursement obligations outstanding with respect to the Letters of Credit from time to time on its books. In addition, each Lender may note the date and amount of each payment or prepayment of principal of such Lender’s Loans in its books and records. Failure by the Administrative Agent or any Lender to make any such notation shall not affect the obligations of the Borrowers with respect to the Loans or the Letters of Credit. The Borrowers agree that the Administrative Agent’s and each Lender’s books and records showing the Obligations and the transactions pursuant to this Agreement and the other Loan Documents shall be admissible in any action or proceeding arising therefrom, and shall constitute presumptive proof thereof, irrespective of whether any Obligation is also evidenced by a promissory note or other instrument. The Administrative Agent will provide to the Borrowers and the Lenders a monthly statement of Loans, payments, and other transactions pursuant to this Agreement. Such statement shall be deemed correct, accurate, and binding on the Borrowers and an account stated (except for reversals and reapplications of payments made as provided in Section 4.6 and corrections of errors discovered by either of the Agents), unless a Borrower notifies the Administrative Agent in writing to the contrary within 30 days after such statement is rendered. In the event a timely written notice of objections is given by a Borrower, only the items to which exception is expressly made will be considered to be disputed by the Borrowers.
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TAXES, YIELD PROTECTION AND ILLEGALITY
(a) Any and all payments by the Obligated Parties, or any of them, to either Agent or any Lender under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any Taxes. In addition, subject to Section 14.10(c), the Obligated Parties shall pay all Other Taxes.
(b) The Obligated Parties agree to indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 5.1) paid by the Administrative Agent, the Collateral Agent or any Lender and any liability (including penalties, interest, additions to tax, and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days after the date the Administrative Agent, the Collateral Agent or any Lender makes written demand therefor.
(c) If an Obligated Party shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to the Administrative Agent, the Collateral Agent or any Lender, then:
(i) the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including, without limitation, deductions and withholdings applicable to additional sums payable under this Section 5.1) the Administrative Agent, the Collateral Agent or such Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made;
(ii) such Obligated Party shall make such deductions and withholdings;
(iii) such Obligated Party shall pay the full amount deducted or withheld to the relevant taxing authority or other authority in accordance with any applicable Requirement of Law; and
(iv) such Obligated Party shall also pay to the Administrative Agent, for the account of each Lender, or each Lender at the time interest is paid, all additional amounts that the respective Lender specifies as necessary to preserve the after-tax yield such Lender would have received if such Taxes or Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by any Obligated Party of Taxes or Other Taxes, such Obligated Party shall furnish to the Administrative Agent the
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original or a certified copy of a receipt evidencing payment thereof or other evidence of payment satisfactory to the Administrative Agent.
(e) If the Obligated Parties are required to pay additional amounts to any Lender pursuant to Section 5.1(c), then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate any such additional payment by the Obligated Parties that may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender.
(a) If any Lender determines that, after the date of this Agreement, the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make LIBOR Rate Revolving Loans, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make LIBOR Rate Revolving Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any LIBOR Rate Revolving Loan, the Borrowers shall, upon receipt of notice of such fact and demand from such Lender (with a copy to the Administrative Agent), prepay in full such LIBOR Rate Revolving Loans of such Lender then outstanding, together with accrued and unpaid interest thereon and amounts required under Section 5.4, either on the last day of the Interest Period thereof, if such Lender may lawfully continue to maintain such LIBOR Rate Revolving Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Revolving Loans. If the Borrowers are required to so prepay any LIBOR Rate Revolving Loans, then concurrently with such prepayment, the Borrowers shall borrow from the affected Lender, in the amount of such repayment, a Base Rate Revolving Loan. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the judgment of such Lender, otherwise be disadvantageous to such Lender.
Section 5.3 Increased Costs and Reduction of Return.
(a) If any Lender determines that due to either (i) the introduction of or any change in the interpretation of any law or regulation after the date of this Agreement or (ii) the compliance by such Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) made after the date of this Agreement, there shall be any increase in the cost to such Lender of agreeing to make or making, funding, or maintaining any LIBOR Rate Revolving Loans, then the Borrowers shall be liable for, and shall from time to time, within three Business Days of demand by such Lender (with a copy of such demand to be sent to the Administrative
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Agent), pay to the Administrative Agent, for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (to the extent it occurs after the date of this Agreement) (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance by such Lender or any corporation or other entity controlling such Lender with any Capital Adequacy Regulation, affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation or other entity controlling such Lender and (taking into consideration such Lender’s or such corporation’s or other entity’s policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment, loans, credits, or obligations under this Agreement, then, within three Business Days of demand by such Lender (with a copy of such demand to be sent to the Administrative Agent), the Borrowers shall pay to the Administrative Agent, for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender for such increase.
Section 5.4 Funding Losses. The Borrowers shall reimburse each Lender and hold each Lender harmless from any loss or expense that such Lender may sustain or incur as a consequence of:
(a) the failure of the Borrowers to make on a timely basis any payment of principal of any LIBOR Rate Revolving Loan;
(b) except as permitted by Section 5.5, the failure of the Borrowers to (i) borrow any requested LIBOR Rate Revolving Loan, (ii) continue any LIBOR Rate Revolving Loan, or (iii) convert a Base Rate Revolving Loan to a LIBOR Rate Revolving Loan, in each case, after any Borrower has given (or is deemed to have given) a Notice of Borrowing, a Notice of Continuation/Conversion, or any telephonic notice in lieu thereof with respect thereto; or
(c) the prepayment or other payment (including after acceleration thereof) of any LIBOR Rate Revolving Loans on a day that is not the last day of the relevant Interest Period;
including any such loss of anticipated profit and any loss or expense arising from the liquidation or reemployment of funds obtained by such Lender (but excluding loss of the Applicable Margin) to maintain its LIBOR Rate Revolving Loans or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary administrative fees, including a processing fee (the processing fee is currently Three Hundred Fifty Dollars ($350) but is subject to change from time to time by the Administrative Agent without notice), charged by the Administrative Agent or any Lender in connection with the foregoing.
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Section 5.5 Inability to Determine Rates. If the Administrative Agent determines that for any reason adequate and reasonable means do not exist for determining the LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Rate Revolving Loan or that the LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Rate Revolving Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Revolving Loans hereunder shall be suspended until the Administrative Agent revokes such notice in writing. Upon receipt of a notice pursuant to the first sentence of this Section 5.5, the Borrowers may revoke any Notice of Borrowing or Notice of Continuation/Conversion then submitted by any of them. If the Borrowers do not revoke any such Notice of Borrowing or Notice of Continuation/Conversion, the Lenders shall make, convert, or continue the Loans, as proposed by the Borrowers, in the amount specified in the applicable notice submitted by a Borrower, but such Loans shall be made, converted, or continued as Base Rate Revolving Loans instead of LIBOR Rate Revolving Loans.
Section 5.6 Certificate of the Affected Lender. If any Lender claims reimbursement or compensation under this Article 5, the affected Lender shall determine the amount thereof and shall deliver to the Borrowers (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the amount payable to the affected Lender, and such certificate shall be conclusive and binding on the Borrowers in the absence of manifest error.
Section 5.7 Survival. The agreements and obligations of the Borrowers in this Article 5 shall survive the payment of all other Obligations.
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
Section 6.1 Books and Records. The Obligated Parties shall maintain, and shall cause each of their Subsidiaries to maintain, at all times, correct and complete books, records, and accounts in which full, true, complete, correct, and timely entries are made of such Person’s transactions in accordance with GAAP consistently applied. The Obligated Parties shall reflect, and shall cause each of their Subsidiaries to reflect, by means of appropriate entries, in such accounts and in all Financial Statements proper liabilities and reserves for all taxes and proper provision for depreciation and amortization of property and bad debts, all in accordance with GAAP. The Obligated Parties shall maintain at all times books and records pertaining to the Collateral in such detail, form, and scope as the Agents shall reasonably require, including, but not limited to, timely records of (a) all payments received and all credits and extensions granted with respect to the Accounts, (b) the return, rejection, repossession, stoppage in transit, loss, damage, or destruction of any Inventory, and (c) all other dealings affecting the Collateral.
Section 6.2 Financial and Other Information. The Obligated Parties shall promptly furnish to the Agents all such information regarding the Obligated Parties’ and each of their Subsidiaries’ financial and business affairs as either of the Agents or any Lender (through either of the Agents, and the applicable Agent agrees to pass along all such reasonable requests by any Lender to the Obligated Parties) may reasonably request. Without limiting the foregoing, the
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Obligated Parties will furnish, or cause to be furnished, to both Agents (with sufficient copies to the Administrative Agent for distribution to each Lender) the following, in such detail as either of the Agents or the Lenders (through either of the Agents, and the applicable Agent agrees to pass along all such reasonable requests by any Lender to the Obligated Parties) shall reasonably request:
(a) The Obligated Parties will furnish, or cause to be furnished, as soon as available, but in any event not later than 120 days after the close of each Fiscal Year of Xxxxx, consolidated audited balance sheets and statements of income, cash flow, and stockholders’ equity for Xxxxx and its Subsidiaries for such Fiscal Year, and the accompanying notes thereto, setting forth in each case in comparative form figures for the previous Fiscal Year, all in reasonable detail, fairly presenting the financial position and the results of operations of Xxxxx and its Subsidiaries on a consolidated basis as at the date thereof and for the Fiscal Year then ended, and prepared in accordance with GAAP; provided that the Obligated Parties will furnish or cause to be furnished unaudited drafts of each of such financial statements to the Agents as soon as available, but in any event not later than 90 days after the close of each Fiscal Year of Xxxxx. Such Financial Statements shall be audited in accordance with generally accepted auditing standards by and accompanied by a report thereon containing an opinion that is unqualified in any respect of, independent certified public accountants selected by Xxxxx (it being agreed by the parties hereto, however, that at any time after the Closing Date, the Agents shall have the right, in their reasonable discretion, to require that Xxxxx and its Subsidiaries retain independent certified public accountants of national standing to perform such examinations and provide such reports). The Obligated Parties hereby authorize each of the Agents to communicate directly with the Obligated Parties’ certified public accountants and, by this provision, authorizes such accountants to disclose to each of the Agents any and all financial statements and other supporting financial documents and schedules relating to the Obligated Parties and to discuss directly with each of the Agents the finances and affairs of the Obligated Parties, provided that the applicable Agent shall provide the Obligated Parties the opportunity to attend and participate in such discussions.
(b) The Obligated Parties will furnish or cause to be furnished,
(i) as soon as available, but in any event not later than 45 days after the end of each Fiscal Quarter, other than a Fiscal Quarter that is a year end, an unaudited balance sheet, income statement, and statement of cash flow for Xxxxx and its Subsidiaries prepared on a consolidated basis for the period from the beginning of the current Fiscal Year to the end of such Fiscal Quarter, all in reasonable detail and fairly presenting the financial position and results of operations of Xxxxx and its Subsidiaries as at the date thereof and for such period, and, in each case, in comparable form, figures for the corresponding period in the prior Fiscal Year, and in the Latest Projections, and prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, if any) applied consistently with the audited Financial Statements required to be delivered pursuant to Section 6.2(a) and
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(ii) as soon as available, but in any event not later than 30 days after the end of each Fiscal Month, an unaudited balance sheet, income statement, and statement of cash flow for Xxxxx and its Subsidiaries prepared on a consolidated basis for the period from the beginning of the current Fiscal Year to the end of such Fiscal Month, all in reasonable detail and fairly presenting the financial position and results of operations of Xxxxx and its Subsidiaries as at the date thereof and for such period, and, in each case, in comparable form, figures for the corresponding period in the prior Fiscal Year, and in the Latest Projections, and prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, if any, and, solely in the case of the financial statements for the Fiscal Months of January and February of each Fiscal Year, subject to normal year-end audit adjustments from the prior Fiscal Year that have an impact on the financial statements for such Fiscal Months) applied consistently with the audited Financial Statements required to be delivered pursuant to Section 6.2(a).
Xxxxx shall certify by a certificate signed by a Responsible Officer that all such Financial Statements have been prepared in accordance with GAAP (other than the omission of footnotes and subject to normal year-end audit adjustments, if any) applied consistently with the audited Financial Statements required to be delivered pursuant to Section 6.2(a) and present fairly, subject to normal year-end audit adjustments, the financial position of Xxxxx and its Subsidiaries as at the dates thereof and their results of operations for the periods then ended.
(c) The Obligated Parties will cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(a), a letter from the independent certified public accountants that audited such Financial Statements to the effect that such accountants are familiar with this Agreement and that, in auditing such Financial Statements, they did not become aware of any fact or condition which then constituted a Default or Event of Default with respect to a financial covenant set forth in Section 8.21, except for those, if any, described in reasonable detail in such letter.
(d) The Obligated Parties will furnish or cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(a), and with each of the Financial Statements delivered pursuant to Section 6.2(b)(i), a certificate of a Responsible Officer of Xxxxx in the form of Exhibit C (a “Compliance Certificate”), or another form acceptable to the Agents in their discretion, (i) setting forth in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 8.21 during the period covered by such Financial Statements and as at the end thereof and (ii) except as explained in reasonable detail in such certificate, (A) stating that all of the representations and warranties of the Obligated Parties contained in this Agreement and the other Loan Documents are correct and complete in all material respects as at the date of such certificate as if made at such time, except for those that speak as of a particular date, (B) stating that the Obligated Parties are, at the date of such certificate, in compliance in all material respects with all of their respective covenants and agreements in this Agreement and the other Loan Documents, (C) stating that no Default or Event of Default then exists or existed during the period covered by such Financial Statements,
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(D) analyzing in reasonable detail the material variances of the figures in the Latest Projections and corresponding Financial Statements for the prior Fiscal Year and (E) certifying, to the Obligated Parties’ knowledge, that the amount of the Unused Availability during the period covered by such certificate did not fall to an amount which would give rise to an Accelerated Delivery Date and that the amount of the Excess Availability during the period covered by such certificate did not fall to an amount which would give rise to a Trigger Event, or, if the Unused Availability or Excess Availability fell to any such amount, the first date on which such event occurred. If such certificate discloses that a representation or warranty is not correct or complete, or that a covenant has not been complied with, or that a Default or Event of Default existed or exists, such certificate shall set forth what action the Obligated Parties have taken or propose to take with respect thereto. In addition, if, as a result of any change in accounting principles and policies from those used in the preparation of the audited Financial Statements referred to in Section 7.6(a), the consolidated Financial Statements of Xxxxx and its Subsidiaries delivered pursuant to Section 6.2(a) or (b) will differ in any material respect from the consolidated Financial Statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then the Obligated Parties will deliver to both Agents (with sufficient copies to the Administrative Agent for distribution to each Lender) (i) together with the first delivery of Financial Statements pursuant to Section 6.2(a) or (b) following such change, consolidated Financial Statements of Xxxxx and its Subsidiaries for (y) the current Fiscal Year to the effective date of such change and (z) one full Fiscal Year immediately preceding the Fiscal Year in which such change is made, in each case prepared on a pro forma basis as if such change had been in effect during such periods, and (ii) together with each delivery of Financial Statements pursuant to Section 6.2(a) or (b) following such change, subject to Section 1.2, a written statement of a Responsible Officer of Xxxxx setting forth the differences (including, subject to Section 1.2, any differences that would affect any calculations relating to the financial covenants set forth in Section 8.21) which would have resulted if such Financial Statements had been prepared without giving effect to such change. The Obligated Parties will furnish or cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(b)(ii), a monitoring report, in form, scope and substance reasonably satisfactory to the Agents, for the Fiscal Month covered by such Financial Statements.
(e) The Obligated Parties will furnish, or cause to be furnished, no sooner than 60 days but not less than 30 days prior to the beginning of each Fiscal Year of Xxxxx, annual forecasts prepared by Xxxxx (to include forecasted consolidated balance sheets, income statements, statements of cash flow, and Borrowing Base and Unused Availability projections) for Xxxxx and its Subsidiaries as at the end of and for each Fiscal Month of such Fiscal Year and the following Fiscal Year.
(f) Upon the request of either of the Agents, the Obligated Parties will furnish, or cause to be furnished, within three Business Days of such request, a copy of the most recent annual report or other requested filing filed with the PBGC, IRS or any other Governmental Authority with respect to each Plan of any Obligated Party.
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(g) The Obligated Parties will furnish, or cause to be furnished, within three Business Days after filing thereof, copies of (i) all reports, if any, or other documents filed by Xxxxx or any of its Subsidiaries with the Securities and Exchange Commission under the Exchange Act or any other similar Governmental Authority pursuant to any Requirement of Law, (ii) all reports, notices, or statements sent or received by Xxxxx or any of its Subsidiaries to or from the holders of any Debt of Xxxxx or any of its Subsidiaries registered under the Securities Act of 1933 or to or from the trustee under any indenture under which the same is issued, and (iii) all press releases and other statements made available generally by Xxxxx or any of its Subsidiaries to the public concerning material developments in the business of Xxxxx or any of its Subsidiaries.
(h) The Obligated Parties will furnish, or cause to be furnished, as soon as available, but in any event not later than fifteen days after Xxxxx’x or any of its Subsidiaries’ receipt thereof, a copy of all reports and letters prepared by any independent certified public accountants of Xxxxx or any of its Subsidiaries and submitted by such independent certified public accountants to the board of directors (or the audit committee of the board of directors) of Xxxxx or any of its Subsidiaries; provided that the Obligated Parties shall request such reports and letters at least once per year.
(i) The Obligated Parties will furnish, or cause to be furnished, (i) concurrently with distribution thereof to the owners of Capital Stock of any Obligated Party, copies of any and all proxy statements and financial statements which such Obligated Party makes available to any such Person, (ii) concurrently with distribution thereof to the primary recipients, copies of any and all proxy statements, financial statements, and reports which any Obligated Party makes available to any holder of any Debt of any Obligated Party, (iii) not later than three (3) Business Days after execution, receipt or delivery thereof, copies of any material notices or other communications that any Obligated Party executes, receives or delivers in connection with any Second Lien Debt Document or any Refinancing Second Lien Debt Document and (iv) not later than five (5) Business Days (or such lesser number of Business Days as agreed to by the Agents) prior to the effectiveness thereof, copies of substantially final drafts of any proposed amendment, supplement, waiver or other modification with respect to any Second Lien Debt Document, Refinancing Second Lien Debt Document or any related document, and promptly after the execution thereof, copies of any executed amendment, supplement, waiver or other modification with respect to any Second Lien Debt Document, any Refinancing Second Lien Debt Document or any related document.
(j) If requested by either of the Agents, the Obligated Parties will furnish, or cause to be furnished, promptly after such request, a copy of each tax return filed by Xxxxx or any of its Subsidiaries with the IRS or any other Governmental Authority.
(k) The Obligated Parties will furnish, or cause to be furnished to the Agents,
(i) as soon as available, but in any event within twenty (20) days after the end of each Fiscal Month of Xxxxx as of the end of such Fiscal Month, and at such other times as may be requested by either of the Agents, a Borrowing Base Certificate and supporting information in connection therewith; provided, that
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during each Accelerated Delivery Period, the Borrowers shall deliver a Borrowing Base Certificate and supporting information in connection therewith to the Agents on a weekly basis (not later than the fourth Business Day after the last Business Day of the previous week) with the information thereon to be as of the last Business Day of such previous week;
(ii) within twenty (20) days of the end of each Fiscal Month, or more frequently if requested by either of the Agents, a schedule (in form reasonably satisfactory to the Agents) of each Borrower’s Accounts created, credits given, cash collected, and other adjustments made to such Borrower’s Accounts as of the last day of such Fiscal Month since the date of the previous such schedule;
(iii) within twenty (20) days of the end of each Fiscal Month, or more frequently if requested by either of the Agents, an aging (in form reasonably satisfactory to the Agents) of each Borrower’s Accounts as of the last day of such Fiscal Month, together with a reconciliation to the corresponding Borrowing Base and to such Borrower’s general ledger;
(iv) within twenty (20) days of the end of each Fiscal Month, or more frequently if requested by either of the Agents, an aging (in form reasonably satisfactory to the Agents) of each Borrower’s accounts payable as of the last day of such Fiscal Month together with a reconciliation to the corresponding general ledger of such Borrower;
(v) within twenty (20) days of the end of each Fiscal Month, or more frequently if requested by either of the Agents, a detailed calculation (in form reasonably satisfactory to the Agents) of Eligible Accounts, Eligible Transportation Equipment and Eligible Inventory as of the last day of such Fiscal Month;
(vi) within twenty (20) days of the end of each Fiscal Month, or more frequently if requested by either of the Agents, Inventory and Transportation Equipment reports by each Borrower, category, quantity, cost, and location (in form reasonably satisfactory to the Agents), together with a reconciliation to the corresponding Borrowing Base and to the Borrowers’ general ledger as of the last day of such Fiscal Month;
(vii) within twenty (20) days of the end of each Fiscal Month, a schedule identifying each location, if any, where any Collateral is located with a sales representative, agent, contractor, or other Person under any bailee, consignee, or warehouse arrangement, in each case setting forth, as of the last day of the immediately preceding Fiscal Month, (A) the name and address of each such sales representative, agent, contractor, or other Person and a description of the nature of any such arrangement and (B) the cost of such Inventory and Transportation Equipment at each such location;
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(viii) upon request by either of the Agents, within three (3) Business Days of such request, copies of invoices, customer statements, credit memos, remittance advices and reports, leases, lease forms, deposit slips, and leasing, shipping and delivery documents with respect to each Borrower’s Accounts and Inventory, and purchase orders and invoices with respect to any Equipment or Inventory acquired by any Borrower or a written explanation of why the requested items can not be delivered within such three (3) Business Day period (in which case, such requested items shall then be delivered as promptly thereafter as is reasonably practicable);
(ix) within twenty (20) days of the end of each Fiscal Month, a report in a format to be agreed upon between the Agents and Xxxxx with relevant operating information including Time Utilization by product category, average discount and average rental rates;
(x) upon request by either of the Agents, within three (3) Business Days of such request, a statement of the balance of each of the Intercompany Accounts; and
(xi) within three (3) Business Days, such other reports with respect to the Collateral as either of the Agents may reasonably request or a written explanation of why the requested reports can not be delivered within such three (3) Business Day period (in which case such requested reports shall then be delivered as promptly thereafter as is reasonably practicable).
With the delivery of each of the foregoing, the Obligated Parties shall furnish a certificate executed by a Responsible Officer of the Borrowers certifying as to the accuracy and completeness of the foregoing. If any of any Borrower’s records or reports with respect to the Collateral are prepared by an accounting service or other agent, such Borrower hereby authorizes such service or agent to deliver such records, reports, and related documents to the Administrative Agent for distribution to the Lenders.
(l) The Obligated Parties will provide the Agents the information required by Section 8.7(b).
(m) Within 30 days following the date franchise taxes are due, the Obligated Parties will, unless the Agents shall each otherwise consent, provide to the Administrative Agent a certificate of the applicable Governmental Authority evidencing each Obligated Party’s good standing in its jurisdiction of formation, incorporation, or organization, as applicable.
(n) The Obligated Parties will furnish, or cause to be furnished, such additional information as either Agent and/or any Lender (through either of the Agents, and the applicable Agent agrees to pass along all such reasonable requests by any Lender to the Obligated Parties) may from time to time reasonably request regarding the financial and business affairs of Xxxxx or any Subsidiary of Xxxxx.
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(o) The Obligated Parties will furnish, or cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(b), a description of any commercial tort claim acquired by any Obligated Party during the period covered by such Financial Statements.
(p) The Obligated Parties will furnish, or cause to be furnished, with each of the Financial Statements delivered pursuant to Section 6.2(b), a description of all Collateral acquired by any Obligated Party during the period covered by such Financial Statements which is subject to any certificate of title law of the U.S. or any state.
(q) After any item of Inventory is no longer subject to a Lien described in clause (l) of the definition of “Permitted Liens”, the Obligated Parties will furnish, or cause to be furnished, either a UCC partial release for such item of Inventory or a statement from the vendor of such item of Inventory that such vendor no longer has a Lien in such item of Inventory, and until such partial release or statement is delivered to the Agents such item of Inventory shall in no event constitute Eligible Inventory and no Accounts created with respect to such Inventory shall constitute Eligible Accounts.
(r) After any item of Transportation Equipment is no longer subject to a Lien described in clause (k) of the definition of “Permitted Liens”, the Obligated Parties will furnish, or cause to be furnished, (i) if a certificate of title is not required with respect to such item of Transportation Equipment under the titling statutes of any relevant Governmental Authority, either a UCC partial release for such item of Transportation Equipment or a statement from the vendor or lessor of such item of Transportation Equipment that such vendor or lessor, as the case may be, no longer has a Lien in such item of Transportation Equipment or (ii) if a certificate of title has been issued with respect to such item of Transportation Equipment, such certificate of title endorsed by the secured party releasing its Lien in such item of Transportation Equipment or, if such original certificate of title cannot be furnished, such other lien release as is acceptable to the Governmental Authority issuing such certificate of title to permit the issuance of a replacement certificate of title without the notation of such Lien, and until such partial release, statement, certificate of title or other release, as applicable, is delivered to the Agents such item of Transportation Equipment shall in no event constitute Eligible Transportation Equipment.
Section 6.3 Notices. The Obligated Parties shall notify each Agent in writing of the following matters at the following times:
(a) immediately after a Responsible Officer’s becoming aware of any Default or Event of Default;
(b) within three (3) Business Days after a Responsible Officer’s becoming aware of the assertion by the holder of any Capital Stock of Xxxxx or any Subsidiary of Xxxxx or the holder of any Debt of Xxxxx or any Subsidiary of Xxxxx in excess of $500,000 that a default exists with respect thereto or that any such Person is not in compliance with the terms thereof, or the written threat or commencement by such holder of any enforcement action because of such asserted default or non-compliance;
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(c) within five (5) Business Days after a Responsible Officer’s becoming aware of any pending or threatened (in writing) action, suit, proceeding, or counterclaim by any Person, or any pending or threatened (in writing) investigation by a Governmental Authority, that could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(d) within five (5) Business Days after a Responsible Officer’s becoming aware of any pending or threatened (in writing) strike, work stoppage, unfair labor practice claim or other similar labor dispute affecting any Obligated Party that could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(e) within five (5) Business Days after a Responsible Officer’s becoming aware of any violation of any Requirement of Law affecting any Obligated Party that reasonably could be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(f) within five (5) Business Days after (i) a Responsible Officer’s receipt of any written notice of any violation by any Obligated Party of any Environmental Law or (ii) a Responsible Officer’s obtaining knowledge that any Governmental Authority has asserted that any Obligated Party is not in compliance with any Environmental Law or that any Governmental Authority is investigating any Obligated Party’s compliance therewith, which in any event under clause (i) or clause (ii) preceding could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(g) within five (5) Business Days after a Responsible Officer’s receipt of any written notice from any Governmental Authority or other Person or otherwise obtaining knowledge that any Obligated Party is or may be liable to any Person as a result of the Release or threatened Release of any Contaminant or that any Obligated Party is subject to investigation by any Governmental Authority evaluating whether any remedial action is needed to respond to the Release or threatened Release of any Contaminant that, in either case, could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(h) within five (5) Business Days after a Responsible Officer’s receipt of any written notice of the imposition of any Environmental Lien against any property of any Obligated Party;
(i) not less than 30 days prior to any change in any Obligated Party’s (i) name as it appears in the jurisdiction of its formation, incorporation, or organization, (ii) type of entity, (iii) organizational identification number, or (iv) trade names under which such Obligated Party will sell Inventory or create Accounts, or to which instruments in payment of Accounts may be made payable;
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(j) within five (5) Business Days after any Responsible Officer knows or has reason to know, (i) that an ERISA Event or a prohibited transaction (as defined in Sections 406 of ERISA and 4975 of the Code) has occurred or (ii) that any action has been taken or threatened (in writing) by the IRS, the DOL, or the PBGC with respect to any such ERISA Event or prohibited transaction;
(k) upon either Agent’s request, copies of the following: (i) each annual report (form 5500 series), including Schedule B thereto, filed with the DOL or the IRS with respect to each Plan; (ii) a copy of each funding waiver request filed with the IRS with respect to any Plan and all communications received by any Obligated Party or any ERISA Affiliate from the IRS with respect to such request; and (iii) a copy of each other filing or notice filed with the PBGC, the DOL, or the IRS, with respect to each Plan by any Obligated Party or any ERISA Affiliate;
(l) upon request from either Agent, copies of each most recent actuarial report for any Plan (except that in the case of a Multiemployer Plan, the Obligated Party will request of the plan administrator thereof that a copy of each actuarial report and annual report for the Multiemployer Plan be sent to the requesting Agent), and within five (5) Business Days after receipt thereof by any Obligated Party or any ERISA Affiliate, copies of the following: (i) any notices of the PBGC’s intention to terminate a Plan or to have a trustee appointed to administer such Plan; (ii) any favorable or unfavorable determination letter from the IRS regarding the qualification of a Plan under Section 401(a) of the Code; or (iii) any notice from a Multiemployer Plan regarding the imposition of withdrawal liability;
(m) within five (5) Business Days after the occurrence thereof: (i) any changes in the benefits of any existing Plan which the Obligated Party expects to increase any Obligated Party’s annual costs with respect thereto by an amount in excess of $500,000, or the establishment of any new Plan or the commencement of contributions to any Plan to which any Obligated Party or any ERISA Affiliate was not previously contributing; or (ii) any failure by any Obligated Party or any ERISA Affiliate to make a required installment or any other required payment to any Plan in excess of $250,000 under Section 412 of the Code on or before the due date for such installment or payment;
(n) within five (5) Business Days after commencement of any proceedings contesting any tax, fee, assessment, or other governmental charge in excess of $500,000;
(o) within five (5) Business Days after any Responsible Officer becomes aware that any material assumption on which the Obligated Parties prepared and presented the Latest Projections is no longer valid;
(p) with each of the financial statements required to be delivered pursuant to Section 6.2(b), a listing of (i) each Deposit Account opened by any Obligated Party and (ii) any Proprietary Rights registered with the United States Patent and Trademark Office or the United States Copyright Office, in the preceding Fiscal Month;
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(q) within five (5) Business Days after the occurrence thereof, any loss, damage, or destruction to the Collateral, whether due to any casualty, condemnation, or other reason, having a value in excess of $500,000, whether or not covered by insurance;
(r) within five (5) Business Days after any Responsible Officer becomes aware of any Lien (other than Permitted Liens) against, or any claim in excess of $100,000 made or asserted in writing against, any of the Collateral;
(s) within five (5) Business Days after a Responsible Officer’s becoming aware of any event or circumstance not covered by clause (a) through clause (r) preceding that could reasonably be expected to have, or has resulted in, a Material Adverse Effect;
(t) not less than ten (10) Business Days prior to the lease under the GE Sale and Leaseback Agreement of any item of property which was not leased under that agreement on the Original Closing Date, a description in reasonable detail (including serial numbers thereof, if any) of the item of property to be leased (including, without limitation, any such item to be leased as a result of Xxxxx’x exercise of a replacement option under the GE Sale and Leaseback Agreement or as a result of the occurrence of a casualty to another item of property leased thereunder);
(u) promptly, any material additions to or deletions from any Obligated Party’s Inventory or Transportation Equipment that are not made in the ordinary course of business;
(v) promptly, any material change in insurance coverage maintained by any Obligated Party, specifying the changes and reasons therefor;
(w) promptly, and in any event within ten (10) Business Days after any Material Contract of any Obligated Party set forth on Schedule 7.24 is terminated or amended in a manner that is materially adverse to any Obligated Party, a written statement describing such event with copies of such material amendments, and an explanation of any actions being taken with respect thereto; and
(x) not less than ten (10) days prior to any Asset Sale (as defined in the Second Lien Debt Agreement) or any application of proceeds thereof to the payment of any Obligations, in each instance, that will result in a reduction of the maximum amount of Aggregate Revolver Outstandings permitted to be incurred under Section 4.09(b)(1) of the Second Lien Debt Agreement (other than solely as a result of a reduction due to the borrowing base formula under Section 4.09(b)(1)(b) of the Second Lien Debt Agreement), notice of such Asset Sale and the amount of such reduction.
Each notice given under this Section 6.3 shall describe the subject matter thereof in reasonable detail, and shall set forth the action that any Obligated Party or any ERISA Affiliate, as applicable, has taken or proposes to take with respect thereto.
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GENERAL WARRANTIES AND REPRESENTATIONS
Each Obligated Party warrants and represents to the Agents and the other Credit Providers as follows:
Section 7.1 Authorization, Validity, and Enforceability of the Transaction Documents. Each Obligated Party has the power and authority to execute, deliver, and perform this Agreement and the other Transaction Documents to which it is a party, to incur the indebtedness, liabilities, and obligations it has agreed to undertake under the Transaction Documents to which it is a party, and to grant the Agent’s Liens. Each Obligated Party has taken all necessary action (including obtaining approval of the owners of its Capital Stock or any other Person required to provide approval or consent, if necessary) to authorize its execution, delivery, and performance of the Transaction Documents to which it is a party. The Transaction Documents to which each Obligated Party is a party have been duly executed and delivered by such Obligated Party, and constitute the legal, valid, and binding obligations of such Obligated Party, enforceable against it in accordance with their respective terms without defense, setoff, or counterclaim except as such enforceability is limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and to the effect of general principles of equity whether applied by a court of law or equity. Each Obligated Party’s execution, delivery, and performance of the Transaction Documents to which it is a party do not and will not conflict with, or constitute a violation or breach of, or constitute a default under, or result in or require the creation or imposition of any Lien upon any property of any Obligated Party by reason of the terms of (a) any contract, mortgage, Lien, lease, agreement, indenture, document, or instrument to which such Obligated Party is a party or that is binding upon it, (b) any Requirement of Law applicable to such Obligated Party, or (c) the Organization Certificate or Management Agreement of such Obligated Party. Each Borrowing and each delivery by any or all of the Borrowers (or Xxxxx on behalf of the Borrowers) of a Borrowing Base Certificate constitutes a representation and warranty by Xxxxx that, as of the date of such Borrowing or delivery, as the case maybe (both before and after giving effect to such Borrowing, if applicable), the financial accommodations provided to the Borrowers hereunder do not violate the debt incurrence limits set forth in the Second Lien Debt Agreement or exceed the Maximum First Lien Principal Indebtedness (as defined in the Intercreditor Agreement). Without limitation of the foregoing, the Borrowers represent and warrant that (i) each Borrowing is permitted under Section 4.09(b)(1) of the Second Lien Debt Agreement, (ii) each Borrowing is permitted to be incurred and secured by all applicable Secured Debt Documents (as defined in the Second Lien Debt Agreement) and constitutes Priority Lien Debt (as defined in the Second Lien Debt Agreement), (iii) all Obligations constitute “First Lien Obligations” as defined in the Intercreditor Agreement, (iv) there are in existence no Credit Facilities (as defined in the Second Lien Debt Agreement) other than this Agreement and (v) there is in existence no Parity Lien Debt (as defined in the Second Lien Debt Agreement) other than Second Lien Debt.
Section 7.2 Validity and Priority of Security Interest. The provisions of the Loan Documents create legal and valid Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Credit Providers, and such Liens (a) constitute perfected and continuing Liens on the Collateral, securing the Obligations, (b) are enforceable against the applicable Obligated
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Party and all third parties, and (c) have priority over all other Liens on the Collateral except for those Liens identified in clause (b) through clause (h) or clause (k) through clause (l) of the definition of Permitted Liens (but only to the extent any such Permitted Liens would have priority over the Agent’s Liens pursuant to any Requirement of Law) and Liens perfected only by possession (including possession of any certificate of title) to the extent the Collateral Agent has not obtained or does not maintain possession of such Collateral.
Section 7.3 Organization, Authority, and Good Standing. Each of the Obligated Parties
(a) is a corporation, limited liability company, partnership, limited partnership, or other business entity duly and properly formed, incorporated, or organized and validly existing under Requirements of Law of the jurisdiction of its formation, incorporation, or organization as set forth in Schedule 7.3, and such jurisdiction is the only jurisdiction under which it is formed, incorporated, or organized,
(b) has all requisite power and authority to conduct its business in each jurisdiction in which it conducts business and to own its property, and
(c) to the extent applicable, is qualified and in good standing under the Requirements of Law of (i) its jurisdiction of formation, incorporation, or organization and (ii) each other jurisdiction in which qualification is necessary in order for it to own or lease its property and conduct its business.
Section 7.4 Capitalization and Subsidiaries. As of the Closing Date, Schedule 7.4 sets forth (a) a correct and complete list of the relationship of the Obligated Parties and all of their respective Subsidiaries, (b) the location of the chief executive office of each of the Obligated Parties, (c) a true and complete listing of each class of the Capital Stock of each of the Obligated Parties, of which all of such issued shares or other interests are validly issued, outstanding, fully paid and non-assessable, and owned beneficially and of record by the Persons identified in Schedule 7.4, (d) the type of entity of each of the Obligated Parties, (e) the jurisdiction of formation, incorporation or organization of each of the Obligated Parties and the employer or taxpayer identification number of each of the Obligated Parties and the organizational identification number issued by each of the Obligated Parties’ jurisdiction of formation, incorporation, or organization (or a statement that no such number has been issued). Each Obligated Party has only one state of formation, incorporation, or organization.
Section 7.5 Corporate Name; Prior Transactions. As of the Closing Date, Schedule 7.5 sets forth a correct and complete list of the name of each Obligated Party as it appears in official filings in the jurisdiction of its formation, organization, or incorporation. Except as set forth in Schedule 7.5, no Obligated Party has, during the past five years, been known by or used any other corporate or fictitious name, or been a party to any merger or consolidation, or acquired all or substantially all of the assets of any Person, or acquired any of its property outside of the ordinary course of business.
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Section 7.6 Financial Statements and Projections.
(a) The Obligated Parties have delivered to each Agent and the Lenders the audited financial statements for Xxxxx and its Subsidiaries for the Fiscal Years ended December 31, 2001, December 31, 2002, December 31, 2003 and December 31, 2004, accompanied by the report thereon of Xxxxx’x independent certified public accountants, Xxxxxx Xxxxxx Xxxxxx & Xxxx. The Obligated Parties have also delivered to each Agent and the Lenders the unaudited balance sheet and related statements of income and cash flow for Xxxxx and its Subsidiaries on a consolidated basis as of the end of each Fiscal Month ending January 31, 2005 through June 30, 2005. All such financial statements have been prepared in accordance with GAAP and fairly present the financial position of Xxxxx and its Subsidiaries as at the dates thereof and their results of operations for the periods then ended (except with respect to the unaudited financial statements referred to immediately above, for the omission of applicable footnotes and subject to normal year-end audit adjustments). Except as set forth on Schedule 7.6, as of the Closing Date, Xxxxx and its Subsidiaries do not have any material liabilities that are not disclosed in such financial statements.
(b) The Latest Projections when submitted to the Agents as required herein represent the Obligated Parties’ good faith estimate of the future financial performance of the Borrowers for the periods set forth therein. The Latest Projections have been prepared on the basis of the assumptions set forth therein, which the Obligated Parties believe are fair and reasonable in light of current and reasonably foreseeable business conditions at the time submitted to the Agents.
(c) The pro forma balance sheet of Xxxxx and its Subsidiaries as at June 30, 2005, delivered to the Agents presents fairly and accurately Xxxxx’x and its Subsidiaries’ financial condition as of such date and after giving effect to consummation of the transactions contemplated by this Agreement and the Second Lien Debt Documents.
Section 7.7 Solvency. As of the Closing Date, prior to and after giving effect to all of the transactions to occur on the Closing Date (including the Borrowings to be made on the Closing Date), and at all times after the Closing Date, each of the Obligated Parties is Solvent.
Section 7.8 Debt. As of the Closing Date, after giving effect to the Borrowings to be made on the Closing Date, the Obligated Parties and their Subsidiaries have no Debt, except (a) the Obligations and (b) Debt permitted pursuant to Section 8.12.
Section 7.9 Distributions. Schedule 7.9 accurately sets forth, as of the date hereof, all Distributions which have been declared, paid, or made upon or in respect of any Capital Stock of Xxxxx since December 31, 2003.
Section 7.10 Real Estate; Leases. As of the Closing Date, Schedule 7.10 sets forth a correct and complete list of all Real Estate owned by each Obligated Party, all leases and subleases of real or personal property by each Obligated Party as lessee or sublessee (other than leases of personal property as to which such Obligated Party is lessee or sublessee for which the value of such personal property under any such lease in the aggregate is less than $10,000, and
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Re-Rental Leases) and all leases and subleases of real or personal property by each Obligated Party as lessor or sublessor. Schedule 7.10 also sets forth a correct and complete list, as of the Closing Date, of all inventory and equipment that is subject to the GE Sale and Leaseback Agreement. Each material lease and sublease between an Obligated Party and DFA LLC is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or sublease exists. All other leases and subleases of the Obligated Parties are in full force and effect, and no default by any party to any such lease or sublease exists, except if the result thereof would not have a Material Adverse Effect; provided that, as of the Closing Date, each lease and sublease set forth on Schedule 7.10 is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or sublease exists. Each Obligated Party has good and indefeasible title in fee simple to the Real Estate identified in Schedule 7.10 as “owned” by such Obligated Party, or valid leasehold interests in all Real Estate identified in Schedule 7.10 as “leased” by such Obligated Party, and each Obligated Party has good, indefeasible, and merchantable title to all of its other property reflected on the June 30, 2005 Financial Statements of Xxxxx and its Subsidiaries delivered to the Agents and the Lenders, except as disposed of in the ordinary course of business since the date thereof, free of all Liens except Permitted Liens.
Section 7.11 Proprietary Rights. As of the Closing Date, (a) Schedule 7.11 sets forth a correct and complete list of all of each Obligated Party’s registered patents, trademarks, copyrights, and other material Proprietary Rights, (b) none of the Proprietary Rights listed in Schedule 7.11 is subject to any licensing agreement or similar arrangement except as set forth in Schedule 7.11, (c) the Proprietary Rights listed in Schedule 7.11 constitute all of the property of such type necessary to the current and anticipated future conduct of the Obligated Parties’ business, (d) to the best of each Obligated Party’s knowledge, none of the Proprietary Rights listed in Schedule 7.11 infringes upon or conflicts with any rights held by any other Person, and (e) no claim or litigation regarding any of the foregoing is pending or threatened (in writing).
Section 7.12 Trade Names. All trade names or styles under which any Obligated Party will sell or lease Inventory or create Accounts, or to which instruments in payment of Accounts may be made payable, are listed in Schedule 7.12.
Section 7.13 Litigation. Except as set forth in Schedule 7.13, there is no pending or threatened (in writing), action, suit, proceeding, or counterclaim by any Person, or investigation by any Governmental Authority, or any basis for any of the foregoing, that could reasonably be expected to have a Material Adverse Effect.
Section 7.14 Labor Matters. As of the Closing Date, except as set forth in Schedule 7.14, (a) there is no collective bargaining agreement or other labor contract covering employees of any Obligated Party, (b) no such collective bargaining agreement or other labor contract is scheduled to expire during the term of this Agreement, (c) to the best of any Obligated Party’s knowledge, no union or other labor organization is seeking to organize, or to be recognized as, a collective bargaining unit of employees of any Obligated Party or for any similar purpose, (d) to the best of any Obligated Party’s knowledge, there is no pending or threatened strike, work stoppage, unfair labor practice claim, or other material dispute against or affecting any Obligated Party or its employees, and (e) to the best of any Obligated Party’s knowledge, there is no pending or threatened unfair labor practice claim or other similar labor
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dispute against or affecting any Obligated Party or its employees that could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or that could reasonably be expected to have a Material Adverse Effect.
Section 7.15 Environmental Law. Except as otherwise set forth in Schedule 7.15 and except as could not reasonably be expected to result in liability in excess of $500,000 in the aggregate for all the Obligated Parties and otherwise could not reasonably be expected to have a Material Adverse Effect:
(a) Each Obligated Party is in compliance with all applicable Environmental Laws, and neither any Obligated Party nor any of their respective presently or previously owned Real Estate or presently conducted or prior operations, is subject to any enforcement order from, or liability agreement with, any Governmental Authority or private Person respecting (i) compliance with any Environmental Law or (ii) any potential liabilities and costs or remedial action arising from a Release or threatened Release of a Contaminant.
(b) Each Obligated Party has obtained all permits necessary for its current operations under applicable Environmental Law, and all such permits are in good standing, and each Obligated Party is in compliance with all terms and conditions of such permits.
(c) No Obligated Party is in violation of any Environmental Law with respect to storage, treatment, or disposal of any hazardous waste (as defined pursuant to 40 CFR Part 261 or any equivalent Environmental Law).
(d) No Obligated Party has received any summons, complaint, order, or similar written notice of any Environmental Claim indicating that it is not currently in compliance with, or that any Governmental Authority is currently investigating such Obligated Party’s compliance with, any Environmental Law or that it is or may be liable to any other Person as a result of a Release or threatened Release of a Contaminant.
(e) To the best of each Obligated Party’s knowledge, none of the present or past operations of any Obligated Party is the subject of any investigation by any Governmental Authority evaluating whether any remedial action is needed to respond to a Release or threatened Release of a Contaminant.
(f) To the best of each Obligated Party’s knowledge, there is not now on the Real Estate of any Obligated Party in violation of any Environmental Law:
(i) any underground storage tanks or surface impoundments,
(ii) any asbestos-containing material, or
(iii) any polychlorinated biphenyls used in hydraulic oils, electrical transformers, or other equipment.
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(g) No Obligated Party has filed, or has had the obligation to file, any notice under any requirement of Environmental Law reporting a spill or accidental and unpermitted Release or discharge of a Contaminant into the environment.
(h) No Obligated Party has entered into any pending or ongoing negotiations or any currently effective settlement agreements with any Person (including any prior owner of such Obligated Party’s property) imposing obligations or liabilities on any Obligated Party with respect to any remedial action in response to the Release of a Contaminant or environmentally related claim.
(i) None of the products manufactured, distributed, or sold by any Obligated Party or any Subsidiary of any Obligated Party contains asbestos containing material.
(j) No presently effective Environmental Lien has attached to any of the Real Estate owned by any Obligated Party.
Section 7.16 No Violation of Law. No Obligated Party is in violation of any Requirement of Law applicable to it, which violation could reasonably be expected to have a Material Adverse Effect.
Section 7.17 No Default. No Obligated Party is in default with respect to any note, indenture, loan agreement, mortgage, lease, deed, or other agreement to which such Obligated Party is a party or by which it is bound, which default could reasonably be expected to have a Material Adverse Effect.
Section 7.18 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other federal or state law;
(b) Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS and, to the best knowledge of each Obligated Party, nothing has occurred which would cause the loss of such qualification;
(c) Each Obligated Party and each ERISA Affiliate has made all required contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan;
(d) There are no pending or, to the best knowledge of any Obligated Party, threatened (in writing) claims, actions, or lawsuits, or action by any Governmental Authority, with respect to any Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect;
(e) There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect; and
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(f) Except where the occurrence or existence could not, individually or in the aggregate, result in liability in excess of $500,000 or otherwise be reasonably expected to have a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur, (ii) no Pension Plan has any Unfunded Pension Liability, (iii) no Obligated Party and no ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (iv) no Obligated Party and no ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan, and (v) no Obligated Party and no ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
Section 7.19 Taxes. Each Obligated Party has filed all federal, state, and other tax returns and reports required to be filed (or appropriate extensions have been timely filed), and has paid all federal, state, and other taxes, assessments, fees, and other governmental charges levied or imposed upon it or its properties, income, or assets otherwise due and payable unless such unpaid taxes and assessments would constitute a Permitted Lien.
Section 7.20 Regulated Entities. No Obligated Party or Affiliate of any Obligated Party is an “Investment Company” within the meaning of the Investment Company Act of 1940. No Obligated Party or Affiliate of any Obligated Party is subject to regulation under the Public Utility Holding Company Act of 1935, any state public utilities Requirement of Law, the Federal Power Act, the Interstate Commerce Act, or any other Requirement of Law limiting its ability to incur indebtedness.
Section 7.21 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used solely for the purposes specified in Section 8.22. No Obligated Party is engaged in the business of buying or selling Margin Stock or extending credit for the purpose of buying or carrying Margin Stock. Margin Stock constitutes less than 5.0% of the value of those assets of the Obligated Parties that are subject to any limitation on sale, pledge, or other restriction hereunder.
Section 7.22 No Material Adverse Change. No Material Adverse Effect has occurred since the date of the latest Financial Statements delivered to the Agents and the Lenders referenced in Section 7.6(a).
Section 7.23 Full Disclosure. None of the representations or warranties made by any Obligated Party in any of the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in any document, agreement, exhibit, report, statement, or certificate furnished by or on behalf of any Obligated Party in connection with the Loan Documents (including any offering and disclosure materials delivered by or on behalf of any Obligated Party to either of the Agents or any of the Lenders prior to the Closing Date), contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.
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Section 7.24 Material Agreements. As of the Closing Date, Schedule 7.24 sets forth a complete and accurate list of all material agreements and contracts (other than the Loan Documents) to which any Obligated Party is a party or is bound.
Section 7.25 Bank Accounts. As of the Closing Date, Schedule 7.25 contains a complete and accurate list of all bank accounts maintained by each Obligated Party with any bank or other financial institution.
Section 7.26 Commercial Tort Claims. As of the Closing Date, Schedule 7.26 contains a complete and accurate list of all commercial tort claims owned by each Obligated Party.
Section 7.27 Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery, or performance by, or enforcement against, any Obligated Party of any Transaction Document except for those that have been duly obtained by the Obligated Parties, copies of which, with respect to the Loan Documents, have been provided to the Agents, and for filing of financing statements and recording of Mortgages (if any).
Section 7.28 Second Lien Debt. The transactions contemplated by the Second Lien Debt Documents have been duly and validly consummated in accordance with the terms, conditions and provisions of such documents. Each of the representations and warranties made by any of the Obligated Parties pursuant to any of the Second Lien Debt Documents is true and correct, in all material respects. None of the transactions contemplated by this Agreement, any of the other Loan Documents or any of the Second Lien Debt Documents shall result in a breach of any of the representations and warranties or other provisions contained in any of the Transaction Documents.
Section 7.29 Certificates of Title. As of the Closing Date, Schedule 7.29 contains a complete and accurate list of all Collateral owned by each Obligated Party which is subject to a certificate of title law of the U.S. or any state.
Section 7.30 Subordinated Debt. The Obligations constitute senior indebtedness that is entitled to the benefits of the subordination provisions, if any, of all Debt of the Obligated Parties.
Section 7.31 Foreign Assets Control Regulations, Etc.
(a) None of the execution, delivery or performance of the Loan Documents by the Obligated Parties nor the use of the proceeds of the Revolving Loans hereunder will violate (i) the United States Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (iii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Terrorism Order”) or (iv) the Patriot Act. No part of the proceeds from the Revolving Loans will be used, directly or indirectly, for any payments to any governmental official
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or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
(b) No Obligated Party (i) is or will become a “blocked person” as described in Section 1 of the Terrorism Order or (ii) engages or will engage in any dealings or transactions, or is otherwise associated, with any such blocked person or any such Person.
(c) Each Obligated Party and its Affiliates are in compliance, in all material respects, with the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public Law 107-56 (October 26, 2001).
Section 7.32 Ranking. All Obligations constitute direct, unconditional and general obligations of the Obligated Parties and rank in right of payment either pari passu or senior to all other Debt of the Obligated Parties.
AFFIRMATIVE AND NEGATIVE COVENANTS
Each Obligated Party covenants to each Agent and each Lender that as long as any of the Obligations remain outstanding or this Agreement is in effect each Obligated Party will keep and perform each of the following covenants:
Section 8.1 Taxes and Other Obligations. Except as otherwise permitted by the terms of this Agreement, each Obligated Party shall (a) file when due (after giving effect to all timely filed appropriate extensions) all tax returns and other reports that it is required to file, (b) pay, or provide for the payment, when due, of all taxes, fees, assessments, and other governmental charges against it or upon its property, income, and franchises, make all required withholding and other tax deposits, and establish adequate reserves for the payment of all such items in accordance with GAAP, and provide to the Agents and the Lenders, upon request, satisfactory evidence of its timely compliance with the foregoing, and (c) pay when due all Debt and claims owed to materialmen, mechanics, carriers, warehousemen, landlords, processors, and other like Persons, and all other indebtedness, liabilities, and obligations the nonpayment of which could result in a Lien on any of the Collateral; provided that upon prior written notice to each Agent, such Obligated Party need not pay any of the foregoing (x) which it is contesting in good faith by appropriate proceedings diligently pursued, (y) for which it has established proper reserves as required in accordance with GAAP, and (z) for which no Lien (other than a Permitted Lien) results from such non-payment.
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Section 8.2 Legal Existence and Good Standing. Except as allowed by Section 8.9, each Obligated Party shall maintain (i) its legal existence and good standing in the jurisdiction of its formation, incorporation, or organization and (ii) its qualification and good standing in all other jurisdictions in which the failure to maintain such qualification and good standing could reasonably be expected to have a Material Adverse Effect. No Obligated Party shall change the jurisdiction of its formation, incorporation, or organization or change its type of entity as identified on Schedule 7.3 without the prior written consent of the Agents.
Section 8.3 Compliance with Law and Agreements; Maintenance of Licenses. Each Obligated Party shall, and shall cause each of its Subsidiaries to, comply in all material respects with all Requirements of Law. Each Obligated Party shall, and shall cause each of its Subsidiaries to, obtain and maintain all licenses, permits, franchises, and governmental authorizations necessary to own its property and to conduct its business as conducted on the Original Closing Date or as permitted by Section 8.16. No Obligated Party shall modify, amend, or alter its Organization Certificate or Management Agreement other than in a manner that does not adversely affect the rights of the Lenders or the Agents under any of the Loan Documents.
Section 8.4 Maintenance of Property; Inspection of Property.
(a) Each Obligated Party shall (i) maintain all of its inventory, equipment and facilities necessary and useful in the conduct of its business in good operating order and condition, ordinary wear and tear excepted and (ii) make all necessary repairs thereto and renewals and replacements thereof.
(b) Each Obligated Party shall permit employees, representatives and independent contractors of each of the Agents (accompanied by any Lender that so elects with the consent of such Agent, such consent not to be unreasonably withheld) to visit and inspect any of such Obligated Party’s properties, to examine, audit, make extracts from or copies of and inspect any or all of such Obligated Party’s Collateral, its corporate, financial, and operating records, files, and books of account, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances, and accounts with its officers, directors, and independent public accountants (provided that the relevant Agent shall provide the Obligated Parties the opportunity to attend and participate in such discussions with such public accountants) at such reasonable times during normal business hours and as soon as may be reasonably desired, upon reasonable advance notice to such Obligated Party, provided that during the existence of any Event of Default, each Agent (accompanied by any Lender that so elects with the consent of such Agent, such consent not to be unreasonably withheld) may do any of the foregoing at any time without advance notice. Each Obligated Party will deliver to each Agent any instrument necessary for such Agent to obtain records from any service bureau maintaining records for such Obligated Party. Each Agent shall have the right, at any time, in the applicable Obligated Party’s name, in such Agent’s name, or in the name of a nominee of such Agent, to verify the validity, amount, or any other matter relating to the Accounts, Inventory, or other Collateral, by mail, telephone, or otherwise. The Obligated Parties shall reimburse each of the Agents for its expenses incurred in connection with any such audit, inspection, and examination as provided in Section 15.7. Each of the Agents may, without expense to any of them,
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use such of each Obligated Party’s respective personnel, supplies, and Real Estate as may be necessary for maintaining or enforcing the Agent’s Liens.
(a) Each Obligated Party shall maintain with financially sound and reputable insurers having a rating of at least A+ or better by Best Rating Guide (or self-insure with respect to workers compensation, health, and other insurance (excluding insurance of the Collateral), including deductible and loss retention provisions, compatible with the standards set forth in this Section 8.5(a)), insurance against (i) loss or damage by fire (with extended coverage), theft, burglary, pilferage, and loss in transit, (ii) public liability and third party property damage, (iii) larceny, embezzlement, or other criminal liability, (iv) business interruption, and (v) such other hazards or of such other types as is customary for Persons engaged in the same or similar business, in amounts, and under policies reasonably acceptable to the Agents. Without limiting the foregoing, in the event that any improved Real Estate covered by a Mortgage is determined to be located within an area that has been identified by the Director of the Federal Emergency Management Agency as a Special Flood Hazard Area (“SFHA”), the applicable Obligated Party shall purchase and maintain flood insurance on such improved Real Estate and any Equipment and Inventory located on such Real Estate. Each Obligated Party shall also maintain flood insurance for its Inventory and Equipment that is, at any time, located in a SFHA. Without limiting the Agents’ discretion with respect to the amount of any insurance as provided by the first sentence of this Section 8.5, the amount of any flood insurance required by this Section 8.5 shall, at a minimum, comply with applicable federal regulations as required by the Flood Disaster Protection Act of 1973.
(b) For each of the insurance policies issued as required by this Section 8.5 that insures Collateral against loss or damage, each Obligated Party shall cause the Collateral Agent to be named as secured party or mortgagee and loss payee, in a manner acceptable to the Collateral Agent. Each policy of insurance shall contain (i) a clause or endorsement requiring the insurer to give not less than ten days prior written notice to the Collateral Agent in the event of cancellation of such policy for non-payment of premiums and not less than thirty days prior written notice to the Collateral Agent in the event of cancellation of such policy for any other reason whatsoever and (ii) a clause or endorsement stating that the interest of the Collateral Agent shall not be impaired or invalidated by any act or neglect of the insured Person or the owner of any premises for purposes more hazardous than are permitted by such policy. All premiums for insurance required to be maintained by this Section 8.5 shall be paid by the applicable Obligated Party when due. Certificates of insurance and, if requested by either of the Agents, photocopies of the policies shall be delivered to each of the Agents (with sufficient copies to the Administrative Agent for distribution to each of the Lenders). If any Obligated Party fails to procure (or cause to be procured) such insurance or to pay the premiums therefor when due, the Administrative Agent may, and at the direction of the Majority Lenders shall, do so from the proceeds of Revolving Loans.
(c) The Obligated Parties shall deliver all proceeds of any insurance policies covering any Collateral to the Administrative Agent. If any Obligated Party fails to
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promptly do so or if any Event of Default exists, the Collateral Agent may directly collect all insurance proceeds in respect of any loss, damage, or destruction of Collateral. All proceeds of any insurance policy covering any Collateral received by the Administrative Agent or the Collateral Agent shall be applied to the Obligations in the manner provided for in Section 4.3 as if such Collateral were the subject of a Disposition permitted pursuant to this Agreement.
Section 8.6 Condemnation. The Obligated Parties shall deliver to the Administrative Agent all proceeds received with respect to any Collateral that is the subject of any condemnation or other similar proceeding. If any Obligated Party fails to promptly do so or if any Event of Default exists, the Collateral Agent may directly collect all such proceeds. All proceeds resulting from any condemnation or other similar proceeding received by the Administrative Agent or the Collateral Agent shall be applied to the Obligations in the manner provided for in Section 4.3 as if such Collateral were the subject of a Disposition permitted pursuant to this Agreement.
Section 8.7 Environmental Law.
(a) Each Obligated Party shall conduct, and shall cause each of its Subsidiaries to conduct, its business in compliance with all Environmental Laws applicable to it, including those relating to the generation, handling, use, storage, and disposal of any Contaminant. Each Obligated Party shall take, and shall cause each of its Subsidiaries to take, prompt and appropriate action to respond to any non-compliance with any Environmental Law. Each Obligated Party shall regularly report to the Agents on any such response with respect to any circumstance that could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to result in, or has resulted in, a Material Adverse Effect.
(b) Without limiting the generality of the foregoing, the Obligated Parties shall submit to each of the Agents (with sufficient copies to the Administrative Agent for distribution to the Lenders) annually, or more frequently if requested by either of the Agents, commencing on the first Anniversary Date, and on each Anniversary Date thereafter, an update of the status of each environmental compliance or liability issue concerning any Obligated Party or any Subsidiary of an Obligated Party or any of their respective properties or operations (whether past or present), if any, that could reasonably be expected to result in, or has resulted in, liability in excess of $500,000 or otherwise could reasonably be expected to result in, or has resulted in, a Material Adverse Effect. Each Agent (or any Lender through either of the Agents) may request, in which case the Borrowers will promptly furnish or cause to be promptly furnished to each of the Agents (with sufficient copies to the Administrative Agent for distribution to the Lenders), copies of technical reports prepared or received by any Obligated Party or any Subsidiary of an Obligated Party and its communications with any Governmental Authority to determine whether such Obligated Party or Subsidiary of an Obligated Party is proceeding reasonably to correct, cure, or contest in good faith any alleged non-compliance or environmental liability. Each Obligated Party shall, at either of the Agent’s request (or at the Majority Lenders’ request through either of the Agents) and at such Obligated Party’s expense, (i) retain an independent environmental engineer
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acceptable to the Agents to evaluate any site, including tests if appropriate, where the non-compliance or alleged non-compliance with any Environmental Law has occurred and prepare and deliver to each of the Agents (with sufficient copies to the Administrative Agent for distribution to the Lenders) a report setting forth the results of such evaluation, a proposed plan for responding to any environmental problems described therein, and an estimate of the costs thereof and (ii) provide to each of the Agents (with sufficient copies to the Administrative Agent for distribution to the Lenders) a supplemental report of such engineer whenever the scope of the environmental problems (if any), or the response thereto or the estimated costs thereof, shall increase in any material respect.
Section 8.8 Compliance with ERISA. Each Obligated Party shall, and shall cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code, and Requirements of Law; (b) cause each Plan that is qualified under Section 401(a) of the Code to maintain such qualification; (c) make all required contributions to any Plan subject to Section 412 of the Code in a timely fashion; (d) not engage in a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan; and (e) not engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
Section 8.9 Mergers, Consolidations, or Sales. No Obligated Party shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise Dispose of all or any part of its property, or sell or issue any of its preferred Capital Stock, or wind up, liquidate, or dissolve, or agree to do any of the foregoing, except for (A) sales and other Dispositions of Inventory in the ordinary course of its business, (B) sales or other Dispositions of Equipment in the ordinary course of business that is (1) damaged, worn out, unserviceable, or obsolete, (2) no longer necessary for the proper conduct of business with a good faith estimated value not in excess of $100,000 in any Fiscal Year of Xxxxx, or (3) contemporaneously replaced with Equipment of comparable utility, in each case in the ordinary course of business and operations of the Obligated Parties and on a basis consistent with past practices, (C) the sale of the helicopter that is the subject of the Aircraft Mortgage or the Cessna 525 aircraft (serial number 525-0341); provided that the purchase price received by the relevant Obligated Party for each such aircraft shall not be less than the fair market value of such aircraft and at least 75% of the purchase price therefor shall be payable in cash on the closing date of such sale or by the assumption of Debt secured by such aircraft, (D) payments of cash in the ordinary course of business and as otherwise permitted by this Agreement, and (E) subject to Section 8.10, other transactions between or among the Obligated Parties in the ordinary course of each Obligated Party’s business consistent with past practices; provided that, notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided Xxxxx gives the Agents prior written notice:
(a) a Borrower (other than Xxxxx) may wind-up, dissolve, or liquidate if (i) its property is transferred to another Borrower and (ii) the Borrower acquiring such property complies with its obligations under Section 8.25 and Section 10.2 simultaneously with such acquisition;
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(b) an Obligated Party that is not a Borrower may wind-up, dissolve, or liquidate if (i) its property is transferred to another Obligated Party and (ii) the Obligated Party acquiring such property complies with its obligations under Section 8.25 and Section 10.2 simultaneously with such acquisition;
(c) a Borrower may merge or consolidate with another Borrower, provided that if Xxxxx is a party to any such merger or consolidation, Xxxxx shall be the surviving entity;
(d) an Obligated Party may transfer assets in connection with a Permitted Investment; and
(e) an Obligated Party that is not a Borrower may merge or consolidate with another Obligated Party, provided that if a Borrower is a party to any such merger or consolidation, such Borrower shall be the surviving entity, and a Subsidiary of an Obligated Party that is not an Obligated Party may merge or consolidate with an Obligated Party; provided that the Obligated Party is the survivor of any such merger or consolidation.
The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Administrative Agent’s, the Collateral Agent’s or any Lender’s consent to any sale or other Disposition of the Collateral except as expressly permitted herein.
Section 8.10 Distributions; Capital Change; Restricted Investments. Xxxxx will not, nor will it permit any of its Subsidiaries to, (a) directly or indirectly declare or pay any Distributions, except that (i) any Subsidiary of Xxxxx that is an Obligated Party may make Distributions to a Borrower, and (ii) any Subsidiary of Xxxxx that is not an Obligated Party may make Distributions to Xxxxx or any other Subsidiary of Xxxxx that is an Obligated Party, and Xxxxx may make Permitted Distributions (but only to the extent that such Permitted Distribution is not prohibited to be made under the terms of any other agreement to which Xxxxx is a party or by which it is otherwise bound), (b) make any change in its capital structure which could have an adverse effect on the ability of any of the Obligated Parties to perform any of its duties and obligations under any Loan Document or pay the Obligations when due, or (c) make any Investment other than Permitted Investments.
Section 8.11 Guaranties. No Obligated Party shall make, issue, or become liable on any Guaranty, except (a) Guaranties of Debt allowed under Section 8.12 and (b) endorsement in the ordinary course of business of negotiable instruments for deposit or collection.
Section 8.12 Debt. No Obligated Party shall incur or maintain any Debt, other than:
(a) the Obligations;
(b) the Debt existing on the Closing Date described in Schedule 8.12;
(c) Debt evidencing a refunding, renewal, or extension of the Debt described in clause (b) preceding or in clause (h) below; provided that (i) the principal amount thereof is not increased at the time of such renewal, refinancing, refunding, or extension thereof; (ii) no Obligated Party that is not an obligor or guarantor of such Debt as of the Closing
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Date shall become an obligor or guarantor thereof, (iii) the terms of such refunding, renewal, or extension are no less favorable to the Obligated Parties and the Lenders than the original Debt and (iv) the Liens, if any, securing such refunded, renewed or extended Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refunded, renewed or extended (except additions to the aircraft);
(d) Debt owing by an Obligated Party to another Obligated Party for intercompany loans and advances made for working capital in the ordinary course of business; provided that (i) all such intercompany Debt shall be evidenced by promissory notes, (ii) all such intercompany Debt owed by Xxxxx to any of its Subsidiaries shall be subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement satisfactory to the Agents, and (iii) any payment by any Subsidiary of Xxxxx under any guaranty of the Obligations or the Second Lien Debt shall result in a pro tanto reduction of the amount of any intercompany Debt owed by such Subsidiary to Xxxxx or to any of its Subsidiaries for whose benefit such payment is made;
(e) subject to clause (c)(ii) above, Guaranties permitted under Section 8.11;
(f) Debt incurred in connection with the financing of premiums payable with respect to insurance policies required to be maintained by the Obligated Parties pursuant to this Agreement;
(g) the Second Lien Debt; provided that the aggregate principal amount of such Debt under this clause (g) shall not at any time exceed $200,000,000 less all payments and prepayments of principal thereon, and the refinancing thereof (the Debt under or with respect to such refinancing, the “Refinancing Second Lien Debt” and the agreements evidencing, governing, securing or guaranteeing any of the Refinancing Second Lien Debt (as amended, modified or supplemented from time to time in a manner not in contravention of the terms of this Agreement), collectively, the “Refinancing Second Lien Debt Documents”); provided that such refinancing shall be permitted only so long as (i) all, and not a portion of, the Second Lien Debt is refinanced and the principal amount of such refinancing is not greater than the principal amount of Debt being refinanced (other than with respect to any reasonable fees and other costs of refinancing and with respect to accrued interest on the Second Lien Debt), (ii) the Liens, if any, securing such refinancing do not attach to any assets in addition to those assets securing the Second Lien Debt and those Liens shall be junior and subordinate to the Agent’s Liens and be subject to the terms and conditions of an intercreditor agreement between the Collateral Agent and the holders of the Refinancing Second Lien Debt (or an agent or trustee therefor) substantially identical to the Intercreditor Agreement or otherwise satisfactory to the Agents and the Majority Lenders, (iii) no Person that is not an obligor or guarantor of the Second Lien Debt immediately prior to the refinancing shall become an obligor or guarantor of the Refinancing Second Lien Debt, unless such Person simultaneously becomes a Guarantor, (iv) the terms under the Refinancing Second Lien Debt Documents are no less favorable in all material respects to the Obligated Parties, the Agents and the Lenders than the terms under the Second Lien Debt Documents (without in any way limiting the foregoing, in no event shall the financial or other covenants or
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events of default in the Refinancing Second Lien Debt Documents be more restrictive than those in the Second Lien Debt Documents in effect on the Closing Date), (v) no payments of principal on the Refinancing Second Lien Debt shall be scheduled to be due and payable prior to one year after the Stated Termination Date and the final scheduled maturity of the Refinancing Second Lien Debt shall be no earlier than the final scheduled maturity of the Second Lien Debt under the Second Lien Debt Documents as in effect on the Closing Date and (vi) no Default or Event of Default shall exist either immediately prior to or after giving effect to such refinancing;
(h) Capital Leases of Transportation Equipment, the New Aircraft and/or computer and office equipment and Debt to finance (as purchase money or otherwise (any such financing that is not purchase money Debt to be on terms reasonably satisfactory to the Agents)) Transportation Equipment, the New Aircraft (purchase money Debt only) and/or computer and office equipment; provided that (1) the aggregate amount of Debt (including Capital Leases but excluding Revolving Loans) relating to Transportation Equipment incurred in any Fiscal Year shall not exceed $4,000,000, (2) the aggregate amount of Debt (including Capital Leases) permitted to be outstanding under this Section 8.12 (including, without limitation, under clauses (b), (c) and (h) hereof) relating to Transportation Equipment (but excluding Revolving Loans) shall not exceed $15,000,000 at any time outstanding, (3) the aggregate amount of Debt relating to the New Aircraft (including, without limitation, any refinancings thereof) shall not exceed $6,000,000 at any time outstanding and (4) the aggregate amount of Debt (including Capital Leases) relating to computer and office equipment under this clause (h) and any refinancings thereof under clause (c) shall not exceed $2,000,000 at any time outstanding;
(i) purchase money Debt to vendors to finance the purchase from such vendors of Inventory not to exceed an aggregate amount at any time outstanding equal to $10,000,000 less the aggregate amount of inventory consigned to the Obligated Parties at such time; provided that (1) on or prior to the incurrence of any such Debt, the applicable Obligated Party has identified to the Agents in writing, in reasonable detail, the specific items of Inventory being financed thereby, (2) the applicable Obligated Party shall be able to readily identify such financed Inventory in its computer records in a manner reasonably satisfactory to the Agents; provided that during the existence of an Event of Default, if requested by either Agent, the applicable Obligated Party shall attach to such Inventory in a conspicuous location an insignia, stencil, plaque, or other form of notice indicating in a manner satisfactory to the Agents that such Inventory is being financed by such vendor, (3) the Liens created in connection with such purchase money Debt shall attach only to (and any UCC financing statements filed by any such vendor with respect to such Liens shall only cover) either (x) the specific items of Inventory being purchased and proceeds of the sale of such Inventory or (y) Inventory purchased from time to time by such Obligated Party from such vendor for which there remains an unpaid purchase price owing and proceeds of the sale of such Inventory (and a copy of each UCC financing statement filed by a vendor shall be delivered to the Agents promptly after filing thereof with the appropriate Governmental Authority), (4) the Liens created in connection with such purchase money Debt shall not attach to any Account arising from the rental of such Inventory, and (5) such Obligated Party shall cause any vendor whose
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Lien and UCC financing statement is of the type included in clause (3)(y) above to deliver to the Agents a monthly statement, in form and substance reasonably satisfactory to the Agents, detailing those items of Inventory for which there remains an unpaid purchase price and the amount of such unpaid purchase price and those items of Inventory that have been released from the vendor’s Lien since the last day of the period covered by the last monthly statement delivered to the Agents; and
(j) other unsecured Debt; provided that the aggregate amount of unsecured Debt outstanding under this clause (j) does not exceed $2,000,000 at any time outstanding.
Section 8.13 Prepayment; Amendment of Debt Agreements.
(a) No Obligated Party shall voluntarily prepay or redeem any Debt, except the Obligations or through the proceeds of a refinancing permitted under Section 8.12(c) or (g) or as permitted under clause (c) or (d) below.
(b) No Obligated Party shall, directly or indirectly, amend, modify, supplement, waive compliance with or consent to any departure from any provision of (1) existing Debt (other than the Second Lien Debt Documents or the Refinancing Second Lien Debt Documents) or of any agreement (including any purchase agreement, indenture, loan agreement or security agreement) relating thereto (other than the Second Lien Debt Documents or the Refinancing Second Lien Debt Documents), other than any amendments or modifications to such Debt which do not in any way materially adversely affect the interests of the Credit Providers and are otherwise permitted under Section 8.12; (2) any of the Second Lien Debt Documents or any of the Refinancing Second Lien Debt Documents in any material respect; or (3) the GE Sale and Leaseback Agreement or any related document in any material respect.
(c) In no event shall any Borrower or any other Obligated Party make any payment or prepayment of principal or interest on any Second Lien Debt or any Refinancing Second Lien Debt, except (i) scheduled payments of interest on the Second Lien Debt and the Refinancing Second Lien Debt when due and payable, (ii) the scheduled payment of principal on the Second Lien Debt or the Refinancing Second Lien Debt, as the case may be, on the stated maturity date thereof and (iii) in the case of Second Lien Debt, through the proceeds of a refinancing permitted under Section 8.12(g).
(d) In no event shall any Borrower or any other Obligated Party make any payment or prepayment of any obligation or liability under or in connection with the GE Sale and Leaseback Agreement or purchase any Inventory subject to the GE Sale and Leaseback Agreement, except in connection with the termination of the lease arrangements under the GE Sale and Leaseback Agreement, the payment in full of all obligations under the GE Sale and Leaseback Agreement (the amount of which payment shall be determined in accordance with Schedule 8.13) and the concurrent purchase by Xxxxx of all Inventory subject to the GE Sale and Leaseback Agreement, but only so long as no Default or Event of Default exists immediately prior to or after giving effect to such payment and purchase.
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Section 8.14 Transactions with Affiliates. Except as otherwise provided in Section 8.10, Section 8.11, Section 8.12 and this Section 8.14 or except as set forth on Schedule 8.14, during the term of this Agreement, no Obligated Party shall sell, transfer, distribute, or pay any money or property, including, but not limited to, any fees or expenses of any nature (including, but not limited to, any fees or expenses for management services), to any Affiliate that is not a Borrower, or lend or advance money or property to any Affiliate that is not a Borrower, or invest in (by capital contribution or otherwise) or purchase or repurchase any Capital Stock or indebtedness, or any property, of any Affiliate that is not a Borrower, or become liable on any Guaranty of the indebtedness, liabilities, dividends, or other obligations of any Affiliate that is not a Borrower, or enter into a lease for real or personal property with any Affiliate that is not a Borrower or extend or renew any such lease (whether such lease is existing on the Closing Date or entered into thereafter). Notwithstanding the foregoing, if no Default or Event of Default is in existence or would result therefrom, an Obligated Party may engage in transactions with an Affiliate that is not a Borrower (including, without limitation, any such transaction that constitutes an extension or renewal of a transaction permitted under this Section 8.14 that was in existence on the Original Closing Date) in the ordinary course of such Obligated Party’s business consistent with past practices in amounts and upon terms fully disclosed to the Agents and the Lenders and no less favorable to such Obligated Party than would be obtained in a comparable arm’s-length transaction with a third party who is not an Affiliate; provided, that (i) with respect to any transaction or series of transactions with an Affiliate that is not a Borrower involving aggregate consideration in excess of $500,000, such transaction shall require the approval of the Board of Directors of Xxxxx and evidence of such approval shall be delivered to the Agents; provided further, that with respect to any transaction or series of transactions with an Affiliate that is not a Borrower involving aggregate consideration in excess of $2,500,000, the relevant Obligated Party shall obtain a favorable written opinion as to the fairness of such transaction to such Obligated Party from a financial point of view from an independent investment banking firm of national reputation in the U.S. or, if pertaining to a matter for which such investment banking firms do not customarily render such opinions, an appraisal or valuation firm of national reputation in the U.S., and a copy of such opinion shall be delivered to the Agents.
Section 8.15 Investment Banking and Finder’s Fees. No Obligated Party shall pay or agree to pay, or reimburse any other party with respect to, any investment banking or similar or related fee, underwriter’s fee, finder’s fee, or broker’s fee to any Person in connection with this Agreement. The Obligated Parties shall defend and indemnify the Agents and the Lenders against and hold them harmless from (a) all claims of any Person that any Obligated Party is obligated to pay any such fees and (b) all costs and expenses (including reasonable attorneys’ fees and Attorney Costs) incurred by either Agent and/or any Lender in connection therewith.
Section 8.16 Business Conducted. The Obligated Parties shall not engage, directly or indirectly, in any line of business other than the lines of business in which the Obligated Parties are engaged on the Closing Date and those reasonably similar, related, or incidental thereto.
(a) No Obligated Party shall create, incur, assume, or permit to exist, and will defend the Collateral against, and take such other action as is necessary to remove, any
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Lien on any property now owned or hereafter acquired by it, except Permitted Liens. Each Obligated Party will defend the right, title, and interest of the Collateral Agent in and to any of such Obligated Party’s rights under the Collateral against the claims and demands of all Persons whomsoever. Each Obligated Party will advise each Agent promptly, in reasonable detail, (i) of any Lien (other than Permitted Liens) or claim made or asserted against any of the Collateral and (ii) of the occurrence of any other event with respect to the Collateral that could reasonably be expected to have, or has resulted in, a Material Adverse Effect.
(b) Other than as set forth in the GE Sale and Leaseback Agreement or in connection with the creation of any Debt under Section 8.12(c), (h) or (i) or in any agreement relating to the lease of an Excluded Asset by an Obligated Party as lessee or sublessee, no Obligated Party will enter into or become subject to any Negative Pledge; provided that any Negative Pledge under the GE Sale and Leaseback Agreement shall be limited to property being leased to Xxxxx thereunder; and provided further that any Negative Pledge entered into or existing in connection with the creation of Debt under Section 8.12(c), (h) or (i) or in any agreement relating to the lease of an Excluded Asset by an Obligated Party as lessee or sublessee shall be limited to the applicable property being financed or leased, as the case may be.
(c) No Obligated Party shall create, incur, assume or otherwise cause or permit to exist or become effective any consensual encumbrance, condition, prohibition or restriction of any kind on any Obligated Party’s right to: (a) incur or repay Debt (whether owing to any Obligated Party or otherwise); (b) guarantee the Obligations pursuant to any Guaranty Agreement; (c) amend, modify, extend or renew any agreement evidencing Debt; (d) repay any obligations owed to any Obligated Party; (e) make loans or advances to any Obligated Party; (f) pay dividends or make any other distributions on any Subsidiary’s Capital Stock owned by Xxxxx or any other Subsidiary of Xxxxx; or (g) transfer any of its property to any Obligated Party, in each case except as provided in this Agreement, the other Loan Documents and the Second Lien Debt Documents or the Refinancing Second Lien Debt Documents and, in the case of clause (g), as provided in the GE Sale and Leaseback Agreement or in connection with any Debt permitted under Section 8.12(h) or (i), or in any agreement relating to the lease of an Excluded Asset by any Obligated Party as lessee or sublessee.
Section 8.18 Sale and Leaseback Transactions. No Obligated Party shall, directly or indirectly, enter into or otherwise be subject to any arrangement with any Person providing for such Obligated Party to lease or rent property that such Obligated Party has sold or will sell or otherwise transfer to such Person other than pursuant to the GE Sale and Leaseback Agreement (but only to the extent of the Inventory subject thereto on the Original Closing Date).
Section 8.19 New Subsidiaries. No Obligated Party shall, directly or indirectly, organize, create, acquire, or permit to exist any Subsidiary without the prior written consent of the Majority Lenders, other than those listed on Schedule 7.4.
Section 8.20 Fiscal Year. Each Obligated Party (other than Xxxxx) shall cause its Fiscal Year to be the same as Xxxxx’x. Xxxxx shall not change its Fiscal Year.
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Section 8.21 Financial Covenants.
(a) Fixed Charge Coverage Ratio. As of the last day of each Fiscal Quarter of Xxxxx, the Obligated Parties will not permit the Fixed Charge Coverage Ratio of Xxxxx and its Subsidiaries for any Test Period to be less than 1.00 to 1.00:
(b) Leverage Ratio. As of the last day of each Fiscal Quarter of Xxxxx, the Obligated Parties will not permit the Leverage Ratio of Xxxxx and its Subsidiaries for any Test Period to exceed the ratio specified corresponding to the applicable Fiscal Quarter end in the table below, respectively:
|
Fiscal Quarter End |
|
Leverage Ratio |
|
|
September 30, 2005 |
|
5.10 to 1.00 |
|
|
December 31, 2005 |
|
5.10 to 1.00 |
|
|
March 31, 2006 |
|
5.10 to 1.00 |
|
|
June 30, 2006 |
|
5.10 to 1.00 |
|