XXXXXXX FINANCE CO.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of August 28, 1998, and entered into by
and among XXXXXXX FINANCE CO., a Delaware corporation ("FINANCE CO."), THE
LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "LENDER" and collectively as "LENDERS"), DLJ CAPITAL FUNDING, INC.
("DLJ"), as syndication agent hereunder for Lenders (in such capacity,
"SYNDICATION AGENT"), and THE FIRST NATIONAL BANK OF CHICAGO, as administrative
agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT").
R E C I T A L S
WHEREAS, DLJMB has formed Parent, Finance Co. and Acquisition Co. for the
purpose of tendering in the Tender Offer for the purchase of all the outstanding
DAH Common Stock and to acquire any DAH Common Stock not so purchased in the
Tender Offer in the Merger (capitalized terms used herein without definition
shall have the meanings set forth therefor in subsection 1.1 of this Agreement);
WHEREAS, as soon after the consummation of the Tender Offer as practical,
Acquisition Co. and DAH will consummate the Merger and as soon thereafter as
practical Finance Co. and DAH will consummate the Second Merger, all with the
effect that DLJMB and management of DAH and its Subsidiaries will indirectly own
all of the outstanding capital stock of DAH;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company to be used for the purposes of providing funds for (x) the Acquisition
Financing Requirements, (y) working capital and/or other general purposes of
Company and its Subsidiaries and (z) financing Permitted Acquisitions;
WHEREAS, Parent and Acquisition Co. have agreed to guarantee the
Obligations hereunder and under the other Loan Documents and Parent has agreed
to secure its guaranty by granting to Administrative Agent on behalf of Lenders,
a first priority Lien on all of the capital stock of Company;
WHEREAS, upon consummation of the Merger and the Second Merger, Company
will secure all of the Obligations hereunder and under the other Loan Documents
by granting to Administrative Agent, on behalf of Lenders, a first priority Lien
on substantially all of its personal property and its real property, including a
pledge of all of the capital stock of its Domestic Subsidiaries and a pledge of
65% of the capital stock of its Foreign Subsidiaries that are owned by Company
or a Domestic Subsidiary;
WHEREAS, upon consummation of the Merger and the Second Merger, each of
Company's Domestic Subsidiaries will guarantee the Obligations hereunder and
under the other Loan Documents and secure its guaranty by granting to
Administrative Agent on behalf of Lenders, a first priority Lien on
substantially all of its personal property and real property,
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including a pledge of all of the capital stock of each of its Domestic
Subsidiaries and 65% of the capital stock of each of its direct Foreign
Subsidiaries;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders, Syndication Agent
and Administrative Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS.
The following terms used in this Agreement shall have the following meanings:
"ACQUIRED CONTROLLED PERSON" means any Person (i) in which Company or
any of its Subsidiaries has made an Investment permitted under subsection
7.3(viii) and (ii) as to which Company or such Subsidiary exercises control.
For purposes hereof, "control" means the power to appoint a majority of the
board of directors (or other equivalent governing body) of such Person or to
otherwise direct or cause the direction of the management or policies of such
Person, whether by contractual arrangement or otherwise.
"ACQUISITION CO." means XxXxxxx Acquisition Co., a Delaware corporation.
"ACQUISITION CO. GUARANTY" means the Acquisition Co. Guaranty executed
and delivered by Acquisition Co. on the Closing Date, substantially in the
form of EXHIBIT XVII hereto, as such Acquisition Co. Guaranty may be amended,
supplemented or otherwise modified from time to time.
"ACQUISITION FINANCING REQUIREMENTS" means the aggregate of all amounts
necessary (i) to finance the purchase price of the DAH Common Stock in the
Tender Offer and the Merger, (ii) to repay in full the Existing DAH Debt and
(iii) to pay Transaction Costs.
"ACQUISITION LENDER" means a Lender having an Acquisition Loan
Commitment.
"ACQUISITION LOANS" means the Loans made by Acquisition Lenders to
Company pursuant to subsection 2.1A(v).
"ACQUISITION LOAN COMMITMENT" means the commitment of an Acquisition
Lender to make Acquisition Loans to Company pursuant to subsection 2.1A(v),
and "ACQUISITION LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"ACQUISITION LOAN COMMITMENT TERMINATION DATE" means September 30, 2004.
"ACQUISITION LOAN EXPOSURE" means, with respect to any Acquisition Lender
as of any date of determination (i) prior to the termination of the Acquisition
Loan Commitments, that Acquisition Lender's Acquisition Loan Commitment and
(ii) after the termination of the Acquisition Loan Commitments, the aggregate
outstanding principal amount of the Acquisition Loans of that Acquisition
Lender.
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"ACQUISITION NOTES" means (i) the promissory notes of Company issued
pursuant to subsection 2.1D(v) on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection 10.1B(i)
in connection with assignments of the Acquisition Loan Commitments and
Acquisition Loans of any Acquisition Lenders, in each case substantially in
the form of EXHIBIT VIII annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
"ADJUSTED EURODOLLAR RATE" means, with respect to a Eurodollar Rate
Loan for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period. The Eurodollar Rate shall be rounded to the next higher
multiple of 1/100 of 1% if the rate is not such a multiple.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.3A.
"AFFECTED LENDER" has the meaning assigned to that term in subsection
2.6C.
"AFFILIATE", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise.
"AFFILIATED FUND" means, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"AGENTS" means, collectively, the Syndication Agent and the
Administrative Agent.
"AGREEMENT" means this Credit Agreement dated as of August 28, 1998,
as it may be amended, supplemented or otherwise modified from time to time.
"ANNUALIZED" means (i) with respect to the Fiscal Quarter of Company
ending December 31, 1998, the applicable amount for such Fiscal Quarter
multiplied by four, (ii) with respect to the Fiscal Quarter of Company ending
March 31, 1999, the applicable amount for such Fiscal Quarter and the
immediately preceding Fiscal Quarter multiplied by two, and (iii) with
respect to the Fiscal Quarter of Company ending June 30, 1999, the applicable
amount for such Fiscal Quarter and the immediately preceding two Fiscal
Quarters multiplied by one and one-third.
"ARRANGER" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
as arranger of the credit facilities described herein.
"ASSET SALE" means the sale, lease, assignment or other transfer
(whether voluntary or involuntary) for value (collectively, a "transfer") by
Company or any of its Subsidiaries to any Person other than Company or any of
its Wholly-Owned Subsidiaries of (i) any of the equity
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ownership of any of Company's Subsidiaries, (ii) substantially all of the
assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
Company or any of its Subsidiaries (other than (a) inventory and obsolete or
worn out equipment sold in the ordinary course of business, (b) Cash
Equivalents, and (c) any such other assets to the extent that the aggregate
value of such assets transferred in any single transaction or related series
of transactions is equal to $250,000 or less).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in substantially
the form of EXHIBIT XII annexed hereto.
"ASSUMED INDEBTEDNESS" means Indebtedness of a Person which (i) is in
existence at the time such Person becomes a Subsidiary of Company, or (ii) is
assumed in connection with an Investment in or acquisition of such Person,
and has not been incurred or created by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Subsidiary of
Company.
"AUTHORIZED OFFICER" means, relative to any Loan Party, its chief
executive officer, president, treasurer, chief financial officer or chief
accounting officer and any of its other officers whose signatures and
incumbency shall have been certified to Administrative Agent and the Lenders
pursuant to Sections 4.1A(iv) and 4.2A(iv).
"AVTECH" means Avtech corporation, a Washington corporation, and its
successors.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, for any day, a rate of interest per annum equal to
the higher of (i) the Corporate Base Rate for such day and (ii) the sum of
the Federal Funds Effective Rate for such day plus 1/2% per annum.
"BASE RATE LOANS" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Base Rate, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, New York and Los Angeles for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and Los Angeles for the conduct of
substantially all of their commercial lending activities.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without
payment of a penalty.
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"CASH" means money, currency or a credit balance in a Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the
full faith and credit of the United States, in each case maturing within one
year after such date; (ii) marketable direct obligations issued by any state
of the United States of America or any political subdivision of any such
state or any public instrumentality thereof, in each case maturing within one
year after such date and having, at the time of the acquisition thereof, the
highest rating obtainable from either Standard & Poor's Ratings Group ("S&P")
or Xxxxx'x Investors Service, Inc. ("MOODY'S"); (iii) commercial paper
maturing no more than 270 days from the date of creation thereof and having,
at the time of the acquisition thereof, a rating of at least A-1 from S&P or
at least P-1 from Moody's; (iv) certificates of deposit or bankers'
acceptances maturing within one year after such date and issued or accepted
by any Lender or by any commercial bank (including a U.S. branch of a foreign
bank) that is a member of the Federal Reserve and has a combined capital and
surplus and undivided profits of at least $500,000,000); (v) repurchase
agreements which (a) are entered into with any entity referred to in clauses
(iii) or (iv) above or any other financial institution whose unsecured
long-term debt (or the unsecured long-term debt of whose holding company) is
rated at least A- or better by S&P or A3 or better by Moody's and maturing
not more than one year after such time; and (b) are secured by a fully
perfected security interest in securities of a type referred to in clauses
(i) or (ii) above and which have a market value at the time such repurchase
agreement is entered into of not less than 100% of the repurchase obligation
of such counterparty entity with whom such repurchase agreement has been
entered into; (vi) short-term tax exempt securities that are rated not lower
than MIG-1/1+ or either Moody's or S&P with provisions for liquidity or
maturity accommodations of 183 days or less; (vii) shares of any money
market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) through
(vi) and as to which withdrawals are permitted at least every 90 days and
(viii) in the case of any Subsidiary of the Company organized or having its
principal place of business outside the United States, investments
denominated in the currency of the jurisdiction in which such Subsidiary is
organized or has its principal place of business which are similar to the
items specified in clauses (i) through (vii) above.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in
the form of EXHIBIT XIII annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iv).
"CHANGE IN CONTROL" means (i) the failure of Parent at any time to
own, directly or indirectly, free and clear of all Liens and encumbrances
(other than Liens created under the Loan Documents and Liens described in
clauses (i) and (iv) of the definition of "Permitted Encumbrances"), all
right, title and interest in 100% of the capital stock of the Company; (ii)
the failure of the DLJMB and the Affiliates of any entity included in the
definition of "DLJMB" to own at least 51% (on a fully diluted basis) of the
economic and voting interest in the voting stock of Parent; (iii) the failure
of DLJMB and the Affiliates of any entity included in the definition of
"DLJMB" at any time to have the right to designate or nominate at least 51%
of the Board of Directors of Parent; or (iv) the occurrence of a "Change of
Control" as defined under any
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agreement governing any Subordinated Indebtedness issued by Company or the
PIK Preferred Stock or PIK Notes issued by Parent.
"CLOSING DATE" means the date on or before October 31, 1998 on which
the Tranche B Term Loans are made.
"CO" means the United States Copyright Office or any successor or
substitute office in which filings are necessary or, in the opinion of
Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including capital stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in the
Collateral Account Agreement.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account Agreement
executed and delivered by Company and Administrative Agent on the Closing Date,
substantially in the form of EXHIBIT XXIII annexed hereto, as such Collateral
Account Agreement may hereafter be amended, supplemented or otherwise modified
from time to time.
"COLLATERAL DOCUMENTS" means (i) prior to the consummation of the Merger
and the Second Merger, the Parent Pledge Agreement, the Finance Co. Pledge
Agreement, the Collateral Account Agreement and the Investment Account Agreement
and (ii) from and after the consummation of the Merger and the Second Merger,
the Parent Pledge Agreement, the Security Agreement, the DAH Pledge Agreement,
the Subsidiary Pledge Agreements and the Mortgages, and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.
"COMMITMENTS" means the commitments of Lenders to make Loans as set forth
in subsection 2.1A.
"COMPANY" means (i) until the consummation of the Second Merger, Finance
Co. and (ii) upon and after the consummation of the Second Merger, DAH.
"COMPANY EXCESS CASH FLOW AMOUNT" means, at any date, the portion of
Consolidated Excess Cash Flow for each Fiscal Year ending prior to such date
(commencing with the Fiscal Year Ending December 31, 1999) not required to be
applied to prepay the Loans in accordance with subsection 2.4B(iii)(d).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT IX annexed hereto delivered to Agents and Lenders by Company pursuant to
subsection 6.1(iii).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the sum of the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and
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including that portion of Capital Leases which is capitalized on the
consolidated balance sheet of Company and its Subsidiaries) by Company and
its Subsidiaries during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or comparable items
reflected in the consolidated statement of cash flows of Company and its
Subsidiaries; PROVIDED that Consolidated Capital Expenditures shall not
include any such expenditures (x) made from the proceeds of (i) Net
Insurance/Condemnation Proceeds as permitted under Section 7.7(ix) or (ii)
proceeds from Assets Sales permitted pursuant to Section 7.7(xi) or (iii)
proceeds from assets dispositions permitted by subsection 7.7(iii) , or
dispositions of assets excluded from the definition of Asset Sales pursuant
to clause (c) of the definition of "Asset Sale" or (y) that constitute an
Investment made under subsection 7.3 (other than subsection 7.3(vii)).
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination, the
total assets of Company and its Subsidiaries on a consolidated basis which may
properly be classified as current assets in conformity with GAAP, excluding Cash
and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of any Indebtedness that by
its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is renewable or extendable at the option of
Company or a Subsidiary from, the date of creation thereof.
"CONSOLIDATED EBITDA" means, for any period, subject to subsections
1.2(b) and 1.2(c), the sum (without duplication) of the amounts for such
period of (i) Consolidated Net Income, (ii) any amount deducted on account of
minority interests in determining Consolidated Net Income, (iii) Consolidated
Interest Expense, (iv) any non-capitalized transaction costs incurred in
connection with actual or proposed financings, acquisitions or divestitures
(including, but not limited to, financing and refinancing fees and costs
incurred in connection with the Transaction), (v) all amounts deducted on
account of income taxes in determining Consolidated Net Income, (vi) total
depreciation expense, (vii) total amortization expense, (viii) the amount
deducted in determining Consolidated Net Income representing any net loss (or
less any net gain) realized in connection with any sale, lease, conveyance or
other disposition of any asset (other than in the ordinary course of business
and other than from Company or any of its Subsidiaries to Company or any of
its Subsidiaries), (ix) the amount deducted in determining Consolidated Net
Income representing any extraordinary or non-recurring loss, (x) foreign
currency translation and transaction losses (or minus foreign currency
translation and transaction gains) and (xi) any other non-cash items reducing
Consolidated Net Income LESS (a) other items increasing Consolidated Net
Income constituting extraordinary gains and (b) Restricted Junior Payments of
the type referred to in clause (iii)(x) of Subsection 7.5 made during such
period, all of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment MINUS (ii) the sum, without duplication, of the amounts for such
period of (a) mandatory and scheduled repayments of the Loans and scheduled,
mandatory and optional repayments of other Consolidated Total Debt (excluding
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repayments of Working Capital Loans and Acquisition Loans except to the
extent the Working Capital Loan Commitments or the Acquisition Loan
Commitments, as the case may be, are permanently reduced in connection with
such repayments) in each case to the extent actually made during such period,
(b) Consolidated Capital Expenditures paid in cash (without duplication, net
of any proceeds of any related financings with respect to such expenditures),
(c) Consolidated Interest Expense paid in cash, (d) the amount of taxes based
on income of Company and its Subsidiaries paid or payable in cash during such
period, (e) the amount paid for Permitted Acquisitions permitted and actually
made under subsection 7.7(viii) and Investments permitted and actually made
under subsection 7.3(xiii) but only to extent paid in cash from Company's or
its Subsidiaries cash balances; (f) any payments with respect to Earn-Outs
actually paid during such period, (g) gains on any sale, lease, conveyance,
or other disposition of any asset (other than in the ordinary course of
business), and (h) any distributions with respect to minority interests made
during such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, at the end of any
Fiscal Quarter, subject to subsections 1.2(b) and 1.2(c), the ratio computed
for the period consisting of such Fiscal Quarter and each of the three
immediately preceding Fiscal Quarters of Consolidated EBITDA to Consolidated
Fixed Charges; PROVIDED that with respect to Consolidated Fixed Charges for
the Fiscal Quarters ending December 31, 1998, March 31, 1999 and June 30,
1999, Consolidated Interest Expense and scheduled principal payments on
Consolidated Total Debt shall be determined on an Annualized basis.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of the amounts for such period of (i) the cash portion of
Consolidated Interest Expense (net of cash interest income), (ii) taxes
based on income actually paid or payable, (iii) scheduled principal payments
in respect of Consolidated Total Debt, (iv) Consolidated Capital Expenditures
actually made pursuant to clause (i) of subsection 7.8 (excluding the portion
of such Consolidated Capital Expenditures constituting Indebtedness under a
Capital Lease or purchase money Indebtedness and excluding the portion of
such Consolidated Capital Expenditures made pursuant to clause (i) of
subsection 7.8 in reliance on the $10,000,000 incremental basket provided
therein), and (v) dividend payments made by Company to Parent to enable
Parent to pay cash interest or dividends on the Parent P-I-K Securities
pursuant to subsection 7.5(iv), all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, at the end of any Fiscal
Quarter, subject to subsections 1.2(b) and 1.2(c), the ratio computed for the
period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of Consolidated EBITDA to the cash portion of
Consolidated Interest Expense other than commitment fees to the extent
included therein (net of cash interest income); PROVIDED that for the Fiscal
Quarters ending December 31, 1998, March 31, 1999 and June 30, 1999,
Consolidated Interest Expense shall be determined on an Annualized basis.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net
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costs under Interest Rate Agreements determined in accordance with GAAP, but
excluding, to the extent included in such total interest expense, up-front
fees and expenses and the amortization of all deferred financing costs.
"CONSOLIDATED LEVERAGE RATIO" means, at the end of any Fiscal Quarter,
subject to subsections 1.2(b) and 1.2(c), the ratio of (a) Consolidated Total
Debt (less Cash and Cash Equivalents) as of the last day of such Fiscal
Quarter to (b) Consolidated EBITDA for the consecutive four Fiscal Quarters
ending on the last day of such Fiscal Quarter.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness and Contingent
Obligations with respect to letters of credit (other than letters of credit
issued in connection with trade payables) of Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess (or deficit) of Consolidated Current Assets over Consolidated
Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or
is less than) Consolidated Working Capital as of the end of such period.
"CONTINGENT OBLIGATION", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect
to any Indebtedness of another if the primary purpose or intent thereof by
the Person incurring the Contingent Obligation is to provide assurance to the
obligee of such Indebtedness of another that such Indebtedness of another
will be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such Indebtedness will be protected (in
whole or in part) against loss in respect thereof, (ii) with respect to any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings, or (iii) under
Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in
the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of another, (b) the
obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (X) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (Y) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (X) or
(Y) of this sentence, the primary purpose or intent thereof is as described
in the preceding sentence. The amount of any Contingent Obligation shall be
equal to
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the amount of the obligation so guaranteed or otherwise supported or, if
less, the amount to which such Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"CORPORATE BASE RATE" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement to which Company or any of its Subsidiaries
is a party.
"DAH" means XxXxxxx Aircraft Holdings, Inc., a Delaware corporation.
"DAH COMMON STOCK" means the common stock, $0.01 par value, of DAH.
"DAH PLEDGE AGREEMENT" means the DAH Pledge Agreement executed and
delivered by DAH on the Merger Date with respect to DAH's Subsidiaries on the
Merger Date, substantially in the form of EXHIBIT XV annexed hereto, as such
DAH Pledge Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DLJ" has the meaning assigned to that term in the introduction to
this Agreement.
"DLJMB" means DLJ Merchant Banking Partners II, L.P., certain
affiliated funds and entities described in the Tender Offer Materials and
shall include Global Technology Partners, L.L.C.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means a Subsidiary organized under the laws of
the United States or any state or territory thereof or the District of
Columbia.
"EARN-OUTS" means any obligations by Company or any of its
Subsidiaries to pay any amounts constituting the payment of deferred purchase
price with respect to any acquisition of a business (whether through the
purchase of assets or shares of capital stock), the amount of which payments
is calculated on the basis of, or by reference to, bona fide financial or
other operating performance of such business or specified portion thereof or
any other similar arrangement.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized
10
under the laws of the United States or any state thereof; (iii) a commercial
bank organized under the laws of any other country or a political subdivision
thereof; PROVIDED that (x) such bank is acting through a branch or agency
located in the United States or (y) such bank is organized under the laws of
a country that is a member of the Organization for Economic Cooperation and
Development or a political subdivision of such country; and (iv) any other
entity which extends credit or buys or invests in loans as one of its
businesses including insurance companies, mutual funds and lease financing
companies; and (B) any Lender, any Affiliate of any Lender and any Affiliated
Fund of any Lender; PROVIDED that no Affiliate of Company shall be an
Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is or was maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive, by any governmental authority or any other Person,
arising (i) pursuant to or in connection with any actual or alleged violation
of any Environmental Law, (ii) in connection with any Hazardous Materials or
any actual or alleged Hazardous Materials Activity, or (iii) in connection
with any actual or alleged damage, injury, threat or harm to natural
resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of governmental authorities relating to
(i) environmental matters, including those relating to any Hazardous Materials
Activity, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) the effect of the environment on human, plant or
animal health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.), the
Hazardous Materials Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.), the Clean
Air Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances Control Act (15
U.S.C. Section 2601 ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide
Act (7 U.S.C. Section 136 ET SEQ.), the Oil Pollution Act (33 U.S.C. Section
2701 ET SEQ.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. Section 11001 ET SEQ.), each as amended or supplemented, any analogous
present or future state or local statutes or laws, and any regulations
promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and
(iii) any member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that Person, any corporation
described in
11
clause (i) above or any trade or business described in clause (ii) above is a
member. Any former ERISA Affiliate of Company or any of its Subsidiaries
shall continue to be considered an ERISA Affiliate of Company or such
Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice
to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution
to a Multiemployer Plan; (iii) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by Company, any of its Subsidiaries or any of
their respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting
in liability pursuant to Section 4063 or 4064 of ERISA; (v) the institution
by the PBGC of proceedings to terminate any Pension Plan, or the occurrence
of any event or condition which could reasonably constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan; (vi) the imposition of liability on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c)
of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of
their respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan
if there is any potential liability therefor, or the receipt by Company, any
of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or
has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of
an act or omission which could reasonably give rise to the imposition on
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
of fines, penalties, taxes or related charges under Chapter 43 of the
Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or
Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the
assets thereof, or against Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify under Section
401(a) of the Internal Revenue Code, or the failure of any trust forming part
of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
12
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan
for the relevant Interest Period, the rate determined by Administrative Agent
to be the rate at which First Chicago offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of First Chicago's
relevant Eurodollar Rate Loan and having a maturity equal to such Interest
Period.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"EXCLUDED EQUITY PROCEEDS" means any proceeds received by Parent,
Company or any of its Subsidiaries from the issuance or sale or exercise of
their respective equity Securities, in each case pursuant to any such sale or
issuance or exercise constituting or resulting from (i) capital contributions
to Company, or equity Securities issuances by Parent, Company or any of its
Subsidiaries, including without limitation, the issuance of the PIK Preferred
Stock and any such issuances as payment of accrued dividends on the PIK
Preferred Stock (excluding any such contributions or issuance resulting from
a public offering or a widely distributed private offering of common equity
exempted from the registration requirements of Section 5 of the Securities
Act of 1933, as amended ("Section 5") other than any such issuances (A) the
proceeds of which are required to be and are applied to refinance the Senior
Subordinated Bridge Notes then outstanding, in accordance with their terms or
(B) resulting from or in connection with any resale by DLJMB of the PIK
Preferred Stock, or any subsequent registration thereof under Section 5),
(ii) any subscription agreements, incentive plan or similar arrangements with
any officer, employee or director of Parent, the Company or any of its
Subsidiaries, (iii) any loan made by the Company or any of its Subsidiaries
pursuant to Section 7.3(xi), (iv) the sale of any equity Securities of Parent
to any officer, director or employee of Parent, the Company or any of their
Subsidiaries; PROVIDED such proceeds do not exceed $5,000,000 in the
aggregate, (v) the exercise of any options or warrants issued to any officer,
employee or director of Parent, the Company or any of its Subsidiaries or to
any purchasers of the PIK Preferred Stock, or (vi) issuances by any
Subsidiary of Company to Company or any other Subsidiary of Company or by
Company to Parent or any Subsidiary of Company.
"EXISTING DAH DEBT" means the Loan and Security Agreement dated as of
April 15, 1997, as amended, among DAH, Bank of America Illinois, as Agent and
the lenders signatory thereto.
"FACILITIES" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Company or any of its Subsidiaries or any of
their respective predecessors.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the
13
Federal Reserve System arranged by Federal funds brokers on such day, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 A.M. (Chicago time) on such
day on such transactions received by Administrative Agent from three Federal
funds brokers of recognized standing selected by Administrative Agent in its
sole discretion.
"FINANCE CO." means XxXxxxx Finance Co., a Delaware corporation.
"FINANCE CO. PLEDGE AGREEMENT" means the Finance Co. Pledge Agreement
executed and delivered by Finance Co. on the Closing Date with respect to
Acquisition Co, substantially in the form of EXHIBIT XIV annexed hereto, as such
Finance Co. Pledge Agreement may be amended, supplemented or otherwise modified
from time to time.
"FINANCIAL PLAN" has the meaning assigned to that term in subsection
6.1(xi).
"FIRST CHICAGO" means The First National Bank of Chicago in its
individual capacity, and its successors.
"FIRST PRIORITY" means, with respect to any Lien purported to be created
in any Collateral pursuant to any Collateral Document, that (i) such Lien has
priority over any other Lien on such Collateral (other than Permitted
Encumbrances and other Liens permitted pursuant to subsections 7.2A(iii), (iv),
(vi), (vii), (viii), (ix) and (to the extent arising in connection with Capital
Leases and purchase money Indebtedness and applying to the assets whose
acquisition or improvement was financed therewith) (x) and (ii) such Lien is the
only Lien (other than Permitted Encumbrances and Liens permitted pursuant to
subsection 7.2A) to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING AND PAYMENT OFFICE" means (i) the office of Administrative Agent
and Swing Line Lender located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx,
00000 or (ii) such other office of Administrative Agent and Swing Line Lender as
may from time to time hereafter be designated as such in a written notice
delivered by Administrative Agent and Swing Line Lender to Company and each
Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and
14
pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board, in each case as the same are applicable
to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"GUARANTIES" means the Parent Guaranty, the Acquisition Co. Guaranty and
the Subsidiary Guaranty.
"HAZARDOUS MATERIALS" means (i) any chemical, material or substance at
any time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons at the Facilities or to the indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, Release, discharge, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials, and any corrective action or
response action with respect to any of the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"IMMATERIAL SUBSIDIARY" means each Subsidiary of Company that (a)
accounted for no more than 3% of the consolidated gross revenues of Company
and its Subsidiaries for the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 6.1(i) or 6.1(ii), financial statements
have been, or are required to have been, delivered by Company on or before
the date as of which any such determination is made, as reflected in such
financial statements; and (b) has assets which represent no more than 3% of
the consolidated gross assets of Company and its Subsidiaries as of the last
day of the most recently completed Fiscal Quarter with respect to which,
pursuant to Section 6.1(i) or 6.1(ii), financial statements have been, or are
required to
15
have been, delivered by Company on or before the date as of which any such
determination is made, as reflected in such financial statements.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of Company, any qualification or exception to such opinion or
certification (i) which is of a "going concern" or similar nature, (ii) which
relates to the limited scope of examination of matters relevant to such
financial statement (except, in the case of matters relating to any acquired
business or assets, in respect of the period prior to the acquisition by Company
of such business or asset), or (iii) which relates to the treatment or
classification of any item in such financial statement and which, as a condition
to its removal, would require an adjustment to such item the effect of which
would be to cause Company to be in default of any of its obligations under
Section 7.6.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is
(a) except in the case of accounts payable arising in the ordinary course of
business, due more than six months from the date of incurrence of the obligation
in respect thereof or (b) evidenced by a note or similar written instrument
(including in respect of Earn-Outs, but solely to the extent included as
liabilities in accordance with GAAP), and (v) all obligations of the types
referred to in clauses (i) through (iv) above, secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person. Obligations under Interest Rate
Agreements and Currency Agreements constitute (X) in the case of Hedge
Agreements, Contingent Obligations, and (Y) in all other cases, Investments, and
in neither case constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection 10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"INTERCOMPANY NOTE RELATING TO TRANCHE A TERM LOANS AND WORKING CAPITAL
LOANS" means the Promissory Note executed by DAH in favor of Finance Co. on the
Closing Date, substantially in the form of EXHIBIT XXVIII annexed hereto,
evidencing the borrowings made by DAH from Finance Co. from time to time (other
than borrowings evidenced by the Intercompany Note Relating to Tranche B Term
Loans), as such Intercompany Note may be amended, supplemented or otherwise
modified from time to time.
"INTERCOMPANY NOTE RELATING TO TRANCHE B TERM LOANS" means the Promissory
Note executed by DAH in favor of Finance Co. on the Closing Date, substantially
in the form of EXHIBIT XXIV annexed hereto, evidencing the borrowings made by
DAH from Finance Co. from
16
the proceeds of Tranche B Term Loans, as such Intercompany Note Relating to
Tranche B Term Loans may be amended, supplemented or otherwise modified from
time to time.
"INTERCOMPANY NOTES" means, collectively, the Intercompany Note Relating
to Tranche A Term Loans and Working Capital Loans and the Intercompany Note
Relating to Tranche B Term Loans.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate Loan,
each Quarterly Date, commencing on the first such Quarterly Date to occur after
the Closing Date, and (ii) with respect to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Loan; PROVIDED that in the case
of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an multiple thereof, after
the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in subsection
2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second Business Day prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or
other acquisition for value, by any Subsidiary of Company from any Person
other than Company or any of its Subsidiaries, of any equity Securities of
such Subsidiary, or (iii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other
Person (other than a wholly-owned Subsidiary of Company). 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.
"INVESTMENT ACCOUNT AGREEMENT" means the Investment Account Agreement
executed and delivered by Company and Administrative Agent on the Closing Date,
substantially in the form of EXHIBIT XXVII annexed hereto, as such Investment
Account Agreement may hereafter be amended, supplemented or otherwise modified
from time to time.
"INVESTMENT ACCOUNTS" means the "Investments Accounts" as defined in the
Investment Account Agreement.
17
"IP COLLATERAL" means, collectively, the Intellectual Property
Collateral under the Security Agreement.
"ISSUING LENDER" means, First Chicago in its capacity as issuer of a
Letter of Credit or, if First Chicago declines to issue such Letter of Credit
in accordance with subsection 3.1B(ii), then any other Working Capital Lender
that at the request of Company agrees to issue a Letter of Credit pursuant to
subsection 3.1B(ii).
"LC REFUNDING LOAN" has the meaning assigned to that term in
subsection 2.1B.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan Party as
lessee under any lease of real property.
"LENDER" and "LENDERS" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise
requires.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Letters of Credit
issued or to be issued by Issuing Lenders for the account of Company pursuant
to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is available for drawing under
all Letters of Credit then outstanding (whether or not any conditions to any
such drawing can then be met), PLUS (ii) the aggregate amount of all drawings
under Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed by Company.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Working Capital Loans, Swing Line Loans or Acquisition
Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Company in favor of an Issuing Lender
relating to, the Letters of Credit), the Guaranties and the Collateral
Documents.
"LOAN PARTY" means each of Parent, Acquisition Co., Company and any of
Company's Subsidiaries from time to time executing a Loan Document, and "LOAN
PARTIES" means all such Persons, collectively.
"MARGIN DETERMINATION CERTIFICATE" means an Officer's Certificate of
Company delivered pursuant to subsection 6.1(iv) setting forth in reasonable
detail, and calculating in accordance with subsections 1.2(b) and 1.2(c), the
Consolidated Leverage Ratio for the
18
four-Fiscal Quarter period ending as of the last day of the Fiscal Quarter
with respect to which such Officer's Certificate is delivered.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from
time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect upon the
business, operations, properties, assets, financial condition or prospects of
Company and its Subsidiaries taken as a whole or of DAH and its Subsidiaries
taken as a whole or (ii) the material impairment of the ability of the Loan
Parties to perform, or of Agents or Lenders to enforce, the Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Company 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.
"MERGER" means the merger of Acquisition Co. with and into DAH
pursuant to the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as of
July 16, 1998 between Acquisition Co. and DAH, as in effect on the date
hereof and as such agreement may be amended from time to time to the extent
permitted under subsection 7.15.
"MERGER DATE" means the date upon which the Merger and the Second
Merger are consummated.
"MERGER DATE FEE MORTGAGED PROPERTY" means each owned property listed
on Schedule 6.8.
"MERGER DATE LEASEHOLD MORTGAGED PROPERTY" means each leased property
listed on Schedule 6.8 to the extent that DAH or the applicable Subsidiary is
able to obtain the agreement of the applicable lessor referred to in
subsection 6.8C.
"MERGER DATE MORTGAGED PROPERTY" means, collectively, the Merger Date
Fee Mortgaged Properties and the Merger Date Leasehold Mortgaged Properties.
"MINIMUM SHARES" means, at the date of determination, a majority of
the total number of shares of DAH Common Stock outstanding on a fully diluted
basis but not less than a sufficient number of such shares to permit
Acquisition Co. acting alone to cause the Merger to be approved by the
stockholders of DAH.
"MORTGAGE" means (i) a security instrument (whether designated as a
deed of trust or a mortgage or by any similar title) executed and delivered
by any Loan Party, substantially in such form as may be reasonably approved
by Agents in their sole discretion, in each case with such changes thereto as
may be recommended by Administrative Agent's local counsel based on local
laws or customary local mortgage or deed of trust practices, or (ii) at the
option of Agents, in the case of any future Mortgaged Property, an amendment
to an existing Mortgage or a new Mortgage, in form satisfactory to Agents,
adding such future Mortgaged Property to the Real Property Assets encumbered
by such existing Mortgage, in either case as such security
19
instrument or amendment may be amended, supplemented or otherwise modified
from time to time. "MORTGAGES" means all such instruments, including any
future Mortgages, collectively.
"MORTGAGED PROPERTY" means a Merger Date Mortgaged Property (as
defined in subsection 6.13) or a property mortgaged in the future pursuant to
subsection 6.8.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes and
all other governmental costs and expenses reasonably estimated to be actually
payable in connection with such Asset Sale (including, in the event of any
Asset Sale with respect to non-U.S. assets, any such taxes, costs, and
expenses resulting from repatriating such proceeds to the U.S.), (ii) payment
of the outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) that is secured by a Lien
on the stock or assets in question and that is required to be repaid under
the terms thereof as a result of such Asset Sale, (iii) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions and
disbursements, (iv) reserves for purchase price adjustments and retained
liabilities reasonably expected to be payable by Company and its Subsidiaries
in cash in connection therewith and (v) solely with respect to any Asset Sale
consummated by a Subsidiary, the pro rata portion of any such Cash payments
required to be distributed to any shareholders of such Subsidiary or any
other Subsidiary that, directly or indirectly, holds the capital stock of
such Subsidiary (but excluding in each case Company and its Subsidiaries).
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any
casualty insurance policy in respect of a covered loss thereunder or (ii) as
a result of the taking of any assets of Company or any of its Subsidiaries by
any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, in each case net of any actual and
reasonable documented costs incurred by Company or any of its Subsidiaries in
connection with the adjustment or settlement of any claims of Company or such
Subsidiary in respect thereof, but excluding (x) any such payments or
proceeds thereunder required to be paid to a creditor (other than the holders
of the Loans) secured by such assets that is required to be repaid under the
terms thereof as a result of the relevant covered loss or taking, (y) any
income taxes and all other taxes, governmental costs and expenses reasonably
estimated to be actually payable in connection with the receipt of such Net
Insurance/Condemnation Proceeds and (z) solely with respect to any Net
Insurance/Condemnation Proceeds received by a Subsidiary, the pro rata
portion of any such Cash payments required to be distributed to any
shareholders of such Subsidiary or any other Subsidiary that, directly or
indirectly, holds the capital stock of such Subsidiary (but excluding in each
case Company and its Subsidiaries).
20
"NET SECURITIES PROCEEDS " has the meaning set forth in subsection
2.4B(iii)(c).
"NON-CONSENTING LENDER" means any Lender that, in response to any
request by Company or Administrative Agent to a departure from, waiver of or
amendment to any provision of any Loan Document that requires the agreement
of all Lenders or all Lenders holding Commitments or Loans (and , if
applicable, participations in letters of credit) of a particular type, which
departure , waiver or amendment received the consent of the Required Lenders
or the holders of a majority of the Commitments or (if the applicable
Commitments of such type shall have expired or been terminated) outstanding
Loans of such type, and, if applicable, participations in letters of credit,
as the case may be, shall not have given its consent to such departure,
waiver or amendment.
"NON-FUNDING LENDER" means a Lender that shall have failed to fund any
Loan hereunder that it was required to have funded in accordance with the
terms hereof, which Loan was included in any borrowings in respect of which a
majority of the aggregate amount of all Loans included in such borrowings
were funded by the Lenders party hereto (other than any Lender not required
to do so as a result of the provisions of Section 2.6C or 2.6D being
applicable to such Lender with respect to such borrowing).
"NON-WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of Company that is
not a Wholly-Owned Subsidiary.
"NOTES" means one or more of the Tranche A Term Notes, Tranche B Term
Notes, Working Capital Notes, Swing Line Notes or Acquisition Notes or any
combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by Company to Administrative Agent
pursuant to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of EXHIBIT II annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice substantially
in the form of EXHIBIT III annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the
proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each Loan Party
from time to time owed to Agents, Lenders or any of them under the Loan
Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chief executive
officer, president, treasurer or its chief financial officer (or if there is
no chief financial officer, its chief accounting officer).
21
"OPERATING LEASE" means, as applied to any Person, 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 in
accordance with GAAP other than any such lease under which that Person is the
lessor.
"PARENT" means XxXxxxx Holdings Co., a Delaware corporation.
"PARENT GUARANTY" means the Parent Guaranty executed and delivered by
Parent on the Closing Date, substantially in the form of EXHIBIT XXI annexed
hereto, as such Parent Guaranty may be amended, supplemented or otherwise
modified from time to time.
"PARENT P-I-K SECURITIES" means the PIK Notes and the PIK Preferred
Stock.
"PARENT PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered by Parent on the Closing Date, substantially in the form of EXHIBIT
XX annexed hereto, as such Parent Pledge Agreement may be amended,
supplemented or otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"PERMITTED ACQUISITION" means the acquisition of a business (whether
through the purchase of assets or of shares of capital stock) by Company or
one of its Subsidiaries (w) which is in a line of business similar or related
to the lines of business of Company and its Subsidiaries, (x) for total
consideration (including without limitation, cash purchase price, deferred or
financed purchase price and the assumption of Indebtedness, including Assumed
Indebtedness, and other liabilities) of not more than $25,000,000 for any
single acquisition or series of related acquisitions and, which
consideration, when aggregated with the consideration for all other Permitted
Acquisitions, does not exceed $50,000,000; PROVIDED that such aggregate total
consideration for Permitted Acquisitions of or by Subsidiaries that are not
Subsidiary Guarantors shall not exceed an aggregate of $30,000,000 plus the
Company Excess Cash Flow Amount; AND PROVIDED FURTHER that such aggregate
total consideration for Permitted Acquisitions of or by Non-Wholly-Owned
Subsidiaries that are not Subsidiary Guarantors shall not exceed an aggregate
of $10,000,000 plus the Company Excess Cash Flow Amount, (y) at a time at
which no Event of Default or Potential Event of Default shall exist or shall
occur as a result of giving effect to such proposed acquisition, and (z)
after giving effect to such acquisition, including without limitation giving
effect to the incurrence or assumption of any Indebtedness or any other costs
and expenditures or the making of any distributions and other payments in
connection with or otherwise relating to such Permitted Acquisition, Company
shall be in pro forma compliance with each of the financial covenants set
forth in subsection 7.6 for the immediately preceding four Fiscal Quarter
period prior to such date of determination.
22
"PERMITTED ACQUISITION COMPLIANCE CERTIFICATE" means an Officer's
Certificate substantially in the form of EXHIBIT XXVI annexed hereto
delivered to Administrative Agent by Company pursuant to subsection 7.7(vii).
"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
the payment of which is not, at the time, required by subsection 6.3;
(ii) Liens of landlords (except as may be waived or released as more
particularly described in subsection 6.8), Liens of banks and rights of
set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen,
workmen, contractors and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any such
amounts overdue for a period in excess of 30 days) are being contested in
good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to third parties and not
interfering in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case which do not and
will not materially detract from the value or impair the use by the Company
or any of its Subsidiaries in the ordinary conduct of the business of Company
or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any
permitted lease, (b) restriction or encumbrance to which the interest or
title of such lessor or sublessor may be subject to, or (c) subordination of
the interest of the lessee or sublessee under such lease to any restriction
or encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
23
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business of Company
and its Subsidiaries;
(xii) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course
of business and not interfering in any material respect with the ordinary
conduct of the business of Company or such Subsidiary; and
(xiii) the general and special exceptions approved by Agents, which
exceptions appear on the mortgagee title insurance policies with respect to
the owned and leased properties to be encumbered by a Mortgage, pursuant to
subsections 6.8B, 6.8C and 6.13.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether
federal, state or local, domestic or foreign, and including political
subdivisions thereof) and agencies or other administrative or regulatory
bodies thereof.
"PIK NOTES" means Senior Pay-in-Kind Notes, if any, issued by Parent,
in exchange for PIK Preferred Stock which notes shall (i) provide for the
payment of interest by accretion of the original face amount thereof or by
the issuance of additional PIK Notes for a period of not less than five years
after the Closing Date, (ii) not provide for any scheduled redemptions or
prepayments or any sinking fund installment payments or maturities prior to a
date which is seven and one-half years after the Closing Date, and (iii) have
terms and conditions not less favorable to Parent and Lenders than those set
forth in the draft "Description of Exchange Debentures" dated August 27,
1998, a copy of which has been distributed to the Lenders.
"PIK PREFERRED STOCK" means Pay-in-Kind Preferred Stock issued by
Parent, the face amount thereof to be issued on the Closing date being not
less than $34,000,000, providing for the payment of dividends thereon by the
issuance of additional shares of such Pay-in-Kind Preferred Stock or by
accretion of the original face amount thereof for a period of not less than
five years from the Closing Date, which Pay-in-Kind Preferred Stock shall be
unsecured and unguaranteed, shall not provide for any scheduled redemptions
or prepayments prior to a date which is seven-and-a-half years after the
Closing Date, as amended from time to time to the extent permitted under the
Parent Guaranty.
"PLEDGED COLLATERAL" means, collectively, at any time, the "Pledged
Collateral" as defined in any of the Finance Co. Pledge Agreement, the DAH
Pledge Agreement, the Parent Pledge Agreement and the Subsidiary Pledge
Agreements as is a Collateral Document at such time.
24
"POTENTIAL EVENT OF DEFAULT" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"PROPERTY REINVESTMENT APPLICATION" means the application of Net
Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as the case may
be, to the acquisition by Company or its Subsidiaries of tangible or
intangible property or assets (other than property or assets that constitute
current assets under GAAP, unless the acquisition thereof is incidental to
the acquisition of a materially greater amount of non-current assets) that is
to be used in the business of Company and its Subsidiaries.
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Tranche A Term Loan Commitment or the
Tranche A Term Loan of any Lender, the percentage obtained by DIVIDING (x)
the Tranche A Term Loan Exposure of that Lender BY (y) the aggregate Tranche
A Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment
or the Tranche B Term Loan of any Lender, the percentage obtained by DIVIDING
(x) the Tranche B Term Loan Exposure of that Lender BY (y) the aggregate
Tranche B Term Loan Exposure of all Lenders, (iii) with respect to all
payments, computations and other matters relating to the Working Capital Loan
Commitment or the Working Capital Loans of any Lender or any Letters of
Credit issued or participations therein purchased by any Lender or any
participations in any Swing Line Loans purchased or deemed purchased by any
Working Capital Lender, the percentage obtained by DIVIDING (x) the Working
Capital Loan Exposure of that Lender BY (y) the aggregate Working Capital
Loan Exposure of all Lenders, (iv) with respect to all payments, computations
and other matters relating to the Acquisition Loan Commitment or the
Acquisition Loans of any Lender, the percentage obtained by DIVIDING (x) the
Acquisition Loan Exposure of that Acquisition Lender BY (y) the aggregate
Acquisition Loan Exposure of all Lenders, and (v) for all other purposes with
respect to each Lender, the percentage obtained by DIVIDING (x) the sum of
the Tranche A Term Loan Exposure of that Lender PLUS the Tranche B Term Loan
Exposure of that Lender PLUS the Working Capital Loan Exposure of that Lender
plus the Acquisition Loan Exposure of that Lender BY (y) the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders PLUS the aggregate
Tranche B Term Loan Exposure of all Lenders PLUS the aggregate Working
Capital Loan Exposure of all Lenders PLUS the aggregate Acquisition Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1. The initial
Pro Rata Share of each Lender for purposes of each of clauses (i), (ii),
(iii) and (iv) of the preceding sentence is set forth opposite the name of
that Lender in SCHEDULE 2.1 annexed hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the
opinion of Administrative Agent, desirable in order to create or perfect
Liens on any IP Collateral.
"QUARTERLY DATE" means each March 31, June 30, September 30 and
December 31.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
25
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term in
subsection 2.1A(iv).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Intercompany Notes, the
Merger Agreement, the Senior Subordinated Bridge Note Agreement, if any, the
Senior Subordinated Bridge Notes, if any, any guaranties related thereto and,
if and when executed, the Senior Subordinated Note Indenture and the Senior
Subordinated Notes and any guaranties related to any of the foregoing, the
Parent PIK Securities and the agreements or other instruments pursuant to
which the Parent PIK Securities have been issued or are governed, including
without limitation any note purchase agreement, any indenture or any
certificate of designation and all other agreements or instruments delivered
pursuant to or in connection with any of the foregoing including any
registration rights agreement.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or
outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials),
including the movement of any Hazardous Materials through the air, soil,
surface water or groundwater.
"REQUISITE LENDERS" means on any date, Lenders having or holding more
than 50% of the sum of (i) the aggregate Tranche A Term Loan Exposure of all
Lenders PLUS (ii) the aggregate Tranche B Term Loan Exposure of all Lenders
PLUS (iii) the aggregate Working Capital Loan Exposure of all Lenders PLUS
(iv) the aggregate Acquisition Loan Exposure of all Lenders, in each case on
such date.
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"RESTRICTED JUNIOR PAYMENT" means (i) any distribution, direct or
indirect, on account of any class of stock of Company now or hereafter
outstanding, except a distribution payable solely in shares of that class or
a junior class of stock payable solely to holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any class of stock of Company
now or hereafter outstanding, (iii) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Company now or hereafter outstanding,
and (iv) any payment or prepayment of principal of, premium, if any, or
interest on, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with
respect to, any Subordinated Indebtedness.
"SECOND MERGER" means the merger of Finance Co. with and into DAH.
26
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered on the Merger Date by Company and each then existing Subsidiary
Guarantor on the Merger Date or executed and delivered by any additional
Subsidiary Guarantor from time to time thereafter in accordance with
subsection 6.7, substantially in the form of EXHIBIT XVI annexed hereto, as
such Security Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.
"SENIOR SUBORDINATED BRIDGE NOTE AGREEMENT" means that certain
Securities Purchase Agreement, if any, pursuant to which the Senior
Subordinated Bridge Notes, if any, are issued, as in effect on the date of
execution of this Agreement and as such agreement may be amended from time to
time thereafter to the extent permitted under subsection 7.15.
"SENIOR SUBORDINATED BRIDGE NOTES" means the senior subordinated
increasing rate notes, if any, issued by Company on the Closing Date, which
notes (i) are unsecured and subordinated to the Obligations, (ii) mature at
least one year after the Closing Date; and (iii) provide that the maturity
thereof will be automatically extended to the date which is seven and
one-half years after the Closing Date, subject to satisfaction of certain
conditions, as such notes may be amended from time to time thereafter to the
extent permitted under subsection 7.15.
"SENIOR SUBORDINATED NOTE INDENTURE" means the senior subordinated
note indenture, if any, executed by Company and a trustee named thereunder
pursuant to which the Senior Subordinated Notes, if any, are issued, as such
indenture may be amended from time to time to the extent permitted under
subsection 7.15.
"SENIOR SUBORDINATED NOTES" means the senior subordinated notes, if
any, issued by Company which notes shall be unsecured and shall not provide
for any scheduled redemptions or prepayments or any sinking fund installment
payments or maturities prior to a date which is seven and one-half years
after the Closing Date, which shall have terms and conditions substantially
as set forth in the Preliminary Offering Memorandum dated August 12, 1998 or
otherwise in form and substance satisfactory to Agents, as such notes may be
amended from time to time to the extent permitted under subsection 7.15.
"Senior Subordinated Notes" shall also refer to the registered Securities, if
any, having the same terms and conditions as the notes described above which
are issued by Company in exchange for such notes upon exercise of the
customary registration rights accompanying such notes.
27
"SOLVENCY CERTIFICATE" means an Officer's Certificate substantially
in the form of EXHIBIT XXII annexed hereto.
"SOLVENT" means, with respect to any Person, that as of the date of
determination (i) the then fair value of the property of such Person is
greater than the total amount of liabilities (including contingent
liabilities) of such Person and (ii) the then fair saleable value of the
property of such Person is not less than the amount that will be required to
pay the probable liabilities on such Person's then existing debts as they
become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (iii) such
Person's capital is not unreasonably small in relation to its business; and
(iv) such Person does not intend to incur, or believe (nor should it
reasonably believe) that it will incur, debts beyond its ability to pay such
debts as they become due. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries,
and (v) performance, payment, deposit, surety or other obligations of Company
or any of its Subsidiaries.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Company subordinated
in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to Agents and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
constituting members of the governing body of such entity is at the time
owned and controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person or a combination thereof. For
purposes of this Agreement and the other Loan Documents, any Acquired
Controlled Person shall be deemed to be a "Subsidiary" of Company for
purposes of subsections 5.1, 5.5, 5.6, 5.7, 5.9, 5.10, 6.4A and the first
sentence of 6.4B, 6.6, 6.9, 7.1, 7.2A, 7.2C, 7.3, 7.4, 7.5, 7.7, 7.10, 7.11,
7.12 and 7.14 and, to the extent (and only to the extent) that it relates to
any of the foregoing subsections, Section 8.
"SUBSIDIARY GUARANTOR" means (i) at any time prior to the consummation
of the Merger, Acquisition Co. and (ii) any time upon and after the
consummation of the Merger, any Subsidiary of Company that executes and
delivers a counterpart of the Subsidiary Guaranty on the Merger Date or from
time to time thereafter pursuant to subsection 6.7; PROVIDED that prior to
28
the consummation of the Merger, DAH and the Wholly-Owned Domestic
Subsidiaries of DAH shall be deemed to be Subsidiary Guarantors.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by Acquisition Co. on the Closing Date and by existing Subsidiaries
of Company on the Merger Date and to be executed and delivered by additional
Subsidiaries of Company from time to time thereafter in accordance with
subsection 6.7, substantially in the form of EXHIBIT XVIII annexed hereto, as
such Subsidiary Guaranty may hereafter be amended, supplemented or otherwise
modified from time to time.
"SUBSIDIARY PLEDGE AGREEMENT" means each Subsidiary Pledge Agreement
executed and delivered by an existing Subsidiary Guarantor on the Merger Date
or executed and delivered by any additional Subsidiary Guarantor from time to
time thereafter in accordance with subsection 6.7, in each case substantially
in the form of EXHIBIT XIX annexed hereto, as such Subsidiary Pledge
Agreement may be amended, supplemented or otherwise modified from time to
time, and "SUBSIDIARY PLEDGE AGREEMENTS" means all such Subsidiary Pledge
Agreements, collectively.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that term
in subsection 9.1B.
"SWING LINE LENDER" means First Chicago, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line
Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line Lender
to make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means (i) the promissory note of Company issued
pursuant to subsection 2.1D(iv) on the Closing Date and (ii) any promissory
note issued by Company to any successor Administrative Agent and Swing Line
Lender pursuant to the last sentence of subsection 9.3B, in each case
substantially in the form of EXHIBIT VII annexed hereto, as it may be
amended, supplemented or otherwise modified from time to time.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"TAX" or "TAXES" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, imposed
by any taxing authority, from or through which payments originate or are made or
deemed made by or to the Company, but excluding any income, excise, stamp or
franchise taxes and other similar taxes, fees, duties, withholdings or other
charges imposed on any Lender or any Agent as a result of a present or former
connection between the applicable lending office (or, in the case of any Agent,
the office through which it performs any of its actions as Agent) of such Lender
or Agent, and the jurisdiction of the governmental authority imposing such tax
or any political subdivision or
29
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement or the other Loan Documents).
"TENDER OFFER" means the offer by Acquisition Co. to purchase for
$23.00 per share in cash all of the outstanding shares of DAH Common Stock
pursuant to the Tender Offer Materials.
"TENDER OFFER MATERIALS" means the Tender Offer Statement on Schedule
14D-1 filed by Acquisition Co. on July 22, 1998 with the Securities and
Exchange Commission pursuant to Section 14(d)(1) of the Exchange Act,
together with all exhibits, supplements and amendments thereto entered into
on or prior to the date hereof and any amendments entered into after the date
hereof that relate only to any extension of time during which the offer to
purchase set forth therein remains outstanding and other amendments that are
approved by Requisite Lenders.
"TERM LOANS" means, collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TITLE COMPANY" means one or more title insurance companies selected
by Company and reasonably satisfactory to Agents.
"TOTAL UTILIZATION OF WORKING CAPITAL LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of
all outstanding Working Capital Loans PLUS (ii) the aggregate principal
amount of all outstanding Swing Line Loans PLUS (iii) the Letter of Credit
Usage.
"TRADE LETTERS OF CREDIT" means Letters of Credit issued for the
purpose of providing the principal payment mechanism for the purchase of
goods through the presentation of documents to the Issuing Lender.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a Lender to
make Tranche A Term Loans to Company pursuant to subsection 2.1A(i), and
"TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any Tranche A
Term Loan Lender as of any date of determination the sum, without
duplication, of (i) that Lender's unused Tranche A Term Loan Commitment and
(ii) the outstanding principal amount of the Tranche A Term Loans of that
Lender.
"TRANCHE A TERM LOAN LENDER" means any Lender who holds a Tranche A
Term Loan Commitment, or who has made a Tranche A Term Loan hereunder and any
assignee of such Lender pursuant to subsection 10.1B.
"TRANCHE A TERM LOANS" means the Tranche A Term Loans made by Tranche
A Term Loan Lenders to Company pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D(i) on the Closing Date and (ii) any
promissory notes issued by Company
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pursuant to the last sentence of subsection 10.1B(i) in connection with
assignments of the Tranche A Term Loan Commitments or Tranche A Term Loans of
any Tranche A Term Loan Lenders, in each case substantially in the form of
EXHIBIT IV annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and
"TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any Tranche B
Term Loan Lender as of any date of determination (i) prior to the funding of
the Tranche B Term Loans, that Lender's Tranche B Term Loan Commitment and
(ii) after the funding of the Tranche B Term Loans, the outstanding principal
amount of the Tranche B Term Loan of that Lender.
"TRANCHE B TERM LOAN LENDER" means any Lender who holds a Tranche B
Term Loan Commitment or who has made a Tranche B Term Loan hereunder, and any
assignee of such Lender pursuant to subsection 10.1B.
"TRANCHE B TERM LOANS" means the Tranche B Term Loans made by Tranche
B Term Loan Lenders to Company pursuant to subsection 2.1A(ii).
"TRANCHE B TERM NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D(ii) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche B Term Loan
Commitments or Tranche B Term Loans of any Tranche B Term Loan Lenders, in
each case substantially in the form of EXHIBIT V annexed hereto, as they may
be amended, supplemented or otherwise modified from time to time.
"TRANSACTION" means the Tender Offer, the Merger, the Second Merger
and the financings thereof pursuant to this Agreement, the Senior
Subordinated Bridge Notes, if any, the Senior Subordinated Notes, if any, and
the PIK Preferred Stock.
"TRANSACTION COSTS" means the fees, costs and expenses payable by any
Loan Party in connection with the Tender Offer, the Mergers and the related
financing and other transactions contemplated hereby.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of Company all of the
equity interests (except directors' qualifying shares) and voting interests
of which are owned by Company and/or one or more of Company's other
Wholly-Owned Subsidiaries.
"WORKING CAPITAL LENDER" means a Lender having a Working Capital Loan
Commitment.
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"WORKING CAPITAL LOAN COMMITMENT" means the commitment of a Lender to
make Working Capital Loans to Company pursuant to subsection 2.1A(iii), and
"WORKING CAPITAL LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"WORKING CAPITAL LOAN COMMITMENT" means the commitment of a Working
Capital Lender to make Working Capital Loans to Company pursuant to
subsection 2.1A(iii), and "WORKING CAPITAL LOAN COMMITMENTS" means such
commitments of all Working Capital Lenders in the aggregate.
"WORKING CAPITAL LOAN COMMITMENT TERMINATION DATE" means September 30,
2004.
"WORKING CAPITAL LOAN EXPOSURE" means, with respect to any Working
Capital Lender as of any date of determination (i) prior to the termination
of the Working Capital Loan Commitments, that Working Capital Lender's
Working Capital Loan Commitment and (ii) after the termination of the Working
Capital Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Working Capital Loans of that Working Capital Lender PLUS (b)
in the event that Working Capital Lender is an Issuing Lender, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued by that
Working Capital Lender (in each case net of any participations purchased by
other Working Capital Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) PLUS (c) the aggregate amount of all participations
purchased by that Working Capital Lender in any outstanding Letters of Credit
or any unreimbursed drawings under any Letters of Credit PLUS (d) in the case
of Swing Line Lender, the aggregate outstanding principal amount of all Swing
Line Loans (net of any participations therein purchased by other Working
Capital Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Working Capital Lender in any outstanding Swing Line Loans.
"WORKING CAPITAL LOANS" means the Loans made by Working Capital
Lenders to Company pursuant to subsection 2.1A(iii).
"WORKING CAPITAL NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D(iii) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Working Capital
Loan Commitments and Working Capital Loans of any Working Capital Lenders, in
each case substantially in the form of EXHIBIT VI annexed hereto, as they may
be amended, supplemented or otherwise modified from time to time.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
(a) Unless otherwise specified, all accounting terms used herein or
in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder shall be made, and
all financial statements required to be delivered hereunder or thereunder
(including under subsection 7.6) shall be prepared, in accordance with GAAP,
as in effect in the United States on December 31, 1997 and, unless expressly
provided herein, shall be computed or determined on a consolidated basis and
without duplication.
(b) For purposes of computing the Consolidated Fixed Charge Coverage
Ratio,
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Consolidated Interest Coverage Ratio and Consolidated Leverage Ratio (and any
financial calculations required to be made or included within such ratios)
as of the end of any Fiscal Quarter and for purposes of computing
Consolidated EBITDA in connection with subsection 7.6C (but not for purposes
of computing Consolidated Excess Cash Flow for any period), as at the end of
any Fiscal Quarter, all components of such ratios (other than Consolidated
Capital Expenditures) or Consolidated EBITDA for the period of four Fiscal
Quarters ending at the end of such Fiscal Quarter shall include or exclude,
as the case may be, without duplication, such components of such ratios or
Consolidated EBITDA attributable to any business or assets that have been
acquired or disposed of by the Company or any of its Subsidiaries (including
through mergers or consolidations) after the first day of such period of four
Fiscal Quarters and prior to the end of such period, as determined in good
faith by the Company on a pro forma basis for such period of four Fiscal
Quarters as if such acquisition or disposition had occurred on such first day
of such period (including, whether or not such inclusion would be permitted
under GAAP or Regulation S-X of the Securities and Exchange Commission, cost
savings that would have been realized had such acquisition occurred on such
day.
(c) All calculations of Consolidated EBITDA, Consolidated Fixed
Charge Coverage Ratio and Consolidated Interest Coverage Ratio (and related
definitions) for any period ending prior to or including the Merger Date
shall be made on a pro-forma basis assuming the Tender Offer and the Merger
were consummated on the first day of such period and all calculations of
Consolidated Interest Expense and interest expense included in the
calculation of Consolidated Interest Coverage Ratio and Consolidated Fixed
Charge Coverage Ratio shall be calculated on a pro forma basis as if the
Merger were consummated on the Closing Date and Annualized as set forth in
the definitions of Consolidated Interest Coverage Ratio and Consolidated
Fixed Charge Coverage Ratio. All calculations of Consolidated Total Debt on
any date prior to the Merger Date shall be made on a pro forma basis assuming
the Merger was consummated on such date.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise
specifically provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters
that fall within the broadest possible scope of such general statement, term
or matter.
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SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Tranche A Term Loan Lender hereby severally agrees to
make the Tranche A Term Loans described in subsection 2.1A(i), each Tranche B
Term Loan Lender hereby severally agrees to make the Tranche B Term Loans
described in subsection 2.1A(ii), each Working Capital Lender hereby
severally agrees to make the Working Capital Loans described in subsection
2.1A(iii), Swing Line Lender hereby agrees to make the Swing Line Loans
described in subsection 2.1A(iv) and each Acquisition Lender hereby severally
agrees to make the Acquisition Loans described in subsection 2.1A(v).
(i) TRANCHE A TERM LOANS. Each Tranche A Term Loan Lender
severally agrees to lend to Company on the Closing Date and on the Merger
Date an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche A Term Loan Commitments to be used for
the purposes identified in subsection 2.5A; PROVIDED that prior to, or
simultaneously with the funding of the initial Tranche A Term Loans, the
Tranche B Term Loans shall have been funded in full. The amount of each
Tranche A Term Loan Lender's Tranche A Term Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate amount
of the Tranche A Term Loan Commitments is $35,000,000; PROVIDED that the
Tranche A Term Loan Commitments of the Tranche A Term Loan Lenders shall
be adjusted to give effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 10.1B and to any reductions thereof
pursuant to Section 2.4B(ii). Each Tranche A Term Loan Lender's Term
Loan Commitment (i) shall expire immediately and without further action
on October 31, 1998, if the initial Tranche A Term Loans are not made on
or before that date, (ii) shall be reduced by an amount equal to the
principal amount of the Tranche A Term Loan, if any, made by such Tranche
A Term Loan Lender on the Closing Date, immediately after giving effect
thereto on the Closing Date, and (iii) to the extent unused, shall expire
on the close of business on the Merger Date. Company may make a
borrowing under the Tranche A Term Loan Commitments on the Closing Date
and on the Merger Date. Amounts borrowed under this subsection 2.1A(i)
and subsequently repaid or prepaid may not be reborrowed.
(ii) TRANCHE B TERM LOANS. Each Tranche B Term Loan Lender
severally agrees to lend to Company on the Closing Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Tranche B
Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Tranche B Term Loan Lender's Tranche
B Term Loan Commitment is set forth opposite its name on SCHEDULE 2.1
annexed hereto and the aggregate amount of the Tranche B Term Loan
Commitments is $45,000,000; PROVIDED that the Tranche B Term Loan
Commitments of Tranche B Term Loan Lenders shall be adjusted to give
effect to any assignments of the Tranche B Term Loan Commitments pursuant
to subsection 10.1B. Each Tranche B Term Loan Lender's Tranche B Term
Loan Commitment shall expire immediately and without further action on
the earlier of (i) October 31, 1998, if the Tranche B Term Loans are not
made on or before that date and (ii) at the close of business on the
Closing Date.
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Company may make only one borrowing under the Tranche B Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) WORKING CAPITAL LOANS. Each Working Capital Lender
severally agrees, subject to the limitations set forth below with respect
to the maximum amount of Working Capital Loans permitted to be
outstanding from time to time, to lend to Company from time to time
during the period from the Closing Date to but excluding the Working
Capital Loan Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate amount of the Working
Capital Loan Commitments to be used for the purposes identified in
subsection 2.5B. The original amount of each Working Capital Lender's
Working Capital Loan Commitment is set forth opposite its name on
SCHEDULE 2.1 annexed hereto and the aggregate original amount of the
Working Capital Loan Commitments is $25,000,000; PROVIDED that the
Working Capital Loan Commitments of the Working Capital Lenders shall be
adjusted to give effect to any assignments of the Working Capital Loan
Commitments pursuant to subsection 10.1B; PROVIDED FURTHER the Working
Capital Loan Commitments may be increased pursuant to the immediately
succeeding paragraph of this subsection 2.1A(iii); and PROVIDED STILL
FURTHER that the amount of the Working Capital Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsection 2.4B(ii). Each Working Capital Lender's Working
Capital Loan Commitment shall expire on the Working Capital Loan
Commitment Termination Date and all Working Capital Loans and all other
amounts owed hereunder with respect to the Working Capital Loans and the
Working Capital Loan Commitments shall be paid in full no later than that
date; PROVIDED that each Working Capital Lender's Working Capital Loan
Commitment shall expire immediately and without further action on
October 31, 1998, if the Tranche B Term Loans are not made on or before
that date. Amounts borrowed under this subsection 2.1A(iii) may be
repaid and, at any time to but excluding the Working Capital Loan
Commitment Termination Date, reborrowed.
At any time that no Potential Event of Default or Event of Default
has occurred and is continuing, the Company may, by notice to the Agents,
request that, on the terms and subject to the conditions contained in
this Agreement, the Lenders and/or other financial institutions not then
a party to this Agreement that are satisfactory to the Agents provide up
to an aggregate amount of $20,000,000 in additional Working Capital Loan
Commitments. Upon receipt of such notice, the Syndication Agent shall
use all commercially reasonable efforts to arrange for the Lenders or
other financial institutions to provide such additional Working Capital
Loan Commitments; PROVIDED that the Syndication Agent will first offer
each of the Lenders that then has a Pro Rata Share of any Working Capital
Loan Commitments a pro rata portion (based upon the aggregate amount of
the Working Capital Loan Commitments at such time) of any such additional
Working Capital Loan Commitment. Alternatively, any Lender may commit to
provide the full amount of the requested additional Working Capital Loan
Commitments and then offer portions of such additional Working Capital
Loan Commitments to the other Lenders or other financial institutions,
subject to the proviso in the immediately preceding sentence. Nothing
contained in this paragraph or otherwise in this Agreement
35
is intended to commit any Lender or any Agent to provide any portion
of any such additional Working Capital Loan Commitments. If and to
the extent that any Lenders and/or other financial institutions agree,
in their sole discretion, to provide any such additional Working
Capital Loan Commitments, (i) the aggregate amount of the Working
Capital Loan Commitments shall be increased by the amount of the
additional Working Capital Loan Commitments agreed to be so provided,
(ii) the Pro Rata Shares of the respective Lenders in respect of the
Working Capital Loan Commitments shall be proportionally adjusted,
(iii) at such time and in such manner as Company and the Syndication
Agent shall agree (it being understood that Company and the Agents
will use all commercially reasonable efforts to avoid the prepayment
or assignment of any Eurodollar Rate Loan on a day other than the last
day of the Interest Period applicable thereto), the Lenders shall
assign and assume outstanding Working Capital Loans and participations
in outstanding Letters of Credit so as to cause the amount of such
Working Capital Loans and participations in Letters of Credit held by
each Lender to conform to the respective percentages of the applicable
Working Capital Loan Commitments of the Lenders and (iv) Company shall
execute and deliver any additional Notes or other amendments or
modifications to this Agreement or any other Loan Document as the
Agents may reasonably request.
Anything contained in this Agreement to the contrary notwithstanding, in
no event shall the Total Utilization of Working Capital Loan Commitments
at any time exceed the Working Capital Loan Commitments then in effect.
(iv) SWING LINE LOANS. Swing Line Lender hereby agrees, subject
to the limitations set forth below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding from time to time, to make a
portion of the Working Capital Loan Commitments available to Company from
time to time during the period from the Closing Date to but excluding the
Working Capital Loan Commitment Termination Date by making Swing Line
Loans to Company in an aggregate amount not exceeding the amount of the
Swing Line Loan Commitment to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line Loans,
when aggregated with Swing Line Lender's outstanding Working Capital
Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit
Usage then in effect, may exceed Swing Line Lender's Working Capital Loan
Commitment. The original amount of the Swing Line Loan Commitment is
$5,000,000; PROVIDED that any reduction of the Working Capital Loan
Commitments made pursuant to subsection 2.4B(ii) which reduces the
aggregate Working Capital Loan Commitments to an amount less than the
then current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to
the amount of the Working Capital Loan Commitments, as so reduced,
without any further action on the part of Company, Administrative Agent
or Swing Line Lender. The Swing Line Loan Commitment shall expire on the
Working Capital Loan Commitment Termination Date and all Swing Line Loans
and all other amounts owed hereunder with respect to the Swing Line Loans
shall be paid in full no later than that date; PROVIDED that the Swing
Line Loan Commitment shall expire immediately and without further action
on October 31, 1998, if the Tranche B Term Loans are not made on or
before that date. Amounts borrowed under this
36
subsection 2.1A(iv) may be repaid and, at any time to but excluding
the Working Capital Loan Commitment Termination Date, reborrowed.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment
shall be subject to the limitation that in no event shall the Total
Utilization of Working Capital Loan Commitments at any time exceed the
Working Capital Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been
voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line
Lender may, at any time in its sole and absolute discretion, deliver to
Administrative Agent (with a copy to Company), no later than 9:00 A.M.
(Chicago time) on the first Business Day in advance of the proposed
Funding Date, a notice (which shall be deemed to be a Notice of Borrowing
given by Company) requesting Working Capital Lenders to make Working
Capital Loans that are Base Rate Loans on such Funding Date in an amount
equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE
LOANS") outstanding on the date such notice is given which Swing Line
Lender requests Working Capital Lenders to prepay. Anything contained in
this Agreement to the contrary notwithstanding, (i) the proceeds of such
Working Capital Loans made by Working Capital Lenders other than Swing
Line Lender shall be immediately delivered by Administrative Agent to
Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (ii) on the
day such Working Capital Loans are made, Swing Line Lender's Pro Rata
Share of the Refunded Swing Line Loans shall be deemed to be paid with
the proceeds of a Working Capital Loan made by Swing Line Lender, and
such portion of the Swing Line Loans deemed to be so paid shall no longer
be outstanding as Swing Line Loans and shall no longer be due under the
Swing Line Note of Swing Line Lender but shall instead constitute part of
Swing Line Lender's outstanding Working Capital Loans and shall be due
under the Working Capital Note of Swing Line Lender and the
participations of each Working Capital Lender in such Refunded Swing Line
Loan shall be extinguished without further action. Company hereby
authorizes Administrative Agent and Swing Line Lender to charge Company's
accounts with Administrative Agent and Swing Line Lender (up to the
amount available in each such account) in order to immediately pay Swing
Line Lender the amount of the Refunded Swing Line Loans to the extent the
proceeds of such Working Capital Loans made by Working Capital Lenders,
including the Working Capital Loan deemed to be made by Swing Line
Lender, are not sufficient to repay in full the Refunded Swing Line
Loans. If any portion of any such amount paid (or deemed to be paid) to
Swing Line Lender should be recovered by or on behalf of Company from
Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Working Capital Lenders in the manner
contemplated by subsection 10.5.
Immediately upon funding of any Swing Line Loan, each Working
Capital Lender shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans in an amount equal to
its Pro Rata Share of the principal amount of such Swing Line Loans.
Upon one Business Day's notice from Swing Line Lender, each Working
Capital Lender shall deliver to Swing Line Lender an amount
37
equal to its respective participation in any outstanding Swing Line
Loans in same day funds at the Funding and Payment Office. Each such
amount so delivered by any Working Capital Lender shall be deemed to
be a Base Rate Working Capital Loan of such Working Capital Lender,
and the Swing Line Lender's participation, in its capacity as a
Working Capital Lender, in any outstanding Swing Line Loans shall be
deemed to be converted to a Working Capital Loan of the Swing Line
Lender made in its capacity as a Working Capital Lender. In the event
any Working Capital Lender fails to make available to Swing Line
Lender the amount of such Working Capital Lender's participation as
provided in this paragraph, Swing Line Lender shall be entitled to
recover such amount on demand from such Working Capital Lender
together with interest thereon at the rate customarily used by Swing
Line Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. In the event Swing
Line Lender receives a payment of any amount in which other Working
Capital Lenders have purchased participations as provided in this
paragraph, Swing Line Lender shall promptly distribute to each such
other Working Capital Lender its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Working Capital Lender's obligation to make Working Capital Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the second
preceding paragraph and each Working Capital Lender's obligation to
purchase a participation in Swing Line Loans pursuant to the immediately
preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including (a) any set-off, counterclaim,
recoupment, defense or other right which such Working Capital Lender may
have against Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of
Default or a Potential Event of Default (subject to the proviso set forth
below); (c) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED that such obligations of each Working Capital Lender are subject
to satisfaction of one of the following conditions (X) Swing Line Lender
believed in good faith that all conditions under Section 4 to the making
of the applicable Refunded Swing Line Loans were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or
(Y) the satisfaction of any such condition not satisfied had been waived
in accordance with subsection 10.6.
(v) ACQUISITION LOANS. Each Acquisition Lender severally
agrees, subject to the limitations set forth below with respect to the
maximum amount of Acquisition Loans permitted to be outstanding from
time to time, to lend to Company from time to time during the period
from the Merger Date to but excluding the Acquisition Loan Commitment
Termination Date an aggregate amount not exceeding its Pro Rata Share
of the aggregate amount of the Acquisition Loan Commitments to be used
for the purposes identified in subsection 2.5C. The original amount
of each Acquisition Lender's Acquisition Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate
original amount of the Acquisition Loan Commitments is $25,000,000;
PROVIDED that the Acquisition Loan Commitments of the Acquisition
38
Lenders shall be adjusted to give effect to any assignments of the
Acquisition Loan Commitments pursuant to subsection 10.1B; PROVIDED
FURTHER that the amount of the Acquisition Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4B(ii) and 2.4B(iii). Each Acquisition
Lender's Acquisition Loan Commitment shall expire on the Acquisition
Loan Commitment Termination Date and all Acquisition Loans and all
other amounts owed hereunder with respect to the Acquisition Loans and
the Acquisition Loan Commitments shall be paid in full no later than
that date; PROVIDED that each Acquisition Lender's Acquisition Loan
Commitment shall expire immediately and without further action on
October 31, 1998, if the Tranche B Term Loans are not made on or
before that date. Amounts borrowed under this subsection 2.1A(v) may
be repaid and reborrowed to but excluding the Acquisition Loan
Commitment Termination Date.
B. BORROWING MECHANICS. Loans made on any Funding Date (other than
Working Capital Loans deemed made pursuant to a request by Swing Line Lender
pursuant to subsection 2.1A(iv) for the purpose of repaying any Refunded
Swing Line Loans or Working Capital Loans made pursuant to subsection 3.3B
for the purpose of reimbursing any Issuing Lender for the amount of a drawing
under a Letter of Credit issued by it ("LC REFUNDING LOANS")) shall be in an
aggregate minimum amount of $1,000,000 and multiples of $100,000 in excess of
that amount. Swing Line Loans made on any Funding Date shall be in an
aggregate minimum amount of $250,000 and multiples of $10,000 in excess of
that amount. Whenever Company desires that Lenders make Loans (other than
Swing Line Loans or LC Refunding Loans) it shall deliver to Administrative
Agent a Notice of Borrowing no later than 12:00 Noon (Chicago time) at least
three Business Days in advance of the proposed Funding Date (in the case of a
Eurodollar Rate Loan, other than Eurodollar Loans to be made on the Closing
Date or the Merger Date, if the Merger Date occurs on or prior to three
Business Days after the Closing Date) or 12:00 Noon (Chicago time) on the
proposed Funding Date (in the case of a Base Rate Loan). Whenever Company
desires that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a Notice of Borrowing no later than 12:00 Noon (Chicago
time) on the proposed Funding Date. The Notice of Borrowing shall specify
(i) the proposed Funding Date (which shall be a Business Day), (ii) the
amount and type of Loans requested, (iii) in the case of Swing Line Loans,
that such Loans shall be Base Rate Loans, (iv) in the case of any other
Loans, whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans,
and (v) in the case of any Loans requested to be made as Eurodollar Rate
Loans, the initial Interest Period requested therefor. Term Loans and Working
Capital Loans may be continued as or converted into Base Rate Loans and
Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; PROVIDED that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date. Any Loans
made on the Closing Date and on the Merger Date (if the Merger Date occurs on
or prior to three Business Days after the Closing Date) may be Eurodollar
Loans regardless of whether this Agreement has been executed at least three
Business Days prior to such date and so long as Company has delivered a
Notice of Borrowing with respect thereto on or prior to three Business
39
Days prior to such date and has also delivered an indemnity
agreement covering broken funding losses in form and substance reasonably
satisfactory to Agents.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company
or for otherwise acting in good faith under this subsection 2.1B, and upon
funding of Loans by Lenders in accordance with this Agreement pursuant to any
such telephonic notice Company shall have borrowed Loans hereunder.
Company shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which Company is
required to certify in the applicable Notice of Borrowing as being true and
correct on any applicable Funding Date is not true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in
the applicable Notice of Borrowing as being true and correct on such Funding
Date.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice
in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in
accordance therewith or to pay the amounts payable pursuant to Section 2.6D
as a result of the failure to make such borrowing.
C. DISBURSEMENT OF FUNDS. All Loans (other than Swing Line Loans)
under this Agreement shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares of the Tranche A Term Loan Commitment, the
Tranche B Term Loan Commitment, the Working Capital Loan Commitment and the
Acquisition Loan Commitment, as the case may be, it being understood that no
Lender shall be responsible for any default by any other Lender in that other
Lender's obligation to make a Loan requested hereunder nor shall the Commitment
of any Lender to make the particular type of Loan requested be increased or
decreased as a result of a default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender or Swing Line Lender, as the case may be, of the proposed borrowing.
Each Lender shall make the amount of its Loan available to Administrative Agent
not later than 1:00 P.M. (Chicago time) on the applicable Funding Date, in each
case in same day funds in Dollars, at the Funding and Payment Office. Except as
provided in subsection 2.1A(iv) or subsection 3.3B with respect to Working
Capital Loans used to repay Refunded Swing Line Loans or to reimburse any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by
it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Loans made on the Closing Date), 4.2 (in the
case of Loans made on the Merger Date), 4.3 (in the case of Acquisition Loans)
and 4.4 (in the case of all Loans (other than Tranche A Term Loans made on the
Merger Date)), Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by 2:00 P.M. (Chicago time),
by causing an amount of same day funds in Dollars equal to the proceeds of all
such Loans received by Administrative
40
Agent from Lenders or Swing Line Lender, as the case may be, to be credited
to the account of Company at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any
Lender prior to the Funding Date for any Loans that such Lender does not
intend to make available to Administrative Agent the amount of such Lender's
Loan requested on such Funding Date, Administrative Agent may assume that
such Lender has made such amount available to Administrative Agent on such
Funding Date and Administrative Agent may, in its sole discretion, but shall
not be obligated to, make available to Company a corresponding amount on such
Funding Date. If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the Federal Funds Effective Rate
for three Business Days and thereafter at the interest rate applicable to the
relevant Loan. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the rate payable under this Agreement for Loans of
the type made on the Funding Date on which, and with respect to which,
Administrative Agent made available such amount. Nothing in this subsection
2.1C shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have
against any Lender as a result of any default by such Lender hereunder.
Unless Administrative Agent shall have been notified by Company
prior to the date on which it is scheduled to make payment to Administrative
Agent of a payment of principal, interest or fees to Administrative Agent for
the account of Lenders that Company does not intend to make available to
Administrative Agent such amount on such date, Administrative Agent may
assume that Company has made such amount available to Administrative Agent on
such date and Administrative Agent may, in its sole discretion, but shall not
be obligated to, make available to Lenders a corresponding amount on such
date. If such corresponding amount is not in fact made available to
Administrative Agent by Company, Administrative Agent shall be entitled to
recover such corresponding amount on demand from Company together with
interest thereon, for each day from such scheduled payment until the date
such amount is paid to Administrative Agent, at the interest rate applicable
to the relevant Loan. If Company does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
shall promptly notify Lenders and Lenders shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon,
for each day from the scheduled payment date until the date such amount is
paid to Administrative Agent, at the rate payable under this Agreement for
Loans of the type made on such scheduled payment date on which, and with
respect to which, Administrative Agent made available such amount.
D. NOTES. Company shall execute and deliver on the Closing Date
(i) to each Tranche A Term Loan Lender (or to Administrative Agent for that
Lender) that has so requested at least one Business Day prior to the Closing
Date a Tranche A Term Note substantially in the form of EXHIBIT IV annexed
hereto to evidence that Lender's Tranche A Term Loan, in the principal amount of
that Lender's Tranche A Term Loan Commitment and with other appropriate
41
insertions, (ii) to each Tranche B Term Loan Lender (or to Administrative
Agent for that Lender) that has so requested at least one Business Day prior
to the Closing Date a Tranche B Term Note substantially in the form of
EXHIBIT V annexed hereto to evidence that Lender's Tranche B Term Loan, in
the principal amount of that Lender's Tranche B Term Loan and with other
appropriate insertions, (iii) to each Working Capital Lender (or to
Administrative Agent for that Lender) that has so requested at least one
Business Day prior to the Closing Date a Working Capital Note substantially
in the form of EXHIBIT VI annexed hereto to evidence that Lender's Working
Capital Loans, in the principal amount of that Lender's Working Capital Loan
Commitment and with other appropriate insertions, (iv) to Swing Line Lender
(or to Administrative Agent for Swing Line Lender) if the Swing Line Lender
has so requested at least one Business Day prior to the Closing Date a Swing
Line Note substantially in the form of EXHIBIT VII annexed hereto to evidence
Swing Line Lender's Swing Line Loans, in the principal amount of the Swing
Line Loan Commitment and with other appropriate insertions and (v) to each
Acquisition Lender (or to Administrative Agent for that Lender) that has so
requested at least one Business Day prior to the Closing Date an Acquisition
Note substantially in the form of EXHIBIT VIII annexed hereto to evidence
that Lender's Acquisition Loan, in the principal amount of that Lender's
Acquisition Loan Commitment and with other appropriate insertions.
E. REGISTER. (a) Each Lender may maintain in accordance with its
usual practice an account or accounts evidencing the Indebtedness of Company
to such Lender resulting from each Loan made by such Lender to Company,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder. In the case of a Lender that does not
request, pursuant to the preceding paragraph, execution and delivery of a
Note or Notes evidencing the Loans made by such Lender to Company, such
account or accounts shall, to the extent not inconsistent with the notations
made by Administrative Agent in the Register (as defined below), be
conclusive and binding on Company absent manifest error; PROVIDED, HOWEVER,
that the failure of any Lender to maintain such account or accounts shall not
limit or otherwise affect any Obligations of Company or any other Loan Party.
(b)(i) Company hereby designates Administrative Agent to serve as
its agent, solely for the purpose of this subsection (b)(i), to maintain
a register (the "REGISTER") on which Administrative Agent will record
each Lender's Commitments, the Loans made by each Lender to Company, the
Interest Period, if any, with respect thereto and each repayment in
respect of the principal amount of the Loans of each Lender to Company
and annexed to which Administrative Agent shall retain a copy of each
Assignment Agreement delivered to Administrative Agent pursuant to
Section 10.1. Failure to make any recordation, or any error in such
recordation, shall not affect Company's obligations in respect of such
Loans. The entries in the Register shall be conclusive, in the absence
of manifest error, and Company, Administrative Agent and the Lenders
shall treat each Person in whose name a Loan (and as provided in
subsection (b)(ii), the Note evidencing such Loan, if any) is registered
as the owner thereof for all purposes of this Agreement notwithstanding
notice or any provision herein to the contrary. Any Commitment of any
Lender and the Loans made pursuant thereto may be assigned or otherwise
transferred in whole or in part only by registration of such assignment
or transfer in the Register. Any assignment or transfer of any
Commitment of any Lender or the Loans made pursuant thereto shall be
registered in the Register only upon delivery to Administrative Agent of
42
an Assignment Agreement duly executed by the assignor thereof. No
assignment or transfer of any Commitment of any Lender or the Loans made
pursuant thereto shall be effective, unless such assignment or transfer
shall have been recorded in the Register by Administrative Agent as
provided in this Section.
(ii) Company agrees that, upon the request by any Lender which
becomes a party to this Agreement after the date hereof to Administrative
Agent, Company will execute and deliver to such Lender a Note evidencing
the Loans made by such Lender to Company. Company authorizes each Lender
to make (or cause to be made) appropriate notations on the grid attached
to such Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, INTER ALIA, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not consistent with the notations made by Administrative
Agent in the Register, be conclusive and binding on Company absent
manifest error; PROVIDED, HOWEVER, that the failure of any Lender to make
any such notations or any error in any such notations shall not limit or
otherwise affect any Obligations of Company or any other Loan Party. The
Loans evidenced by any such Note and interest thereon shall at all times
(including after assignment pursuant to Section 10.1) be represented by
one or more Notes payable to the order of the payee named therein and its
registered assigns. A Note and the obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the
obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of an
obligation evidenced by a Note shall be registered in the Register only
upon surrender for registration of assignment or transfer of the Note
evidencing such obligation, accompanied by an Assignment Agreement duly
executed by the assignor thereof, and thereupon, if requested by the
assignee, one or more new Notes shall be issued by Company to the
designated assignee marked "exchanged". No assignment of a Note and the
obligation evidenced thereby shall be effective unless it shall have been
recorded in the Register by Administrative Agent as provided in this
Section.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsection 2.6,
each Loan shall bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate or the Adjusted Eurodollar Rate.
Each Swing Line Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The
applicable basis for determining the rate of interest with respect to any
Loan shall be selected by Company initially at the time a Notice of Borrowing
is given with respect to such Loan pursuant to subsection 2.1B, and the basis
for determining the interest rate with respect to any Loan may be changed
from time to time pursuant to subsection 2.2D.
43
(i) (a) Subject to the provisions of subsection 2.2E, the
Tranche A Term Loans, the Working Capital Loans and the Acquisition Loans
shall bear interest through maturity as follows:
(1) if a Base Rate Loan, then at the sum of the
Base Rate PLUS the Base Rate Margin set forth in the table
below opposite the Consolidated Leverage Ratio as set forth
in the most recent Margin Determination Certificate
delivered pursuant to subsection 6.1(iv); or
(2) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate for the Interest Period
applicable to such Loan PLUS the Eurodollar Rate Margin set
forth in the table below opposite the Consolidated Leverage
Ratio as set forth in the most recent Margin Determination
Certificate delivered pursuant to subsection 6.1(iv):
Applicable
Eurodollar Rate Applicable Base
Consolidated Leverage Ratio Margin Rate Margin
--------------------------- -------- -------------
Greater than or equal to 2.25% 1.00%
5.00:1.00
Greater than or equal to 2.00% 0.75%
4.00:1.00 but less than
5.00:1.00
Greater than or equal to 1.50% 0.25%
3.00:1.00 but less than
4.00:1.00
Less than 3.00:1.00 1.00% 0.00%
PROVIDED that until the delivery of the first Margin Determination
Certificate pursuant to subsection 6.1(iv) after the six-month anniversary of
the Closing Date, the applicable margin for Tranche A Term Loans, Working
Capital Loans and Acquisition Loans that are Eurodollar Rate Loans shall be
2.25% per annum and for Tranche A Term Loans, Working Capital Loans, Swing
Line Loans and Acquisition Loans that are Base Rate Loans shall be 1.00% per
annum; PROVIDED FURTHER in the event that at any time during the period from
the Closing Date until the consummation of the Merger, Acquisition Co. shall
own less than the Minimum Shares, then for each day or part of a day that
Acquisition Co. owns less than the Minimum Shares, the applicable margins
shall be increased by an additional 1.00% per annum.
Changes in the applicable margin for Tranche A Term Loans, Working
Capital Loans and Acquisition Loans resulting from a change in the
Consolidated Leverage Ratio shall become effective as provided in subsection
2.3C.
44
If at any time a Margin Determination Certificate is not delivered at
the time required pursuant to subsection 6.1(iv), from the time such Margin
Determination Certificate was required to be delivered until delivery of such
Margin Determination Certificate, such applicable margins shall be the
maximum percentage amount for the relevant Loan set forth above.
(b) Subject to the provisions of subsection 2.2E, the
Tranche B Term Loans shall bear interest through maturity as
follows:
(1) if a Base Rate Loan, then at the sum of the
Base Rate PLUS 1.25% per annum; or
(2) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate for the Interest Period
applicable to such Loan PLUS 2.50% per annum;
PROVIDED that in the event that at any time during the period from the
Closing Date until the consummation of the Merger, Acquisition Co. shall own
less than the Minimum Shares, then for each day or part of a day that
Acquisition Co. owns less than the Minimum Shares, the applicable margins
shall be increased by an additional 1.00% per annum.
(ii) Subject to the provisions of subsection 2.2E, the Swing
Line Loans shall bear interest through maturity at the sum of the Base
Rate PLUS the Base Rate Margin for Working Capital Loans minus the
commitment fee percentage then in effect for Working Capital Loans as
determined pursuant to subsection 2.3A(i).
B. INTEREST PERIODS. In connection with each Eurodollar Rate
Loan, Company may, pursuant to the applicable Notice of Borrowing or Notice
of Conversion/Continuation, as the case may be, select an interest period
(each an "INTEREST PERIOD") to be applicable to such Loan, which Interest
Period shall be, at Company's option, either a one, two, three, six, or, if
available, nine or twelve month period; PROVIDED that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a Eurodollar Rate Loan, or on the date
specified in the applicable Notice of Conversion/Continuation, in the
case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
45
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on the
last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond September 30, 2004, no Interest
Period with respect to any portion of the Tranche B Term Loans shall
extend beyond September 30, 2005, no Interest Period with respect to any
portion of the Working Capital Loans shall extend beyond the Working
Capital Loan Commitment Termination Date and no Interest Period with
respect to any portion of the Acquisition Loans shall extend the
Acquisition Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the
Tranche A Term Loans or the Tranche B Term Loans shall extend beyond a
date on which Company is required to make a scheduled payment of
principal of the Tranche A Term Loans or the Tranche B Term Loans, as the
case may be, unless the sum of (a) the aggregate principal amount of
Tranche A Term Loans or Tranche B Term Loans, as the case may be, that
are Base Rate Loans PLUS (b) the aggregate principal amount of Tranche A
Term Loans or Tranche B Term Loans, as the case may be, that are
Eurodollar Rate Loans with Interest Periods expiring on or before such
date equals or exceeds the principal amount required to be paid on the
Tranche A Term Loans or Tranche B Term Loans, as the case may be, on such
date;
(vii) there shall be outstanding at any time no more than four
Interest Periods with respect to the Tranche A Term Loans, four Interest
Periods with respect to the Tranche B Term Loans, six Interest Periods
with respect to the Working Capital Loans and four Interest Periods with
respect to the Acquisition Loans; and
(viii) in the event Company fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month
; PROVIDED that with respect to each Term Loan made on the Closing Date or
the Merger Date, the initial Interest Period will commence on the Business
Day on which such Term Loan is made (or, if such Term Loan is made as a Base
Rate Loan, the initial Interest Period will commence on the date specified in
the Notice of Conversion delivered with respect thereto) and shall end on the
last Business Day of the month following the month in which such Term Loan is
made.
C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each
Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity); PROVIDED that in the event any Swing Line Loans
or any Working Capital Loans or any Acquisition Loans that are Base Rate
Loans are prepaid pursuant to subsection 2.4B(i), interest accrued on such
Swing Line Loans or Working Capital Loans or
46
Acquisition Loans through the date of such prepayment shall be payable on the
next succeeding Interest Payment Date applicable to Base Rate Loans (or, if
earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time all
or any part of its outstanding Loans equal to $1,000,000 and multiples of
$100,000 in excess of that amount from Loans bearing interest at the Base
Rate to Loans bearing interest at the Eurodollar Rate or all or any part of
its outstanding Loans equal to $1,000,000 and multiples of $100,000 in excess
of that amount from Loans bearing interest at the Eurodollar Rate to Loans
bearing interest at the Base Rate or (ii) upon the expiration of any Interest
Period applicable to a Eurodollar Rate Loan, to continue all or any portion
of such Loan equal to $1,000,000 and multiples of $100,000 in excess of that
amount as a Eurodollar Rate Loan.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 10:00 A.M. (Chicago time) on the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at
least three Business Days in advance of the proposed conversion/continuation
date (in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan). Notice of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount
and type of the Loan to be converted/continued, (iii) the nature of the
proposed conversion/continuation, (iv) in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and
is continuing as of the date of the proposed conversion/continuation. In
lieu of delivering the above-described Notice of Conversion/Continuation,
Company may give Administrative Agent telephonic notice by the required time
of any proposed conversion/continuation under this subsection 2.2D; PROVIDED
that such notice shall be promptly confirmed in writing by delivery of a
Notice of Conversion/Continuation to Administrative Agent on or before the
proposed conversion/continuation date. Upon receipt of written or telephonic
notice of any proposed conversion/continuation under this subsection 2.2D,
Administrative Agent shall promptly transmit such notice by telefacsimile or
telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or
for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the
interest rate with respect to any Loans in accordance with this Agreement
pursuant to any such telephonic notice Company shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation
of, a Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith or to pay the amounts payable pursuant to Section 2.6D as a result
of the failure to effect such continuation/conversion.
47
E. DEFAULT RATE. Upon the occurrence and during the continuation
of any Event of Default, at the request of Administrative Agent, the
outstanding principal amount of all Loans and, to the extent permitted by
applicable law, any interest payments thereon not paid when due and any fees
and other amounts then due and payable hereunder, shall thereafter bear
interest (including post-petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws) payable upon demand at a
rate that is 2% per annum in excess of the interest rate otherwise payable
under this Agreement with respect to the applicable Loans (or, in the case of
any such fees and other amounts, at a rate which is 2% per annum in excess of
the interest rate otherwise payable under this Agreement for Base Rate Loans
that are Working Capital Loans); PROVIDED that, in the case of Eurodollar
Rate Loans, upon the expiration of the Interest Period in effect at the time
any such increase in interest rate is effective such Eurodollar Rate Loans
shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable under this Agreement for Base Rate Loans. Payment or
acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of any Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed (i) in the case of Base Rate Loans, on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of Eurodollar Rate
Loans, on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on
any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan (if payment is received prior
to 2:00 P.M. (Chicago time)) or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to
such Eurodollar Rate Loan, as the case may be, shall be excluded, provided
that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES.
(i) WORKING CAPITAL COMMITMENTS. Company agrees to pay to
Administrative Agent, for distribution to each Working Capital Lender in
proportion to that Lender's Pro Rata Share of the Working Capital Loan
Commitments, commitment fees for each day during the period from and
including the Closing Date to and excluding the Working Capital Loan
Commitment Termination Date (or, if earlier, the date of termination of
the Working Capital Loan Commitments in their entirety) on the excess on
such day of the Working Capital Loan Commitments over the sum of (i) the
aggregate principal amount of outstanding Working Capital Loans on such
day plus (ii) the Letter of Credit Usage (but not including any
outstanding Swing Line Loans) on such day at a rate per annum equal to
the commitment fee percentage set forth below opposite the
48
Consolidated Leverage Ratio as set forth in the most recent Margin
Determination Certificate delivered pursuant to subsection 6.1(iv):
Working Capital Loan
Consolidated Leverage Ratio Commitment Fee Percentage
---------------------------------------------------------------------
Greater than or equal to 5.00:1.00 0.500%
Greater than or equal to 4.00:1.00 0.375%
but less than 5.00:1.00
Greater than or equal to 3.00:1.00 0.300%
but less than 4.00:1.00
Less than 3.00:1.00 0.250%
such commitment fees to be calculated on the basis of a 360-day year
and the actual number of days elapsed and to be payable quarterly in
arrears on each Quarterly Date of each year, commencing on the first
such date to occur after the Closing Date, and on the Working Capital
Loan Commitment Termination Date; PROVIDED that until the delivery of
the first Margin Determination Certificate pursuant to subsection
6.1(iv) after the six-month anniversary of the Closing Date the
applicable commitment fee percentage for the Working Capital Loan
Commitments shall be 0.50%. Changes in the applicable commitment fee
rate for Working Capital Loan Commitments resulting from a change in
the Consolidated Leverage Ratio shall become effective as provided in
subsection 2.3C. In the event that Company fails to deliver a Margin
Determination Certificate timely in accordance with the provisions of
subsection 6.1(iv), from the time such Margin Determination
Certificate was required to be delivered until such date as such a
Margin Determination Certificate is actually delivered, the applicable
commitment fee percentage shall be the maximum percentage amount set
forth above per annum.
(ii) ACQUISITION LOAN COMMITMENTS. Company agrees to pay to
Administrative Agent, for distribution to each Acquisition Lender in
proportion to that Acquisition Lender's Pro Rata Share of the
Acquisition Loan Commitments, commitment fees for each day during the
period from and including the Closing Date to and excluding the
Acquisition Loan Commitment Termination Date (or, if earlier, the date
of termination of the Acquisition Loan Commitments in their entirety)
on the excess on such day of the Acquisition Loan Commitments over the
aggregate principal amount of outstanding Acquisition Loans on such
date, (the "Unused Acquisition Loan Commitment Amount") at a rate per
annum equal to the commitment fee percentage set out below opposite
the Consolidated Leverage Ratio as set forth in the most recent Margin
Determination Certificate delivered pursuant to subsection 6.1(iv),
PROVIDED that on any date prior to the date of the delivery of the
first Margin Determination Certificate after the six month anniversary
of the Closing Date, if the Unused Acquisition Loan Commitment Amount
on such date is less than 50% of the aggregate Acquisition Loan
49
Commitments, the applicable commitment fee percentage on such date
shall be 0.75% per annum and if the Unused Acquisition Loan Commitment
Amount on such date is equal to or greater than 50% of the aggregate
Acquisition Loan Commitments, the applicable commitment fee percentage
on such date shall be 0.50% per annum:
Acquisition Loan
Commitment Fee Percentage
------------------------------------
Consolidated Leverage Ratio Utilization
Utilization GREATER OR EQUAL
LESS THAN 50% TO 50%
--------------------------------------------------------------------------------
Greater than or equal to 5.00:1.00 0.750% 0.500%
Greater than or equal to 4.00:1.00 0.625% 0.375%
but less than 5.00:1.00
Greater than or equal to 3.00:1.00 0.550% 0.300%
but less than 4.00:1.00
Less than 3.00:1.00 0.500% 0.250%
such commitment fees to be calculated on the basis of a 360-day year and
the actual number of days elapsed and to be payable quarterly in arrears
on each Quarterly Date of each year, commencing on the first such date to
occur after the Closing Date, and on the Acquisition Loan Commitment
Termination Date. Changes in the applicable commitment fee rate for
Acquisition Loan Commitments resulting from a change in the Consolidated
Leverage Ratio shall become effective as provided in Subsection 2.3c..
In the event that Company fails to deliver a Margin Determination
Certificate timely in accordance with the provisions of subsection
6.1(iv), from the time such Margin Determination Certificate was required
to be delivered until such date as such a Margin Determination
Certificate is actually delivered, the applicable commitment fee
percentage shall be the maximum percentage amount set forth above per
annum.
(iii) TRANCHE A TERM LOAN COMMITMENTS. Company agrees to pay to
Administrative Agent, for distribution to each Tranche A Term Loan Lender
in proportion to that Tranche A Term Loan Lender's Pro Rata Share of the
Tranche A Term Loan Commitments, commitment fees for the period from and
including the Closing Date to and excluding the Merger Date (or, if
earlier, the date of termination of the Tranche A Term Loan Commitments
in their entirety) on the daily average unused Tranche A Term Loan
Commitments during such period at a rate per annum equal to 2.25%; such
commitment fees to be calculated on the basis of a 360-day year and the
actual number of days elapsed and to be payable quarterly on each
Quarterly Date, commencing on the first such date to occur after the
Closing Date and on the Merger Date.
50
B. OTHER FEES. Company agrees to pay to Arranger and Agents such
other fees in the amounts and at the times separately agreed upon between
Company, Agents and Arranger.
C. DETERMINATION OF APPLICABLE MARGINS.
Subject to the last sentence of subsection 2.2A(i)(a), the last
sentence of subsection 2.3A(i) and the last sentence of subsection 2.3A(ii), the
Consolidated Leverage Ratio used to compute the applicable margin for Tranche A
Term Loans, Working Capital Loans and Acquisition Loans for purposes of
subsection 2.2A(i) and subsection 3.2 and the applicable commitment fee rates
for the Working Capital Loan Commitments and the Acquisition Loan Commitments
for purposes of subsection 2.3A (such applicable margins and commitment fee
rates being referred to in this subsection 2.3C as the "APPLICABLE MARGINS") for
any day shall be the Consolidated Leverage Ratio set forth in the Margin
Determination Certificate most recently delivered by Company to Administrative
Agent on or prior to such day pursuant to subsection 6.1(iv). Changes in the
Applicable Margins resulting from a change in the Consolidated Leverage Ratio
shall become effective on the first Business Day following delivery by Company
to Administrative Agent of a new Margin Determination Certificate pursuant to
subsection 6.1(iv). Notwithstanding the foregoing, Company may, in its sole
discretion, within ten Business Days following the end of any Fiscal Quarter,
deliver to Administrative Agent a written estimate (the "LEVERAGE RATIO
ESTIMATE") setting forth Company's good faith estimate of the Consolidated
Leverage Ratio (based on calculations contained in a Margin Determination
Certificate) that will be set forth in the next Margin Determination Certificate
required to be delivered by Company to Administrative Agent pursuant to
subsection 6.1(iv). In the event that the Leverage Ratio Estimate indicates
that there would be a change in the Applicable Margins resulting from a change
in the Consolidated Leverage Ratio, such change will become effective on the
first Business Day following delivery of the Leverage Ratio Estimate. In the
event that, once the next Margin Determination Certificate is delivered, the
Consolidated Leverage Ratio as set forth in such Margin Determination
Certificate differs from that calculated in the Leverage Ratio Estimate
delivered for the Fiscal Quarter with respect to which such Margin Determination
Certificate has been delivered, and such difference results in Applicable
Margins which are greater or lesser than the Applicable Margins theretofore in
effect, then (A) such greater or lesser Applicable Margins shall be deemed to be
in effect for all purposes of this Agreement from the first Business Day
following the delivery of the Leverage Ratio Estimate and (B) if Company shall
have theretofore made any payment of interest, commitment fees or letter of
credit fees in respect of the period from the first Business Day following the
delivery of the Leverage Ratio Estimate to the Business Day following actual
date of delivery of the Margin Determination Certificate, then, on the next
Quarterly Date, either (x) if the new Applicable Margins are greater than the
Applicable Margins theretofore in effect, Company shall pay as a supplemental
payment of interest, commitment fees and/or letter of credit fees, as
applicable, an amount which equals the difference between the amount of
interest, commitment fees and/or letter of credit fees that would otherwise have
been paid based on such new Consolidated Leverage Ratio and the amount of
interest, commitment ees and/or letter of credit fees, as applicable, actually
so paid, or (y) if the new Applicable Margins are less than the Applicable
Margins theretofore in effect, an amount shall be deducted from the interest,
commitment fees and/or letter of credit fees, as applicable, then otherwise
payable in an amount which equals the difference between the amount of interest,
commitment fees and/or letter of credit fees, as applicable, so paid and the
amount of
51
interest, commitment fees and/or letter of credit fees, as applicable,
that would otherwise have been paid based on such new Consolidated Leverage
Ratio (or, if no such payment is owed by Company to the applicable Lenders on
such next Quarterly Date, or if such amount owed by Company is less than such
difference, the applicable Lenders shall pay to Company on such next Quarterly
Date the amount of such difference less the amount, if any, owed by Company to
such Lenders on such Quarterly Date).
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN LOAN COMMITMENTS; GENERAL
PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS AND TRANCHE B TERM
LOANS.
(i) SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS. Company shall
make principal payments on the Tranche A Term Loans on each of the
following dates in the aggregate amount, expressed as a percentage of the
Tranche A Term Loan Lenders' aggregate original Tranche A Term Loan
Commitments, set forth opposite such date in the table set forth below:
---------------------------------------------------------
Scheduled Repayment Date Scheduled Repayment
of Tranche A Term Loans
----------------------------------------------------------
----------------------------------------------------------
December 31, 1999 1.25%
March 31, 2000 1.25%
June 30, 2000 1.25%
September 30, 2000 1.25%
December 31, 2000 2.50%
March 31, 2001 2.50%
June 30, 2001 2.50%
September 30, 2001 2.50%
December 31, 2001 5.00%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 5.00%
December 31, 2002 6.25%
March 31, 2003 6.25%
June 30, 2003 6.25%
September 30, 2003 6.25%
December 31, 2003 10.00%
March 31, 2004 10.00%
June 30, 2004 10.00%
September 30, 2004 10.00%
------------
Total 100.00%
------------
52
; PROVIDED that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced by an amount equal to the
aggregate principal amount of any voluntary or mandatory prepayments of
the Tranche A Term Loans in accordance with subsection 2.4B(iv); and
PROVIDED, FURTHER that the Tranche A Term Loans and all other amounts
owed hereunder with respect to the Tranche A Term Loans shall be paid in
full no later than September 30, 2004, and the final installment payable
by Company in respect of the Tranche A Term Loans on such date shall be
in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche A Term Loans.
(ii) SCHEDULED PAYMENTS OF TRANCHE B TERM LOANS. Company shall
make principal payments on the Tranche B Term Loans in installments on
each of the following dates in the aggregate amount set forth opposite
such date in the table set forth below:
53
---------------------------------------------------------
Scheduled Repayment Date Scheduled Repayment
of Tranche B Term Loans
---------------------------------------------------------
December 31, 1998 $112,500
March 31, 1999 $112,500
June 30, 1999 $112,500
September 30, 1999 $112,500
December 31, 1999 $112,500
March 31, 2000 $112,500
June 30, 2000 $112,500
September 30, 2000 $112,500
December 31, 2000 $112,500
March 31, 2001 $112,500
June 30, 2001 $112,500
September 30, 2001 $112,500
December 31, 2001 $112,500
March 31, 2002 $112,500
June 30, 2002 $112,500
September 30, 2002 $112,500
December 31, 2002 $112,500
March 31, 2003 $112,500
June 30, 2003 $112,500
September 30, 2003 $112,500
December 31, 2003 $112,500
March 31, 2004 $112,500
June 30, 2004 $112,500
September 30, 2004 $112,500
December 31, 2004 $10,575,000
March 31, 2005 $10,575,000
June 30, 2005 $10,575,000
September 30, 2005 $10,575,000
--------------------
Total $45,000,000
--------------------
; PROVIDED that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced by an amount equal to the aggregate
principal amount of any voluntary or mandatory prepayments of the Tranche B Term
Loans in accordance with subsection 2.4B(iv); and PROVIDED, FURTHER that the
Tranche B Term Loans and all other amounts owed hereunder with respect to the
Tranche B Term Loans shall be paid in full no later than September 30, 2005, and
the final installment payable by Company in respect of the Tranche B Term Loans
on such date
54
shall be in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement with
respect to the Tranche B Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon written or
telephonic notice to Administrative Agent on or prior to 2:00 PM (Chicago
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay
any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $250,000 and multiples of $10,000 in excess
of that amount. Company may, upon one Business Day's prior written or
telephonic notice by 12:00 Noon (Chicago time), in the case of Base Rate
Loans (other than Swing Line Loans), and three Business Days' prior
written or telephonic notice, in the case of Eurodollar Rate Loans, in
each case given to Administrative Agent by 11:00 A.M. (Chicago time) on
the date required and, if given by telephone, promptly confirmed in
writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time prepay any
such Loans on any Business Day in whole or in part in an aggregate
minimum amount of $1,000,000 and multiples of $100,000 in excess of that
amount, subject in the case of prepayments of Eurodollar Loans to
compliance with subsection 2.6D if such prepayment is made on a date
prior to the expiration of the applicable Interest Period. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall
be applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF LOAN COMMITMENTS. Company may,
upon not less than one Business Day's prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Working Capital Lender or Acquisition
Loan Lender, as the case may be), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or
penalty, (a) the Working Capital Loan Commitments in an amount up to the
amount by which the Working Capital Loan Commitments exceed the Total
Utilization of Working Capital Loan Commitments at the time of such
proposed termination or reduction, (b) the Acquisition Loan Commitments
in an amount up to the amount by which the Acquisition Loan Commitments
exceed the outstanding Acquisition Loans at the time of such proposed
termination or reduction; PROVIDED that any such partial reduction shall
be in an aggregate minimum amount of $1,000,000 and multiples of $100,000
in excess of that amount. Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination
or reduction of the Working Capital Loan Commitments and/or the
Acquisition Loan Commitments, as the case may be, shall be effective on
the date specified in Company's notice and shall reduce the Working
Capital Loan Commitment of each Working Capital Lender and/or the
Acquisition Loan
55
Commitments, as the case may be, of each Acquisition Loan Lender
proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF LOAN
COMMITMENTS. Upon and after the Merger Date, the Loans shall be prepaid
and/or the Acquisition Loan Commitments shall be permanently reduced in
the amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as set forth below or as more
specifically provided in subsection 2.4B(iv):
(a) PREPAYMENTS AND REDUCTIONS FROM NET ASSET SALE
PROCEEDS. No later than 30 calendar days following the date of
receipt by Company or any of its Subsidiaries of any Net Asset
Sale Proceeds in respect of any Asset Sale consummated after the
consummation of the Merger (other than any Asset Sale permitted
under subsections 7.7(iv) and 7.7(x) or an Asset Sale to Company
or a Subsidiary Guarantor), Company shall prepay the Loans and/or
the Acquisition Loan Commitments shall be permanently reduced in
an aggregate amount equal to such Net Asset Sale Proceeds;
PROVIDED that if Company states in the Officers' Certificate
delivered pursuant to subsection 2.4B(iii)(e) that Company or the
applicable Subsidiary intends to apply, within 365 days after the
receipt of such Net Asset Sale Proceeds, all or a portion (as
specified in such Officers' Certificate) of such Net Asset Sale
Proceeds to a Property Reinvestment Application Company shall not
be required to prepay the Loans and/or the Acquisition Loan
Commitments shall not be reduced by such amount to be applied to a
Property Reinvestment Application; provided further that to the
extent such amount of Net Asset Sale Proceeds is not applied to a
Property Reinvestment Application within such 365-day period,
Company shall, on the last day of such 365-day period prepay the
Loans and/or the Acquisition Loan Commitments shall be permanently
reduced by the aggregate amount equal to such amount of Net Asset
Sale Proceeds not so applied to Property Reinvestment Application.
(b) PREPAYMENTS AND REDUCTIONS FROM NET
INSURANCE/CONDEMNATION PROCEEDS. No later than the first Business
Day following the date of receipt by Administrative Agent or by
Company or any of its Subsidiaries after the Merger Date of any
Net Insurance/Condemnation Proceeds in excess of $250,000 with
respect to any loss or taking or series of related losses or
takings, Company shall prepay the Loans and/or the Acquisition
Loan Commitments shall be permanently reduced in an aggregate
amount equal to the amount of such Net Insurance/Condemnation
Proceeds; PROVIDED, HOWEVER, that (i) no such prepayment and/or
reduction shall be required to the extent under the terms of any
lease or other agreement existing on the date hereof such Net
Insurance/Condemnation Proceeds are required to be used to
replace, rebuild or repair the asset so damaged, destroyed or
taken and (ii) if Company states in the Officers' Certificate
delivered pursuant to subsection 2.4B(iii)(e) that Company or the
applicable Subsidiary intends to apply, within 365 days after the
receipt of such Net Insurance/Condemnation Proceeds, all or a
portion (as specified in such Officers' Certificate) of such Net
Insurance/Condemnation Proceeds to a Property
56
Reinvestment Application, Company shall not be required to
prepay Loans and/or the Acquisition Loan Commitments shall not
be reduced by such amount to be applied to a Property
Reinvestment Application; PROVIDED FURTHER that to the extent
such amount of Net Insurance/Condemnation Proceeds is not applied
to a Property Reinvestment Application within such 365-day
period, Company shall, on the last day of such 365-day period
prepay the Loans and/or the Acquisition Loan Commitments shall
be permanently reduced by the aggregate amount equal to such
amount of such Net Insurance/Condemnation Proceeds not so
applied to a Property Reinvestment Application.
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF DEBT
OR EQUITY SECURITIES. On the date of receipt by Parent, Company
or any of its Subsidiaries of the cash proceeds (any such cash
proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including
investment banking, legal, brokerage, accounting fees and
expenses, being "Net Securities Proceeds"), from the issuance of
equity Securities of Parent, Company or any of its Subsidiaries
after the Merger Date (other than Excluded Equity Proceeds) or of
debt Securities of Company or any of its Subsidiaries after the
Merger Date (other than the proceeds of the issuance of
Indebtedness permitted by subsection 7.1 (including without
limitation the proceeds from the sale of the Senior Subordinated
Notes)), Company shall prepay the Loans and/or the Acquisition
Loan Commitments shall be permanently reduced in an aggregate
amount equal to such Net Securities Proceeds in the case of the
proceeds of debt Securities and in an aggregate amount equal to
50% of such Net Securities Proceeds in the case of the proceeds of
equity Securities; PROVIDED the amount of such prepayment
hereunder in respect of Net Securities Proceeds constituting the
proceeds of the issuance and sale of equity Securities shall be
limited to the amount necessary to reduce the amount of
Indebtedness included in the calculation of the Consolidated
Leverage Ratio to the amount that would result, on a pro forma
basis after giving effect to such prepayment, in a Consolidated
Leverage Ratio of 3.50:1.00 or less at the end of the Fiscal
Quarter then most recently ended and (ii) no such prepayment in
respect of Net Securities Proceeds constituting the proceeds of
the issuance and sale of Equity Securities shall be required to be
made at such times as the Consolidated Leverage Ratio at the end
of the most recent Fiscal Quarter (as evidenced by a Margin
Determination Certificate delivered to Administrative Agent
pursuant to subsection 6.1(iv)) is equal to or less than
3.50:1.00.
(d) PREPAYMENTS AND REDUCTIONS FROM CONSOLIDATED EXCESS
CASH FLOW. In the event that there shall be Consolidated Excess
Cash Flow for any Fiscal Year (commencing with the Fiscal Year
ending December 31,1999), Company shall, no later than the fifth
Business Day after the delivery of financial statements for such
Fiscal Year, prepay the Loans and/or the Acquisition Loan
Commitments shall be permanently reduced in an aggregate amount
equal to 50% of such Consolidated Excess Cash Flow less the
aggregate amount of all voluntary prepayments of Term Loans
actually made in such Fiscal Year pursuant to subsection 2.4B(i);
57
PROVIDED that (i) the amount of such prepayment hereunder in
respect of Excess Cash Flow shall be limited to the amount
necessary to reduce the amount of Indebtedness included in the
calculation of the Consolidated Leverage Ratio to the amount that
would result, on a pro forma basis after giving effect to such
prepayment, in a Consolidated Leverage Ratio of 3.50:1 or less at
the end of the Fiscal Quarter then most recently ended and (ii) if
as of the last day of such Fiscal Year, the Consolidated Leverage
Ratio (as evidenced by a Margin Determination Certificate
delivered to Administrative Agent pursuant to subsection 6.1(iv))
is equal to or less than 3.50:1.00, no prepayments of any Loans
and no reduction of the Acquisition Loan Commitments or amount of
Consolidated Excess Cash Flow need be made.
(e) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL
PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS.
Concurrently with any prepayment of the Loans and/or reduction of
the Acquisition Loan Commitments pursuant to subsections
2.4B(iii)(a)-(d) and on the date any such prepayment and/or
reduction would have been required to be made pursuant to
subsections 2.4B(iii)(a) or 2.4B(iii)(b) but for the application
of the provisos to such subsections, Company shall deliver to
Administrative Agent an Officer's Certificate demonstrating the
calculation of the amount (the "NET PROCEEDS AMOUNT") of the
applicable Net Asset Sale Proceeds or Net Insurance/Condemnation
Proceeds, or Net Securities Proceeds (as such term is defined in
subsection 2.4B(iii)(c)), or the applicable Consolidated Excess
Cash Flow, as the case may be (and which, in the case of
Consolidated Excess Cash Flow, may be the Officer's Certificate
delivered pursuant to subsection 6.1(iii) with respect to the
financial statements for the Fiscal Year to which such excess cash
flow relates if such Officer's Certificate contains the required
information). In the event that Company shall subsequently
determine that the actual Net Proceeds Amount was greater than the
amount set forth in such Officer's Certificate, Company shall
promptly make an additional prepayment of the Loans (and/or, if
applicable, the Acquisition Loan Commitments shall be permanently
reduced) in an amount equal to the amount of such excess, and
Company shall concurrently therewith deliver to Administrative
Agent an Officer's Certificate demonstrating the derivation of the
additional Net Proceeds Amount resulting in such excess.
(f) Company shall not be required to make any prepayment
of Loans otherwise required by subsections 2.4B(iii)(a), (b), (c)
or (d) (and no reduction of the Acquisition Loan Commitments shall
take effect) unless and until the aggregate principal amount of
the Loans to be prepaid and/or Acquisition Loan Commitments to be
reduced is at least equal to $250,000.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS AND ORDER OF MATURITY. Any voluntary prepayments pursuant
to subsection 2.4B(i) shall be applied to the Loans as specified
by Company in the applicable notice of
58
prepayment; PROVIDED that in the event Company fails to
specify the Loans to which any such prepayment shall be
applied, such prepayment shall be applied FIRST to repay
outstanding Swing Line Loans to the full extent thereof,
SECOND to repay outstanding Term Loans to the full extent
thereof and THIRD to repay outstanding Acquisition Loans to the
full extent thereof and FOURTH to repay outstanding Working
Capital Loans to the full extent thereof. Any voluntary
prepayments of the Term Loans pursuant to subsection 2.4B(i)
(whether the application thereof is specified by Company or not)
shall be applied to prepay the Tranche A Term Loans and the
Tranche B Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) and to reduce
the scheduled installments of principal of the Tranche A Term
Loans and Tranche B Term Loans set forth in subsection 2.4A(i) and
2.4A(ii) in forward order of maturity.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF
LOANS. Any amount (the "Applied Amount") required to be applied
as a mandatory prepayment of the Loans and/or a reduction of the
Acquisition Loan Commitments pursuant to subsections
2.4B(iii)(a)-(d) shall be applied FIRST to prepay the Term Loans
to the full extent thereof, SECOND, to the extent of any
remaining portion of the Applied Amount, to prepay the
Acquisition Loans to the full extent thereof and to permanently
reduce the Acquisition Loan Commitments by the amount of such
prepayment, and THIRD, to the extent of any remaining portion of
the Applied Amount, to prepay the Swing Line Loans and thereafter
to prepay Working Capital Loans to the full extent thereof but in
either case without permanently reducing the Working Capital Loan
Commitments by the amount of such prepayments.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS
TO TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS AND THE SCHEDULED
INSTALLMENTS OF PRINCIPAL THEREOF. Any mandatory prepayments of
the Term Loans pursuant to subsection 2.4B(iii) shall be applied
to prepay the Tranche A Term Loans and the Tranche B Term Loans on
a pro rata basis (in accordance with the respective outstanding
principal amounts thereof) and to reduce the scheduled
installments of principal of the Tranche A Term Loans and Tranche
B Term Loans set forth in subsection 2.4A(i) and 2.4A(ii) in
forward order of maturity. Notwithstanding the foregoing, in the
case of any mandatory prepayment of the Tranche B Term Loans,
Company may elect to offer the Tranche B Term Loan Lenders the
option to waive the right to receive the amount of such mandatory
prepayment of the Tranche B Term Loans. If any Term B Lender or
Lenders elect to waive the right to receive the amount of such
mandatory prepayment, 50% of the amount that otherwise would have
been applied to mandatorily prepay the Tranche B Term Loans of
such Lender or Lenders shall be applied instead to the further
prepayment of the Tranche A Term Loans (and any such prepayment
shall reduce scheduled installments of principal of the Tranche A
Term Loans set forth in subsection 2.4A(i) in forward order of
maturity) to the extent any are then outstanding and the remaining
amount shall be retained by Company.
59
(d) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND
EURODOLLAR RATE LOANS. Considering Tranche A Term Loans,
Tranche B Term Loans, Working Capital Loans and Acquisition Loans
being prepaid separately, any prepayment thereof shall be applied
as specified by Company to Administrative Agent on or prior to the
date of the relevant prepayment or, absent such specification,
first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by
Company pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 2:00 P.M. (Chicago time) on the date
due at the Funding and Payment Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall
be deemed to have been paid by Company on the next succeeding Business
Day.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except
as provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans shall be apportioned among all
outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its primary address
set forth below its name on the appropriate signature page hereof or at
such other address as such Lender may request, its Pro Rata Share of all
such payments received by Administrative Agent and the commitment fees of
such Lender when received by Administrative Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
60
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER
GUARANTIES
(i) APPLICATION OF PROCEEDS OF COLLATERAL. Except as provided
in subsection 2.4B(iii)(a) with respect to prepayments from Net Asset
Sale Proceeds or utilization thereof by Company, or subsection
2.4B(iii)(b) with respect to prepayments from Net Insurance/Condemnation
Proceeds or utilization thereof by Company, all proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral
Document shall be applied, upon the occurrence and during the continuance
of an Event of Default, against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable fees
and expenses of Administrative Agent and its agents and counsel,
and all other expenses and liabilities made or incurred by
Administrative Agent in connection therewith, and all amounts for
which Administrative Agent is entitled to indemnification under
such Collateral Document and all advances made by Administrative
Agent thereunder for the account of the applicable Loan Party, and
to the payment of all costs and expenses paid or incurred by
Administrative Agent in connection with the exercise of any right
or remedy under such Collateral Document, all in accordance with
the terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds,
to the payment of all other such Secured Obligations then due
and payable for the ratable benefit of the holders thereof;
(c) thereafter, to the extent of any excess such proceeds,
to the payment of cash collateral for Letters of Credit for the
ratable benefit of the Issuing Lenders thereof and holders of
participations therein; and
(d) thereafter, to the extent of any excess such proceeds,
to the payment to or upon the order of such Loan Party or to
whosoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER GUARANTIES. All payments
received by Administrative Agent under any of the Guaranties at any time
at which an Event of Default has occurred and is continuing, shall be
applied promptly from time to time by Administrative Agent in the
following order of priority:
(a) to the payment of the costs and expenses of any
collection or other realization under the Guaranties, including
reasonable fees and expenses of Administrative Agent and its
agents and counsel, and all expenses, liabilities and advances
made or incurred by Administrative Agent in connection therewith,
all in accordance with the terms of this Agreement and such
Guaranty;
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(b) thereafter, to the extent of any excess such payments,
to the payment of all other Guarantied Obligations (as defined
in such Guaranty) then due and payable for the ratable benefit
of the holders thereof;
(c) thereafter, to the extent of any excess such payments,
to the payment of cash collateral for Letters of Credit for the
ratable benefit of the Issuing Lenders thereof and holders of
participations therein; and
(d) thereafter, to the extent of any excess such payments,
to the payment to Parent or to the applicable Subsidiary
Guarantor or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans, together with other
funds available to Company, shall be applied by Company to pay the
Acquisition Financing Requirements. To the extent Company advances to DAH
proceeds of the Term Loans on the Closing Date to repay the Existing DAH
Debt, such advances shall be evidenced by the Intercompany Note Relating to
Tranche A Term Loans and Working Capital Loans and /or the Intercompany Note
Relating to Tranche B Term Loans, as the case may be, which notes shall be
pledged by Company to Administrative Agent pursuant to the Finance Co. Pledge
Agreement. To the extent the proceeds of the Tranche B Term Loans are not
utilized on the Closing Date, the excess proceeds shall be deposited by
Company into the Investment Accounts for the benefit of the Lenders and
invested in Cash Equivalents specified in the Investment Account Agreement,
as directed by Company, until the Merger Date.
B. WORKING CAPITAL LOANS; SWING LINE LOANS. The proceeds of the Working
Capital Loans and any Swing Line Loans may be applied by Company for working
capital and general and other corporate purposes, including the making of
advances to DAH as described below. Up to $10,600,000 of Working Capital
Loans made on the Closing Date and/or the Merger Date may be used to pay the
Acquisition Financing Requirements. The Working Capital Loans may be
advanced by Company to DAH during the period from and including the Closing
Date to and including the Merger Date for working capital and general and
other corporate purposes. To the extent Company advances to DAH proceeds of
the Working Capital Loans during such period, such advances shall be
evidenced by the Intercompany Note Relating to Tranche A Term Loans and
Working Capital Loans which note shall be pledged by Company to
Administrative Agent pursuant to the Finance Co. Pledge Agreement.
C. ACQUISITION LOANS. The proceeds of the Acquisition Loans shall be
applied by Company to finance directly or indirectly the costs of Permitted
Acquisitions.
D. MARGIN REGULATIONS. No borrowing and no portion of the proceeds of
any borrowing under this Agreement shall be used by Company or any of its
Subsidiaries in any manner that is in violation of Regulation U or Regulation
X of the Board of Governors of the Federal Reserve System in effect on the
date or dates of such borrowing and such use of proceeds.
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2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 11:00 A.M. (London time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Eurodollar Rate Loans, that
deposits in U.S. Dollars for the relevant Interest Period are not available
to Administrative Agent in the London interbank market or by reason of
circumstances affecting the London interbank market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies
Company and Lenders that the circumstances giving rise to such notice no
longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by
Company or, at the sole option of Company, the proposed Loans requested to be
made in such Notice of Borrowing or Notice of Conversion, Continuation, as
the case may be, shall instead be made as, or converted to or continued as,
Base Rate Loans.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans has become
unlawful as a result of the introduction of, or any change in or in the
interpretation of, any law, treaty, governmental rule, regulation, guideline or
order (whether or not having the force of law even though the failure to comply
therewith would not be unlawful), in each case after the date hereof, then, and
in any such event, such Lender shall be an "AFFECTED LENDER" and it shall on
that day give notice (by telefacsimile or by telephone confirmed in writing) to
Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Eurodollar Rate Loans shall be suspended until such notice shall be
withdrawn by the Affected Lender (which such Affected Lender shall do promptly
upon obtaining actual knowledge that the circumstance giving rise to such
suspension no longer exist), (b) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
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such Loan to, as the case may be) a Base Rate Loan (with interest thereon being
payable on the same date or dates on which interest is payable in respect of the
corresponding Loans of Lenders that are not Affected Lenders), (c) the Affected
Lender's obligation to maintain its outstanding Eurodollar Rate Loans (the
"AFFECTED LOANS") shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination (with interest thereon being
payable on the same date or dates on which interest is payable in respect of the
corresponding Loans of Lenders that are not Affected Lenders). Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Company pursuant
to a Notice of Borrowing or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds but excluding any loss of
margin for any period after any failure to borrow, continue or convert any
Eurodollar Loans, or any prepayment of Eurodollar Loans described below) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment
(including any prepayment pursuant to subsection 2.4B(i)) or other principal
payment or any conversion of any of its Eurodollar Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Loan, or (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender; provided that Company
shall not be liable for any additional amounts pursuant to subsection 2.7 as a
result thereof nor shall any such action, by itself, cause such Lender to become
an Affected Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each
of its relevant Eurodollar Rate Loans through the
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purchase of a Eurodollar deposit bearing interest at the rate obtained
pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an
amount equal to the amount of such Eurodollar Rate Loan and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; PROVIDED, HOWEVER,
that each Lender may fund each of its Eurodollar Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this subsection 2.6 and under
subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of
and during the continuation of a Potential Event of Default or an Event of
Default, Company may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest
Period then in effect for that Loan.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation of order), or any determination
of a court or governmental authority, in each case that becomes effective
after the date hereof (in the case of each Lender listed on the signature
pages hereof and in the case of any other Lender if such change shall have
affected a class of Lenders generally) or after the date of the Assignment
Agreement pursuant to which such Lender became a Lender (in the case of any
other Lender if such change shall not have affected a class of Lenders
generally), or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
of law):
(i) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or
(ii) imposes any other condition (other than with respect to a
tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Eurodollar Rate Loans hereunder or to
reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, Company shall pay
to such Lender, within 15 days after receipt of the statement
65
referred to in the next sentence, such additional amount or amounts as may be
necessary to compensate such Lender for any such increased cost or reduction
in amounts received or receivable hereunder. Such Lender shall promptly
deliver to Company (with a copy to Administrative Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which statement shall
be conclusive and binding upon all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by Company
under this Agreement and the other Loan Documents shall (except to the
extent required by law) be paid free and clear of, and without any
deduction on account of, any Tax .
(ii) GROSSING-UP OF PAYMENTS. If Company is required by law to
make any deduction or withholding on account of any such Tax from any sum
paid or payable by Company to Administrative Agent or any Lender under
any of the Loan Documents:
(a) Company shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made for its
own account;
(b) the sum payable by Company in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making
of that deduction, withholding or payment, Administrative Agent or
such Lender, as the case may be, receives on the due date a net
sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(c) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, or within 30
days after the due date of payment of any Tax which it is required
by clause (a) above to pay (whichever is later), Company shall
deliver to Administrative Agent evidence available to the Company
reasonably satisfactory to Administrative Agent of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority;
PROVIDED that no such additional amount shall be required to be paid to
any Lender or Agent under clause (b) above except to the extent that any
change after the date hereof (in the case of each Lender and Agent listed
on the signature pages hereof) or after the date of the Assignment
Agreement pursuant to which such Lender became a Lender (in the case of
each other Lender) in any such requirement for a deduction, withholding
or payment as is mentioned therein shall result in an increase in the
rate of such deduction, withholding or payment from that in effect at the
date of this Agreement or at the date of such Assignment Agreement, as
the case may be, in respect of payments to such Lender or Agent.
(iii) If any Taxes are directly asserted against either of the
Agents or any Lender with respect to any payment received by such Agents
or such Lender under the
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Agreement, such Agents or such Lender may pay such Taxes and the Company
will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net
amount received by such Person shall equal the amount of such Taxes paid
by such Person; PROVIDED, HOWEVER, that the Company shall not be
obligated to make payment to the Lenders or the Agents (as the case may
be) pursuant to this sentence in respect of penalties or interest
attributable to any Taxes, if written demand therefor has not been made
by such Lenders or the Agents within 60 days from the date on which such
Lenders or the Agents knew of the imposition of Taxes by the relevant
taxing authority or for any additional imposition which may arise from
the failure of the Lenders or Agents to apply payments in accordance
with the applicable tax law after the Company has made the payments
required hereunder; PROVIDED, FURTHER, HOWEVER, that the Company shall
not be required to pay any such additional amounts except to the extent
that any change after the date hereof (in the case of each Lender and
Agent listed on the signature pages hereof) or after the date of the
Assignment Agreement pursuant to which such Lender became a Lender (in
the case of each other Lender) in any such requirement for the deduction,
withholding or payment of Taxes shall result in an increase in the rate
of such deduction, withholding or payment from that in effect at the
date of this Agreement or at the date of such Assignment Agreement, as
the case may be, in respect of payments to such Lender or Agent. After
a Lender or an Agent (as the case may be) learns of the imposition of
Taxes, such Lender or Agent will act in good faith to notify the Company
of their obligations hereunder as soon as reasonably possible.
(iv) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender and Agent that is not (i) a citizen or
resident of the United States, (ii) a corporation, partnership or
other entity created or organized in or under the laws of the
United States, or any state or other political subdivision
thereof, (iii) an estate that is subject to U.S. federal income
taxation regardless of the source of its income or (iv) a trust,
if any only if (A) a court within the United States is able to
exercise primary supervision over the administration of the trust
and (B) one or more U.S. persons has the authority to control all
substantial decisions of the trust (for purposes of this
subsection 2.7B(iv), any such Person referred to in clauses (i)
through (iv) being a "NON-US LENDER OR AGENT") shall deliver to
Administrative Agent (which shall promptly deliver an original
copy to Company) on or prior to the Closing Date (in the case of
each Lender and Agent listed on the signature pages hereof) or on
or prior to the date of the Assignment Agreement pursuant to which
it becomes a Lender (in the case of each other Lender), and at
such other times as may be necessary in the determination of
Company or Administrative Agent (each in the reasonable exercise
of its discretion), (1) two or more (as Company or Administrative
Agent reasonably request) original copies of Internal Revenue
Service Form 1001 or 4224 (or any successor forms), properly
completed and duly executed by such Lender, together with any
other certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to
any payments to such Lender of principal, interest, fees or other
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amounts payable under any of the Loan Documents or (2) if such
Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with
two or more (as Company or Administrative Agent reasonably
request) original copies of Internal Revenue Service Form W-8 (or
any successor form), properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of interest
payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iv)(a) hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall on or
before the date that any such form, certification or other
evidence becomes obsolete or inaccurate (1) deliver to
Administrative Agent (which shall promptly deliver an original
copy to Company) two or more (as Company or Administrative Agent
may reasonably request) new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and
two or more (as Company or Administrative Agent may reasonably
request) new original copies of Internal Revenue Service Form W-8,
as the case may be, properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such
Lender is not subject to deduction or withholding of United States
federal income tax with respect to payments to such Lender under
the Loan Documents or (2) notify Administrative Agent and Company
of its inability to deliver any such forms, certificates or other
evidence. Each Lender and each Agent agrees, to the extent
reasonable and without material cost to it, to provide to Company
and Administrative Agent such other applicable forms or
certificates that would reduce or eliminate any Tax.
(c) Company shall not be required to pay any additional
amount to any Non-US Lender or Agent under subsection 2.7B(ii) or
2.7B(iii)if such Lender or Agent shall have failed to satisfy the
requirements of clause (a) or (b)(1) of this subsection 2.7B(iv);
PROVIDED that if such Lender shall have satisfied the requirements
of subsection 2.7B(iv)(a) on the Closing Date (in the case of each
Lender listed on the signature pages hereof) or on the date of the
Assignment Agreement pursuant to which it became a Lender (in the
case of each other Lender), nothing in this subsection 2.7B(iv)(c)
shall relieve Company of its obligation to pay any additional
amounts pursuant to subsection 2.7B(ii) in the event that, as a
result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation,
administration or
68
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent
date establishing the fact that such Lender is not subject to
withholding as described in subsection 2.7B(iv)(a).
(v) If Company determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or
either of the Agents, if requested by Company, the relevant Lender or
Agent, as the case may be, shall reasonably cooperate with Company in
challenging such Tax at Company's expense; PROVIDED, HOWEVER, that
nothing in this subsection 2.7B(v) shall require any Lender to submit to
Company or any other Person any tax returns or any part thereof, or to
prepare or file any tax returns other than as such Lender in its sole
discretion shall determine.
(vi) If a Lender or an Agent shall receive a refund (including
any offset or credits) from a taxing authority (as a result of any error
in the imposition of Taxes by such taxing authority) of any Taxes paid by
Company pursuant to subsection 2.7B(ii) and 2.7B(iii) above, such Lender
or the Agent (as the case may be) shall promptly pay Company the amount
so received, with interest, if any, from the taxing authority with
respect to such refund, net of any tax liability incurred by such Lender
or Agent that is attributable to the receipt of such refund and such
interest; PROVIDED that such Lender or Agent, as the case may be, shall
be entitled to use reasonable methods to calculate the allocation of any
such refund payable to Company so long as such method does not result in
a materially reduced amount being paid to Company as compared to
similarly situated borrowers.
(vii) Each Lender and each Agent agrees, to the extent reasonable
and without material cost to it, to cooperate with the Company to
minimize any amounts payable by the Company under this Section 2.7B;
PROVIDED, HOWEVER, that nothing in this Section 2.7B shall require any
Lender to take any action which, in the sole discretion of such Lender,
is inconsistent with its internal policy and legal and regulatory
restrictions.
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof (in the case of each Lender listed on the signature pages hereof and in
the case of any other Lender if such change shall have affected a class of
Lenders generally) or after the date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of any other Lender if such
change shall not have affected a class of Lenders generally) of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
after such date therein or in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency issued after such
date, has or would have the effect of reducing the rate of return on the capital
of such Lender or any corporation controlling such Lender as a consequence of,
or with reference to, such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with respect to the Loans
or the Letters of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance
69
(taking into consideration the policies of such Lender or such controlling
corporation with regard to capital adequacy), then from time to time, within
15 days after receipt by Company from such Lender of the statement referred
to in the next sentence, Company shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such controlling
corporation for such reduction. Such Lender shall deliver to Company (with a
copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such additional amounts,
which statement shall be conclusive and binding upon all parties hereto
absent manifest error; provided that such Lender may not impose materially
greater costs on Company than on similarly situated borrowers by the virtue
of the methodology applied to calculate such additional amounts.
D. PERIOD OF RECOVERY. Company shall not be obligated to compensate
any Lender for any costs or additional amounts with respect to which such Lender
may request compensation pursuant to this subsection 2.7 or subsection 3.6 to
the extent such costs have accrued, or have been incurred, prior to 180 days
prior to the date on which such Lender demands compensation therefor hereunder.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE; REPLACEMENT OF
LENDER.
A. MITIGATION. Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7 or subsection 3.6, it will, to the extent not
inconsistent with the internal policies of such Lender or Issuing Lender and any
applicable legal or regulatory restrictions, use reasonable efforts (i) to make,
issue, fund or maintain the Commitments of such Lender or the affected Loans or
Letters of Credit of such Lender or Issuing Lender through another lending or
letter of credit office of such Lender or Issuing Lender, or (ii) take such
other measures as such Lender or Issuing Lender may deem reasonable, if as a
result thereof the circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender or Issuing Lender pursuant to subsection 2.7
or subsection 3.6 would be reduced and if, as determined by such Lender or
Issuing Lender in its sole discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit through such other
lending or letter of credit office or in accordance with such other measures, as
the case may be, would not otherwise materially adversely affect such
Commitments or Loans or Letters of Credit or the interests of such Lender or
Issuing Lender; PROVIDED that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office pursuant to
this subsection 2.8 unless Company agrees to pay all incremental expenses
incurred by such Lender or Issuing Lender as a result of utilizing such other
lending or letter of credit office as described in clause (i) above. A
certificate as to the amount of any such expenses payable by Company pursuant to
this subsection 2.8 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender or Issuing Lender to Company (with a copy
to Administrative Agent) shall be conclusive absent manifest error.
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B. REPLACEMENT OF LENDER. If Company receives a notice of amounts
due pursuant to subsection 2.7A, subsection 2.7B or subsection 2.7C or
subsection 3.6 from a Lender or a Lender becomes an Affected Lender, a
Non-Funding Lender or a Non-Consenting Lender (any such Lender, a "Subject
Lender"), so long as (i) Company has obtained a commitment from another
Lender or an Eligible Assignee to purchase at par the Subject Lender's Loans
and assume the Subject Lender's Commitments and all other obligations of the
Subject Lender hereunder, and (ii) such Lender is not an Issuing Lender with
respect to any Letters of Credit outstanding (unless all such Letters of
Credit are terminated or arrangements acceptable to such Issuing Lender (such
as a "back-to-back" letter of credit) are made, it being understood that a
Standby Letter of Credit issued hereunder shall constitute such an
arrangement acceptable to such Issuing Lender) upon written notice to the
Subject Lender and Administrative Agent, Company may require the Subject
Lender to assign all of its Loans and Commitments to such other Lender or
Eligible Assignee pursuant to the provisions of subsection 10.1B; PROVIDED
that, prior to or concurrently with such replacement (i) Company has paid to
the Lender giving such notice all amounts under subsections 2.6D, 2.7 (if
applicable) and 3.6 (if applicable) through such date of replacement, (ii)
Company or the applicable assignee has paid to Administrative Agent the
processing fee required to be paid by subsection 10.1B(i) and (iii) all of
the requirements for such assignment contained in subsection 10.1B,
including, without limitation, the consent of Agents (if required) and the
receipt by Administrative Agent of an executed Assignment Agreement and other
supporting documents, have been fulfilled.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Working
Capital Lenders make Working Capital Loans pursuant to subsection 2.1A(iii) and
that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv),
Company may request, in accordance with the provisions of this subsection 3.1,
from time to time during the period from the Closing Date to but excluding the
Working Capital Loan Commitment Termination Date, that Issuing Lender issue
Letters of Credit for the account of Company or any of its Subsidiaries
(provided that Company shall be deemed to be the account party hereunder and
shall be fully liable under this Section 3 with respect to all Letters of Credit
issued for the account of its Subsidiaries) for the purposes specified in the
definitions of Standby Letters of Credit and Trade Letters of Credit. Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, Issuing Lender
shall, subject to subsection 3.1B(ii), issue such Letters of Credit in
accordance with the provisions of this subsection 3.1; PROVIDED that Company
shall not request that Issuing Lender issue (and Issuing Lender shall not
issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Working Capital Loan Commitments would
exceed the Working Capital Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $5,000,000;
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(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) the Working Capital Loan Commitment
Termination Date and (b) the date that is one year from the date of
issuance of such Standby Letter of Credit; PROVIDED that the immediately
preceding clause (b) shall not prevent Company from requesting and any
Issuing Lender from agreeing that a Standby Letter of Credit will
automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend for
any such additional period (such Issuing Lender hereby agreeing that it
shall only elect not to extend such Standby Letter of Credit if, but only
if, it has knowledge that an Event of Default has occurred and is
continuing); or
(iv) any Letter of Credit denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company desires the issuance
of a Letter of Credit, it shall deliver to Administrative Agent a Notice
of Issuance of Letter of Credit substantially in the form of EXHIBIT III
annexed hereto no later than 11:00 A.M. (Chicago time) at least three
Business Days, or such shorter period as may be agreed to by the Issuing
Lender in any particular instance, in advance of the proposed date of
issuance. The Notice of Issuance of Letter of Credit shall specify
(a) the proposed date of issuance (which shall be a Business Day), (b)
the face amount of the Letter of Credit, (c) the expiration date of the
Letter of Credit, (d) the name and address of the beneficiary, and
(e) either the verbatim text of the proposed Letter of Credit or the
proposed terms and conditions thereof, including a precise description of
any documents to be presented by the beneficiary which, if presented by
the beneficiary prior to the expiration date of the Letter of Credit,
would require the Issuing Lender to make payment under the Letter of
Credit; PROVIDED that the Issuing Lender, in its reasonable discretion,
may require changes in the text of the proposed Letter of Credit or any
such documents; and PROVIDED, FURTHER that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on the
same business day (under the laws of the jurisdiction in which the office
of the Issuing Lender to which such draft is required to be presented is
located) that such draft is presented if such presentation is made after
10:00 A.M. in the time zone of such office of the Issuing Lender) on such
business day.
Company shall notify the applicable Issuing Lender (and Administrative
Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of Credit as
being true and correct on the proposed date of issuance is not true and correct
as of the proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have re-certified,
as of the date of such issuance, as to the matters to which Company is required
to certify in the applicable Notice of Issuance of Letter of Credit as being
true and correct on the proposed date of issuance.
(ii) If Administrative Agent in its capacity as Issuing Lender
determines that the issuance of such Letter of Credit would violate
applicable law or Administrative Agent's internal policies relating to
Letters of Credit, Administrative Agent shall not be obligated to issue
such Letter of Credit, and Company may request any other Working
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Capital Lender to issue the Letter of Credit. If such Working Capital
Lender agrees to issue such Letter of Credit, such Working Capital Lender
shall be the Issuing Lender of such Letter of Credit.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.5, the applicable Issuing Lender shall issue the requested
Letter of Credit in accordance with the such Issuing Lender's standard
operating procedures.
(iv) NOTIFICATION TO WORKING CAPITAL LENDERS. Upon the issuance
of any Letter of Credit the applicable Issuing Lender shall promptly
notify Administrative Agent of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit. Promptly after receipt
of such notice (or, if Administrative Agent is the Issuing Lender, upon
issuance of such Letter of Credit), Administrative Agent shall notify
each Working Capital Lender of the amount of such Lender's respective
participation in such Letter of Credit, determined in accordance with
subsection 3.1B(vi).
(v) REPORTS TO WORKING CAPITAL LENDERS. Within 15 days after
the end of each calendar quarter ending after the Closing Date, so long
as any Letter of Credit shall have been outstanding during such calendar
quarter, each Issuing Lender shall deliver to Administrative Agent a
report setting forth for such calendar quarter the daily aggregate amount
available to be drawn under the Letters of Credit issued by such Issuing
Lender that were outstanding during such calendar quarter.
Administrative Agent will promptly send copies of such reports to the
Working Capital Lenders.
(vi) WORKING CAPITAL LENDERS' PURCHASE OF PARTICIPATIONS IN
LETTERS OF CREDIT. Immediately upon the issuance of each Letter of
Credit, each Working Capital Lender shall be deemed to, and hereby agrees
to, have irrevocably purchased from the Issuing Lender a participation in
such Letter of Credit and any drawings honored thereunder in an amount
equal to such Working Capital Lender's Pro Rata Share of the maximum
amount which is or at any time may become available to be drawn
thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) (a) a fronting fee, payable directly to the applicable
Issuing Lender for its own account, equal to 0.125% per annum of the
daily amount available to be drawn under such Letter of Credit and (b) a
letter of credit fee, payable to Administrative Agent for the account of
Working Capital Lenders (based upon their respective Pro Rata Shares),
equal to (x) (1) in the case of Standby Letters of Credit, the applicable
Eurodollar Rate Margin set forth in subsection 2.2A hereof for Working
Capital Loans which are Eurodollar Rate Loans and (2) in the case of
Trade Letters of Credit, 1.25%, in each case MULTIPLIED BY (y) the daily
amount available from time to time to be drawn under such Letter of
Credit, each such fronting fee or letter of credit fee to be payable in
arrears on and to (but
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excluding) each Quarterly Date and computed on the basis of a 360-day
year for the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause (i) above), documentary and
processing charges payable directly to the applicable Issuing Lender for
its own account in accordance with such Issuing Lender's standard
schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be or as otherwise agreed
upon between Company and such Issuing Lender.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, the daily amount available to be drawn under any Letter of Credit shall be
determined as of the close of business on any date of determination. Promptly
upon receipt by Administrative Agent of any amount described in clause (i)(b) of
this subsection 3.2, Administrative Agent shall distribute to each Working
Capital Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT.
In the event an Issuing Lender has determined to honor a drawing under a Letter
of Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent of the date payment thereunder shall be made (the
"Reimbursement Date"), and Company shall reimburse such Issuing Lender on the
Reimbursement Date in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and such Issuing Lender prior to 11:00 A.M.
(Chicago time) on the Reimbursement Date that Company intends to reimburse such
Issuing Lender for the amount of such honored drawing with funds other than the
proceeds of Working Capital Loans, Company shall be deemed to have given a
timely Notice of Borrowing to Administrative Agent requesting Lenders to make
Working Capital Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing and (ii) subject
to satisfaction or waiver of the conditions specified in subsection 4.4, Working
Capital Lenders shall, on the Reimbursement Date, make Working Capital Loans
that are Base Rate Loans in the amount of such honored drawing, the proceeds of
which shall be applied directly by Administrative Agent to reimburse such
Issuing Lender for the amount of such honored drawing; and PROVIDED, FURTHER
that if for any reason proceeds of Working Capital Loans are not received by
such Issuing Lender on the Reimbursement Date in an amount equal to the amount
of such honored drawing, Company shall reimburse such Issuing Lender, on demand,
but no earlier than one Business Day following the Reimbursement Date, in an
amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Working Capital Loans, if
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any, which are so received. Nothing in this subsection 3.3B shall be deemed
to relieve any Working Capital Lender from its obligation to make Working
Capital Loans on the terms and conditions set forth in this Agreement, and
Company shall retain any and all rights it may have against any Working
Capital Lender resulting from the failure of such Lender to make such Working
Capital Loans under this subsection 3.3B.
C. PAYMENT BY WORKING CAPITAL LENDERS OF UNREIMBURSED AMOUNTS PAID
UNDER LETTERS OF CREDIT.
(i) PAYMENT BY WORKING CAPITAL LENDERS. In the event that
Company shall fail for any reason to reimburse any Issuing Lender as
provided in subsection 3.3B in an amount equal to the amount of any
drawing honored by such Issuing Lender under a Letter of Credit issued by
it, such Issuing Lender shall promptly notify each other Working Capital
Lender of the unreimbursed amount of such honored drawing and of such
other Working Capital Lender's respective participation therein based on
such Working Capital Lender's Pro Rata Share. Each Working Capital
Lender shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 11:00
A.M. (Chicago time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located)
after the date notified by such Issuing Lender. In the event that any
Working Capital Lender fails to make available to such Issuing Lender on
such business day the amount of such Working Capital Lender's
participation in such Letter of Credit as provided in this subsection
3.3C, such Issuing Lender shall be entitled to recover such amount on
demand from such Working Capital Lender together with interest thereon at
the Federal Funds Effective Rate for three Business Days and thereafter
at the Base Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of any Working Capital Lender to recover from any
Issuing Lender any amounts made available by such Working Capital Lender
to such Issuing Lender pursuant to this subsection 3.3C in the event that
it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which payment was made by such Working
Capital Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) DISTRIBUTION TO WORKING CAPITAL LENDERS OF REIMBURSEMENTS
RECEIVED FROM COMPANY. In the event any Issuing Lender shall have been
reimbursed by other Working Capital Lenders pursuant to subsection
3.3C(i) for all or any portion of any drawing honored by such Issuing
Lender under a Letter of Credit issued by it, such Issuing Lender shall
distribute to each other Working Capital Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Working Capital Lender's Pro Rata Share of all
payments subsequently received by such Issuing Lender from Company in
reimbursement of such honored drawing when such payments are received.
Any such distribution shall be made to a Working Capital Lender at its
primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Working Capital Lender may
request.
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D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY COMPANY. Company agrees to pay to
each Issuing Lender, with respect to drawings honored under any Letters
of Credit issued by it, interest on the amount paid by such Issuing
Lender in respect of each such honored drawing from the date such drawing
is honored to but excluding the date such amount is reimbursed by Company
(including any such reimbursement out of the proceeds of Working Capital
Loans pursuant to subsection 3.3B) at a rate equal to (a) for the period
from the date such drawing is honored to but excluding the Business Day
following the Reimbursement Date, the rate then in effect under this
Agreement with respect to Working Capital Loans that are Base Rate Loans
and (b) thereafter, a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement with respect to Working
Capital Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be payable on demand or, if no demand is
made, on the date on which the related drawing under a Letter of Credit
is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing honored under a
Letter of Credit issued by it, (a) such Issuing Lender shall distribute
to each other Working Capital Lender, out of the interest received by
such Issuing Lender in respect of the period from the date such drawing
is honored to but excluding the date on which such Issuing Lender is
reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Working Capital Loans pursuant to
subsection 3.3B), the amount that such other Working Capital Lender would
have been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such
period pursuant to subsection 3.2 if no drawing had been honored under
such Letter of Credit, and (b) in the event such Issuing Lender shall
have been reimbursed by other Working Capital Lenders pursuant to
subsection 3.3C(i) for all or any portion of such honored drawing, such
Issuing Lender shall distribute to each other Working Capital Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such honored drawing such other Working Capital Lender's Pro
Rata Share of any interest received by such Issuing Lender in respect of
that portion of such honored drawing so reimbursed by other Working
Capital Lenders for the period from the date on which such Issuing Lender
was so reimbursed by other Working Capital Lenders to but excluding the
date on which such portion of such honored drawing is reimbursed by
Company. Any such distribution shall be made to a Working Capital Lender
at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Working Capital
Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and the obligations of
Working Capital Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall, to the fullest extent
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permitted under applicable law, be paid strictly in accordance with the terms
of this Agreement under all circumstances, including any of the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Working Capital Lender may have at any time against
a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or other
Lender or any other Person or, in the case of a Lender, against Company,
whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between Company or one of its Subsidiaries and the beneficiary for which
any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a draft or other document which does
not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question.
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel) which such Issuing
Lender may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit by such Issuing Lender, other than
as a result of (a) the gross negligence or willful misconduct of such Issuing
Lender as determined by a final judgment of a court of competent jurisdiction
or (b) subject to the following clause (ii), the wrongful dishonor by such
Issuing
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Lender of a proper demand for payment made under any Letter of Credit
issued by it or (ii) the failure of such Issuing Lender to honor a drawing
under any such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any
Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, such Issuing Lender shall not be responsible for (except to
the extent of its gross negligence or willful misconduct): (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender or, subject to subsection 3.4, the
failure of such Issuing Lender to make payment upon the proper presentation to
it of documents strictly complying with the terms of any Letter of Credit.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Working Capital Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the
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introduction of any new law, treaty or governmental rule, regulation or
order), or any determination of a court or governmental authority, in each
case that becomes effective after the date hereof (in the case of each Lender
listed on the signature pages hereof and in the case of any other Lender if
such change shall have affected a class of Lenders generally) or after the
date of the Assignment Agreement pursuant to which such Lender became a
Lender (in the case of any other Lender if such change shall not have
affected a class of Lenders generally), or compliance by any Issuing Lender
or Working Capital Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Working Capital Lender;
or
(ii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Issuing Lender or Working Capital Lender
(or its applicable lending or letter of credit office) regarding this
Section 3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Working Capital Lender of agreeing to issue, issuing or maintaining
any Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Working Capital Lender (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, Company shall pay to
such Issuing Lender or Working Capital Lender, within 15 days after receipt of
the statement referred to in the next sentence, such additional amount or
amounts as may be necessary to compensate such Issuing Lender or Working Capital
Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Working Capital Lender shall
deliver to Company a written statement, setting forth in reasonable detail the
basis for calculating the additional amounts owed to such Issuing Lender or
Working Capital Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the following
conditions:
4.1 CONDITIONS TO INITIAL LOANS.
The obligations of Lenders to make the initial Loans to be made on
the Closing Date are, in addition to the conditions precedent specified in
subsection 4.4, subject to prior or concurrent satisfaction of the following
conditions:
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A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company
shall, and shall cause Parent and Acquisition Co. to, deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender) the following with respect to Company or
such Loan Party, as the case may be, each, unless otherwise noted, dated the
Closing Date:
(i) Certified copies of the Certificate or Articles of
Incorporation of such Person, together with a good standing certificate
from the Secretary of State of its jurisdiction of incorporation and each
other state in which such Person does a material amount of business and
is qualified as a foreign corporation to do business and, to the extent
applicable and generally available, a certificate or other evidence of
good standing as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such jurisdictions, each
dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the
Closing Date by an Authorized Officer of such Person or such Person's
corporate secretary or assistant secretary;
(iii) Resolutions of the Board of Directors of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents and the Related Agreements to which it is a party, and the
consummation of the transactions contemplated by the foregoing, certified
as of the Closing Date by an Authorized Officer of such Person or such
Person's corporate secretary or assistant secretary as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates with respect to each
Authorized Officer of such Person executing any Loan Document or
authorized to execute any notice, request or other document that may be
delivered pursuant thereto;
(v) Executed originals of the Credit Agreement, any Notes
requested by any Lender at least one Business Day prior to the Closing
Date, the Parent Guaranty, the Parent Pledge Agreement, the Finance Co.
Pledge Agreement, the Acquisition Co. Guaranty, the Collateral Account
Agreement and the Investment Account Agreement; and
(vi) Such other documents as Agents may reasonably request.
B. PARENT CAPITALIZATION. Parent shall have received gross proceeds
of not less than $65,000,000 from the sales of its common stock to DLJMB and its
Subsidiaries and not less than $34,000,000 in gross proceeds from the sale of
the Parent P-I-K Securities and Parent shall have contributed all such proceeds
to Finance Co. as common equity.
C. SUBORDINATED DEBT; CAPITAL CONTRIBUTIONS. Finance Co. shall have
received gross proceeds of not less than $100,000,000 from the sale of the
Senior Subordinated Bridge Notes or the Senior Subordinated Notes.
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Finance Co. shall have contributed a portion of the proceeds received
from Parent from the issuance and the sale of its common stock and the Parent
PIK Securities, and the proceeds from the issuance and sale of the Senior
Subordinated Bridge Notes or the Senior Subordinated Notes, as the case may be,
together with the proceeds of the Term Loans made on the Closing Date, to
Acquisition Co. and shall have made a loan to DAH with the balance of such
proceeds, other than proceeds of Tranche B Term Loans deposited into the
Investment Accounts, if any, and proceeds applied to pay transaction costs on
the Closing Date, such loan to be evidenced by the Intercompany Notes which
shall be pledged by Company to Administrative Agent pursuant to the Finance Co.
Pledge Agreement), to be applied by DAH to repay in full the Existing DAH Debt
(together with accrued interest and fees thereon and expenses incurred in
connection therewith). To the extent the proceeds of the Tranche B Term Loans
are not so utilized on the Closing Date, the excess proceeds shall be deposited
by Company into the Investment Accounts pursuant to the Investment Account
Agreement and invested in Cash Equivalents specified in the Investment Account
Agreement as directed by Company until the Merger Date.
D. TENDER OFFER MATTERS.
(i) TENDER OFFER MATERIALS. Agents shall have received copies
of all Tender Offer Materials and other documents in connection therewith
filed with the Securities and Exchange Commission and the Tender Offer
Materials shall be reasonably satisfactory in form and substance to
Agents and Requisite Lenders (it being understood that the Tender Offer
Materials as in effect on August 28, 1998 are so satisfactory).
(ii) MERGER AGREEMENT IN FULL FORCE AND EFFECT. Agents shall
have received copies of the Merger Agreement and the Merger Agreement
shall be in full force and effect and no provision thereof shall have
been modified or waived in any material respect (including, without
limitation, any increase in the price to be paid for the DAH Common Stock
to an amount in excess of $23.00 per share after the date hereof), in
each case without the consent of Agents and Requisite Lenders, such
consent not to be unreasonably withheld.
(iii) CONSUMMATION OF TENDER OFFER; MINIMUM SHARES.
Contemporaneously with the application of the proceeds of the initial
Loans to be made on the Closing Date, the Tender Offer shall have been
consummated in all material respects in accordance with the Tender Offer
Materials and no condition to the Tender Offer shall have been waived
without the consent of Agents. Not less than the Minimum Shares shall
have been tendered and accepted for payment in the Tender Offer; the
depository shall have delivered a certificate as to the number of shares
of DAH Common Stock being held by it that have been validly tendered and
not withdrawn as of the Closing Date and Company shall have delivered an
Officer's Certificate as to the total number of shares of DAH Common
Stock outstanding on a fully diluted basis as of the Closing Date.
(iv) USE OF OTHER FUNDS. Acquisition Co. shall have deposited
with the depository not less than the purchase price for the DAH Common
Stock to be purchased in the Tender Offer in immediately available funds
contemporaneously with the application of the Term Loans to be made on
the Closing Date.
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(v) OFFICER'S CERTIFICATES. Agents shall have an Officer's
Certificate from Company to the effect that, to the best knowledge of
Company, the representations and warranties of Acquisition Co. and DAH in
the Merger Agreement are true, correct and complete in all material
respects on and as of the date thereof. Agents shall have received
Officer's Certificates from Company to the effect that (a) the Merger
Agreement is in full force and effect and no provision thereof has been
modified or waived in any respect without the consent of Agents and
Requisite Lenders and (b) to the best knowledge of Company, each of the
parties to the Merger Agreement has complied with all agreements and
conditions contained in the Merger Agreement and any agreements or
documents referred to therein required to be performed or complied with
by each of them on or before the Closing Date and none of such Persons
are in default in their performance or compliance with any of the terms
or provisions thereof.
(vi) NO MATERIAL LITIGATION. Except as set forth on Schedule
5.6 there shall be no material litigation pending which challenges the
Tender Offer or the Merger in any respect.
(vii) REPAYMENT OF EXISTING DAH DEBT. Contemporaneously with the
application of the proceeds of the Loans to be made on the Closing Date,
(a) Company shall have made an advance to DAH in an amount sufficient to,
and DAH and its Subsidiaries shall have used the proceeds of such advance
to, repay in full all Existing DAH Debt and Transaction Costs payable by
DAH, (b) DAH and its Subsidiaries shall have terminated any commitments
to lend or make other extensions of credit under the Existing DAH Debt
and (c) DAH and its Subsidiaries shall have taken all action necessary to
terminate or release all Liens securing the Existing DAH Debt in
connection therewith, in each case on terms satisfactory to the Agents,
or arrangements satisfactory to the Agents for the making of such
advance, the repayment of such Existing DAH Debt, the termination of such
commitments and the release of such Liens shall have been made. There
shall be no existing Indebtedness of Company or its Subsidiaries
outstanding after consummation of the Closing Date transactions other
than Indebtedness permitted under subsection 7.1.
(viii) COMPLIANCE WITH LAWS. The making of the Loans requested on
the Closing Date shall not violate Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System.
E. RELATED AGREEMENTS. The Agents shall have received copies of the
Related Agreements in effect on the Closing Date. No provision of the Senior
Subordinated Bridge Note Agreement or the Senior Subordinated Note Indenture, as
the case may be, shall have been amended, modified or waived, from the most
recent version thereof provided to the Agents prior to their execution hereof,
in any respect determined by Agents to be material without the consent of Agents
and Requisite Lenders, except in accordance with subsection 7.15.
F. SECURITY INTERESTS IN SHARES OF FINANCE CO. AND ACQUISITION CO.
Agents shall have received evidence satisfactory to each of them that Parent and
Company shall have taken or caused to be taken all such actions, executed and
delivered or caused to be made all such filings and agreements, documents and
instruments, and made or caused to be made all such filings and
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recordings that may be necessary or, in the opinion of Agents, desirable in
order to create in favor of Administrative Agent, for the benefit of Lenders,
a valid and perfected First Priority security interest in all outstanding
shares of the Finance Co. and Acquisition Co. pursuant to the Parent Pledge
Agreement and the Finance Co. Pledge Agreement, respectively. Such actions
shall include the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to
Administrative Agent of accurate and complete schedules to all of the
applicable Collateral Documents; and
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Agents) representing
all capital stock pledged pursuant to the Parent Pledge Agreement and the
Finance Co. Pledge Agreement and (b) all promissory notes or other
instruments (duly endorsed, where appropriate, in a manner satisfactory
to Agents) evidencing any Collateral.
G. NO MATERIAL ADVERSE CHANGE. No material adverse change in the
financial condition, operations, assets, business, properties or prospects of
DAH and its Subsidiaries (excluding Avtech and its Subsidiaries), taken as a
whole, since December 31, 1997, and of Avtech and its Subsidiaries, taken as a
whole, since September 30, 1997, shall have occurred. There shall exist no
pending or threatened material litigation, proceedings or investigations which
could reasonably be expected to have a Material Adverse Effect.
X. XXXX SEARCHES. Delivery to Administrative Agent of the results of
a recent search of all effective UCC financing statements and fixture filings
and all judgment and tax lien filings which may have been made with respect to
any personal or mixed property of DAH and any of its Domestic Subsidiaries,
together with copies of all such filings disclosed by such search.
I. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders shall have received
(i) originally executed copies of one or more favorable written opinions of
Xxxxx Xxxx & Xxxxxxxx, special New York counsel for Loan Parties, and of Spolin
& Xxxxxxxxx, counsel for Loan Parties, dated as of the Closing Date in the form
of EXHIBIT X-1 and X-2 annexed hereto and as to such other matters as Agents
acting on behalf of Lenders may reasonably request.
J. OPINIONS OF SYNDICATION AGENT'S COUNSEL. Lenders shall have
received originally executed copies of one or more favorable written opinions of
O'Melveny & Xxxxx LLP, counsel to Syndication Agent, dated as of the Closing
Date, substantially in the form of EXHIBIT XI annexed hereto and as to such
other matters as Syndication Agent acting on behalf of Lenders may reasonably
request.
K. SOLVENCY CERTIFICATE. Company shall have delivered to Arranger
and Agents a Solvency Certificate dated the Closing Date.
L. REPRESENTATIONS AND WARRANTIES. Company shall have delivered to
Agents an Officer's Certificate, in form and substance reasonably satisfactory
to Agents, to the effect that the representations and warranties in Section 5
hereof are true, correct and complete in all
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material respects on and as of the Closing Date to the same extent as though
made on and as of that date (or, to the extent such representations and
warranties specifically relate to an earlier date, that such representations
and warranties were true, correct and complete in all material respects on
and as of such earlier date).
M. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with all transactions contemplated by the
Loan Documents and each of the foregoing shall be in full force and effect, in
each case other than those the failure to obtain or maintain which, either
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on all
transactions contemplated by the Loan Documents. No action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to any
of the foregoing shall be pending.
N. FINANCIAL STATEMENTS. Lenders shall have received (i) unaudited
financial statements of DAH and its Subsidiaries for the Fiscal Quarter ended
June 30, 1998, (ii) pro forma consolidated balance sheets of DAH and its
Subsidiaries as of June 30, 1998, giving pro forma effect to the Closing Date
transactions and the Merger and (iii) projected financial statements (including
balance sheets and statements of operations and cash flows) of DAH and its
Subsidiaries through and including December 31, 2005.
O. FEES. Company shall have paid to Agents, Lenders and Arranger the
fees payable on the Closing Date.
P. COMPLETION OF PROCEEDINGS. All documents executed or submitted
pursuant hereto by or on behalf of Company or any of its Subsidiaries or any
other Loan Parties shall be reasonably satisfactory in form and substance to
Agents and their counsel; Agents and their counsel shall have received all
information, approvals, opinions, documents or instruments that Agents or their
counsel shall have reasonably requested.
Each Lender hereby agrees that by its execution and delivery of
its signature page hereto and by the funding of its Loans to be made on the
Closing Date, such Lender approves of and consents to each of the matters set
forth in this subsection 4.1 which must be approved by, or satisfactory to,
Requisite Lenders, provided that, in the case of any agreement or document which
must be approved by, or which must be satisfactory to, Requisite Lenders, a copy
of such agreement or document shall have been delivered to such Lender on or
prior to the Closing Date.
4.2 CONDITIONS TO LOANS MADE ON MERGER DATE.
The obligations of Lenders to make the Loans to be made on the
Merger Date are, in addition to the conditions precedent specified in subsection
4.4 (to the extent applicable in the case of such Loans), subject to the prior
or concurrent satisfaction of the following conditions:
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A. DAH DOCUMENTS. On or before the Merger Date, Company shall, or
shall cause DAH and its Domestic Subsidiaries to, as the case may be, deliver to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender) the following, each, unless
otherwise noted, dated the Merger Date:
(i) Certified copies of the Certificate or Articles of
Incorporation of each of DAH and its Domestic Subsidiaries, together with
a good standing certificate from the Secretary of State of its
jurisdiction of incorporation and each other state in which DAH or any of
its Domestic Subsidiaries does a material amount of business and is
qualified as a foreign corporation to do business and, to the extent
applicable and generally available, a certificate or other evidence of
good standing as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such jurisdictions, each
dated a recent date prior to the Merger Date;
(ii) Copies of the Bylaws of each of DAH and its Domestic
Subsidiaries, certified as of the Merger Date by an Authorized Officer of
such Person or such Person's corporate secretary or an assistant
secretary;
(iii) Resolutions of the Board of Directors of DAH and its
Domestic Subsidiaries approving and authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and the
consummation of the transactions contemplated by the foregoing, each
certified as of the Merger Date by an Authorized Officer of such Person
or the corporate secretary or an assistant secretary of such Person as
being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers of
DAH and its Domestic Subsidiaries executing the Loan Documents to which
it is a party or authorized to execute any notice, request or other
document that may be delivered pursuant thereto;
(v) Originals of the DAH Pledge Agreement, the Security
Agreement, the Subsidiary Guaranty and the Subsidiary Pledge Agreements,
executed by Company and each of its Domestic Subsidiaries; and
(vi) Such other documents as Agent may reasonably request at
least one Business Day prior to the Merger Date.
B. SATISFACTION OF CONDITIONS IN SUBSECTION 4.1. Lenders shall have
made the initial Loans on the Closing Date.
C. CONSUMMATION OF MERGER.
(i) All conditions to the Merger set forth in the Merger
Agreement as in effect on the Merger Date shall have been satisfied or
the fulfillment of any such conditions shall have been waived with the
consent of Agents and Requisite Lenders;
(ii) the Merger shall have become effective in accordance with
the terms of the Merger Agreement and the Delaware General Corporation
Law;
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(iii) Administrative Agent shall have received satisfactory
evidence of the filing of the documents with the Secretary of State of
the State of Delaware effecting the Merger on the Merger Date;
(iv) the aggregate cash consideration for the shares of DAH
Common Stock to be acquired in any manner whatsoever in connection with
the Tender Offer and the Merger shall not exceed $182,100,000;
(v) Transaction Costs incurred as of the Merger Date (including
any such amounts incurred on or before the Closing Date) shall not exceed
$16,300,000;
(vi) Administrative Agent shall have received satisfactory
evidence that the Second Merger will occur immediately after the Merger
on the Merger Date; and
(vii) Administrative Agent shall have received an Officers'
Certificate of Company to the effect set forth in clauses (i)-(vi) above.
D. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the extent
not otherwise satisfied pursuant to subsection 4.1F, Administrative Agent shall
have received evidence satisfactory to each of them that Company and Subsidiary
Guarantors shall have taken or caused to be taken all such actions, executed and
delivered or caused to be executed and delivered all such agreements, documents
and instruments, and made or caused to be made all such filings and recordings
(other than the filing or recording of items described in clauses (iii), (iv)
and (v) below) that may be necessary or, in the opinion of Agents, desirable in
order to create in favor of Administrative Agent, for the benefit of Lenders, a
valid and (upon such filing and recording) perfected First Priority security
interest in the entire personal and mixed property Collateral. Such actions
shall include the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to
Administrative Agent of accurate and complete schedules to all of the
applicable Collateral Documents;
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Agents) representing
all capital stock pledged pursuant to the DAH Pledge Agreement and the
Subsidiary Pledge Agreements and (b) all promissory notes or other
instruments (duly endorsed, where appropriate, in a manner satisfactory
to Agents) evidencing any Collateral;
(iii) UCC FINANCING STATEMENTS AND FIXTURE FILINGS. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by Company or any Subsidiary Guarantor, as
applicable, with respect to all personal and mixed property Collateral of
such Loan Party, for filing in all jurisdictions as may be necessary or,
in the opinion of Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral
Documents; and
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(iv) OPINIONS OF LOCAL COUNSEL. Delivery to Agents of an
opinion of counsel (which counsel shall be reasonably satisfactory to
Agents) under the laws of the states of California, Washington, Arkansas
and Pennsylvania with respect to the creation and perfection of the
security interests in favor of Administrative Agent in such Collateral,
in each case in form and substance reasonably satisfactory to Agents
dated as of the Merger Date and setting forth substantially the matters
in the form of opinion annexed hereto as EXHIBIT XXV.
E. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their respective
counsel shall have received (i) originally executed copies of a written opinion
of Xxxxx Xxxx & Xxxxxxxx, special New York counsel for Loan Parties, and Spolin
& Xxxxxxxxx, counsel for Loan Parties, in form and substance reasonably
satisfactory to Agents and Lenders, dated as of the Merger Date and setting
forth substantially the matters in the opinions designated in EXHIBITS XXIV-1
and XXIV-2 annexed hereto.
F. COMPANY SHALL HAVE PAID TO AGENTS, LENDERS AND ARRANGER THE FEES
PAYABLE ON THE MERGER DATE.
4.3 CONDITIONS TO ACQUISITION LOANS.
The obligation of Acquisition Lenders to make Acquisition Loans on
each Funding Date are subject to the following further condition precedent that
Company delivers a Permitted Acquisition Compliance Certificate and is otherwise
in compliance subsection 7.7(vi).
4.4 CONDITIONS TO LOANS MADE ON EACH FUNDING DATE.
The obligations of Lenders to make Loans on each Funding Date
(other than, as to subsection B below, any Tranche A Term Loans made on the
Merger Date) are subject to the following further conditions precedent:
A. Administrative Agent shall have received, in accordance with the
provisions of subsection 2.1B, an executed Notice of Borrowing signed by an
Authorized Officer of Company.
B. AS OF THAT FUNDING DATE:
(i) The representations and warranties contained herein and in
the other Loan Documents (other than, at any Funding Date other than the
Closing Date, any such representations and warranties in subsection 5.2,
to the extent they relate to the Related Agreements) shall be true,
correct and complete in all material respects on and as of that Funding
Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true, correct and complete in all material respects on and as
of such earlier date; and
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such Notice
of Borrowing that would constitute an Event of Default or a Potential
Event of Default.
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4.5 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), a Notice of Issuance of Letter of Credit signed by an
Authorized Officer of Company, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.4B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and the Agents to enter into this
Agreement and to make the Loans, to induce Issuing Lenders to issue Letters of
Credit and to induce other Lenders to purchase participations therein, Company
represents and warrants to each Lender and the Agents, on the Closing Date, on
each Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation or
partnership duly organized, validly existing and, to the extent applicable, in
good standing under the laws of its jurisdiction of incorporation or
organization as specified in Schedule 5.1 annexed hereto except to the extent
that the failure to be in good standing has not had and will not have a Material
Adverse Effect. Each Loan Party has all requisite corporate or partnership
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents and the Related Agreements to which it is a party and to carry out the
transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had and will not have a Material Adverse Effect.
C. SUBSIDIARIES. All of the Subsidiaries of Company as of the
Closing Date, after giving effect to the consummation of the Tender Offer and
pro forma effect to the consummation of the Merger and the Second Merger, are
identified in SCHEDULE 5.1 annexed hereto, as said SCHEDULE 5.1 may be
supplemented from time to time pursuant to the provisions of subsection
6.1(xii). Each of the Subsidiaries of Company identified in SCHEDULE 5.1 is a
corporation (or, in the case
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of Tri-Star Technologies, a general partnership) duly organized, validly
existing and in good standing under the laws of its respective jurisdiction
of incorporation or organization set forth therein, has all requisite
corporate power and authority to own and operate its properties and to carry
on its business as now conducted and as proposed to be conducted, and is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, in each case except where failure to be so qualified or in good
standing or a lack of such corporate power and authority has not had and will
not have a Material Adverse Effect. Schedule 5.1 correctly sets forth the
ownership interest of Company and each of its Subsidiaries as of the Closing
Date, after giving effect to the consummation of the Tender Offer and pro
forma effect to the consummation of the Merger and the Second Merger, in each
of the Subsidiaries of Company identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the Related Agreements have been duly
authorized by all necessary actions on the part of each Loan Party that is a
party thereto.
B. NO CONFLICT. The execution, delivery and performance by Loan
Parties of the Loan Documents and the Related Agreements and the consummation of
the transactions contemplated by the Loan Documents and the Related Agreements
do not and will not (i) violate any provision of (x) any law or any governmental
rule or regulation applicable to Company or any of its Subsidiaries where such
violations in the aggregate have had or could reasonably be expected to have a
Material Adverse Effect, (y) the Certificate or the Articles of Incorporation or
Bylaws of Company or any of Company's Subsidiaries or (z) any order, judgment or
decree of any court or other agency of government binding on Company or any of
Company's Subsidiaries where such violations in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect, (ii) conflict with,
result in a breach of or constitute a default under any Contractual Obligation
of Company or any of its Subsidiaries where such conflict, breach or default in
the aggregate have had or could reasonably be expected to have a Material
Adverse Effect, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of Company's
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of or consent of any Person under any Contractual Obligation of Company
or any of Company's Subsidiaries, except for such approvals or consents which
will be obtained on or before the Merger Date or such approvals or consents the
failure of which to obtain has not had and could not reasonably be expected to
have a Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Loan Parties of the Loan Documents and the Related Agreements and the
consummation of the transactions contemplated by the Loan Documents and the
Related Agreements do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body other than any such
registrations, consents, approvals, notices or other actions (x) that have been
made, obtained or taken on or prior to the date on which such registrations,
consents, approvals, notices or other actions are required to be made, obtained
or taken, as the case may be, and are in full force and
89
effect or (y) the failure of which to make, obtain or take has not had and
could not reasonably be expected to have a Material Adverse Effect.
D. BINDING OBLIGATION. Each of the Loan Documents and the Related
Agreements has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request,
the following financial statements and information: (i) the audited
consolidated balance sheets of DAH and its Subsidiaries as at December 31, 1997
and 1996, and the related consolidated statements of income, stockholders'
equity and cash flows of DAH and its Subsidiaries for the Fiscal Years ended
December 31, 1997, 1996 and 1995, (ii) the unaudited consolidated balance sheet
of DAH and its Subsidiaries as of June 30, 1998 and the related unaudited
consolidated statements of income, stockholders' equity and cash flows of DAH
and its Subsidiaries for the six months then ended and (iii) the audited
consolidated balance sheets of Avtech Corporation and its Subsidiaries as at
September 30, 1997 and 1996, and the related consolidated statements of income,
stockholders' equity and cash flows of Avtech Corporation and its Subsidiaries
for the fiscal years ended September 30, 1997, 1996, and 1995, and (iv) the
unaudited consolidated balance sheet of Avtech Corporation and its Subsidiaries
as of June 25, 1998 and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of Avtech Corporation and its Subsidiaries
for the period since October 1, 1997 then ended. All such statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position (on a consolidated basis) of the entities described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to no footnote disclosure and changes resulting
from normal year-end adjustments.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1997, no event or change has occurred which
constitutes, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment except as permitted by subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY.
A. TITLE TO PROPERTIES; LIENS. Except to the extent that failure to
do so has not had and could not reasonably be expected to have a Material
Adverse Effect, Company and its Subsidiaries have (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal
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property), or (iii) good title to (in the case of all other personal
property), all of their respective properties and assets. Except as
permitted by this Agreement, all such properties and assets are free and
clear of Liens.
B. REAL PROPERTY. As of the Closing Date, SCHEDULE 5.5 annexed
hereto contains a true, accurate and complete list of (i) all real property
owned by Company or any Domestic Subsidiary and (ii) all material leases,
subleases or assignments of leases (together with all amendments, modifications,
supplements, renewals or extensions of any thereof) affecting each Real Property
Asset of any Loan Party, regardless of whether such Loan Party is the landlord
or tenant (whether directly or as an assignee or successor in interest) under
such lease, sublease or assignment.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect or could reasonably be expected to prevent or unduly
delay the Merger or the consummation of the Tender Offer. Neither Company nor
any of its Subsidiaries is in violation of any applicable laws (including
Environmental Laws) which violations, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all tax returns
and reports of Company and its Subsidiaries required to be filed by any of them
have been timely filed, and all taxes shown on such tax returns to be due and
payable and all assessments, fees and other governmental charges upon Company
and its Subsidiaries and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid when due and
payable, except any such taxes or charges which are being contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP have been established.
5.8 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940.
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5.9 SECURITIES ACTIVITIES.
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
5.10 EMPLOYEE BENEFIT PLANS.
A. Company, each of its Subsidiaries and each of their respective
ERISA Affiliates are in substantial compliance with all applicable material
provisions and requirements of ERISA and the regulations and published
interpretations thereunder with respect to each Employee Benefit Plan, and have
performed all their obligations under each Employee Benefit Plan except to the
extent that any such noncompliance or nonperformance could not reasonably be
expected to have a Material Adverse Effect. Each Employee Benefit Plan which is
intended to qualify under Section 401(a) of the Internal Revenue Code is so
qualified except as could not reasonably be expected to have a Material Adverse
Effect.
B. No ERISA Event has occurred or is reasonably expected to occur
that could reasonably be expected to result in a Material Adverse Effect.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates, except as could not reasonably be expected to result in a Material
Adverse Effect.
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities) could not reasonably be expected to have a Material
Adverse Effect
E. As of the most recent valuation date for each Multiemployer Plan
for which the actuarial report is available, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA could not reasonably be expected to have a Material Adverse Effect.
5.11 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.11 annexed hereto and except as
to matters that, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect:
(i) neither Company nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any outstanding
written order, consent decree or
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settlement agreement with any Person relating to (a) any current
Environmental Law, (b) any Environmental Claim, or (c) any Hazardous
Materials Activity;
(ii) neither Company nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9604) or any comparable state law;
(iii) there are and, to Company's knowledge, have been no
conditions, occurrences, or Hazardous Materials Activities at the
Facilities or otherwise relating to the operation of the Company or any
of its Subsidiaries which could reasonably be expected to form the basis
of an Environmental Claim against Company or any of its Subsidiaries;
(iv) neither Company's nor its Subsidiaries' operations involve
the transportation, storage or disposal of Hazardous Materials so as to
require a permit for such operations under RCRA Part B (42 U.S.C. Section
6925 and 40 C.F.R. 270.1 et seq.) or involve transporting hazardous
materials generated by a third party for disposal; and
(v) compliance with all current requirements pursuant to or
under Environmental Laws will not, individually or in the aggregate, have
a reasonable possibility of giving rise to a Material Adverse Effect.
5.12 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
affecting Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.13 SOLVENCY.
On the Closing Date and on the Merger Date, after giving effect to
the consummation of the Tender Offer and the Mergers, respectively, each Loan
Party is Solvent.
5.14 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and
delivery of the Collateral Documents by Loan Parties, together with actions
taken pursuant to subsections 4.1F, 4.2F, 4.2G, 6.8 and 6.9 are effective or, in
the case of subsections 4.2F and 4.2G as of the Merger Date, will be effective,
or in the case of subsections 6.8 and 6.9 at the time of the taking of such
actions, will be effective, once taken, to create in favor of Administrative
Agent for the benefit of Lenders, as security for the respective Secured
Obligations (as defined in the applicable Collateral Document in respect of any
Collateral), a valid and perfected First Priority Lien on the Collateral covered
thereby.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by any Loan Party
of the Liens purported to be created in favor of Administrative Agent pursuant
to any of the Collateral Documents or (ii) the exercise by
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Administrative Agent of any rights or remedies in respect of any Collateral
(whether specifically granted or created pursuant to any of the Collateral
Documents or created or provided for by applicable law), except for filings
or recordings contemplated by subsection 5.14A and except as may be required,
in connection with the disposition of any Pledged Collateral, by laws
generally affecting the offering and sale of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. On and after the Closing Date,
except (a) such as may have been filed in favor of Administrative Agent or with
respect to Liens permitted by this Agreement or (b) precautionary filings in
respect of operating leases, (i) no effective UCC financing statement, fixture
filing or other instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office and (ii) no effective
filing covering all or any part of the IP Collateral is on file in the PTO, in
each case other than filings in respect of which Administrative Agent shall have
received appropriate termination statements or releases.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant
to the Collateral Documents does not violate Regulation U or X of the Board of
Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to all Collateral) is
accurate and complete in all material respects.
5.15 DISCLOSURE.
A. LOAN DOCUMENTS. No representation or warranty of any Loan
Party contained in any Loan Document or in any other document, certificate or
written statement furnished to Lenders by or on behalf of Company or any of
its Subsidiaries for use in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state a material fact (known to Company, in the case of any document not
furnished by it) necessary in order to make the statements contained herein
or therein not materially misleading in light of the circumstances in which
the same were made. Any term or provision of this Section to the contrary
notwithstanding, insofar as any of the representations and warranties
described above includes assumptions, estimates, projections or opinions, no
representation or warranty is made herein with respect thereto; PROVIDED,
HOWEVER, that to the extent any such assumptions, estimates, projections or
opinions are based on factual matters, Company has reviewed such factual
matters and nothing has come to its attention in the context of such review
which would lead it to believe that such factual matters were not or are not
true and correct in all material respects or that such factual matters omit
to state any material fact necessary to make such assumptions, estimates,
projections or opinions not misleading in any material respect.
B. TENDER OFFER MATERIALS. The Tender Offer Materials, taken as a
whole, do not contain any untrue statement of a material fact or omit to state
a material fact (known to Company or any of its Subsidiaries, in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made.
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5.16 YEAR 2000 COMPLIANCE.
Company has (i) initiated a review and assessment of its and
its Subsidiaries' business and operations (including those affected by
suppliers and vendors) that Company believes could be adversely affected by
the "Year 2000 Problem" (that is, the risk that computer applications used by
Company or Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan
substantially in accordance with that timetable. Company believes that its
own computer applications that are material to its or its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant") except to the extent that a failure to do so
could not reasonably be expected to have Material Adverse Effect.
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all
of the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements
in conformity with GAAP. Company will deliver to Agents and Lenders:
(i) QUARTERLY FINANCIALS: as soon as available and in any
event within 60 days after the end of each Fiscal Quarter, the
consolidated balance sheet of Company and its Subsidiaries as at the end
of such Fiscal Quarter and the related consolidated statements of income
and stockholders equity of Company and its Subsidiaries for such Fiscal
Quarter and statements of income, stockholders equity and cash flows for
the period from the beginning of the then current Fiscal Year to the end
of such Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous
Fiscal Year (it being understood that the foregoing requirement may be
satisfied by delivery of the Company's report to the Securities and
Exchange Commission on Form 10-Q, if any), together with, if any pro
forma financial information has been used in connection with determining
compliance with this Agreement, a reconciliation of such pro forma
financial information with the financial information contained in such
financial statements, all in reasonable detail and certified by the
president, chief executive officer, treasurer, or chief financial officer
of Company that they fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash
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flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments;
(ii) YEAR-END FINANCIALS: as soon as available and in any event
within 105 days after the end of each Fiscal Year, (a) the consolidated
balance sheet of Company and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income,
stockholders equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year (it being understood
that the foregoing requirement may be satisfied by delivery of the
Company's report to the Securities and Exchange Commission on Form 10-K,
if any) together with, if any pro forma financial information has been
used in connection with determining compliance with this Agreement, a
reconciliation of such pro forma financial information with the financial
information contained in such financial statements, all in reasonable
detail and reported on by one of the Big Five accounting firms or other
independent certified public accountants of recognized national standing
selected by Company and satisfactory to Agents, which report shall state
(without Impermissible Qualification) that such consolidated financial
statements fairly present, in all material respects, the consolidated
financial position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for
the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) OFFICER'S AND COMPLIANCE CERTIFICATES: together with each
delivery of financial statements pursuant to subdivisions (i) and (ii)
above, (a) an Officer's Certificate of Company stating that the signers
have reviewed the relevant terms of this Agreement and that no condition
or event that constitutes an Event of Default or Potential Event of
Default exists, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto
and (b) a Compliance Certificate executed by the president, chief
executive officer, treasurer, or chief financial officer of Company;
(iv) MARGIN DETERMINATION CERTIFICATE: together with each
delivery of financial statements pursuant to subdivisions (i) and (ii)
above, a Margin Determination Certificate demonstrating in reasonable
detail, and calculating in accordance with subsections 1.2(b) and 1.2(c),
the Consolidated Leverage Ratio on the last day of the accounting period
covered by such financial statements;
(v) ACCOUNTANTS' CERTIFICATION: together with each delivery
of consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (ii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the
terms of subsections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7 and 7.8 of this
Agreement as they relate to accounting matters, and (b) stating
whether, in connection with their audit examination, any condition or
event that constitutes an Event of Default or Potential Event of
Default
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has come to their attention and, if such a condition or event has come
to their attention, specifying the nature and period of existence
thereof; PROVIDED that such accountants shall not be liable by reason
of any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course
of their audit examination;
(vi) SEC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by Parent
or the Company to its security holders (other than DLJMB or Parent,
respectively), and (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Parent or any of its Subsidiaries with any
national securities exchange or with the Securities and Exchange
Commission;
(vii) EVENTS OF DEFAULT, ETC.: promptly and in any event within
seven (7) Business Days after the president, chief executive officer,
treasurer, assistant treasurer, controller, chief financial officer or
any other Authorized Officer of Company obtains knowledge of any
condition or event that constitutes an Event of Default or Potential
Event of Default, an Officer's Certificate specifying the nature and
period of existence of such Event of Default or Potential Event of
Default and what action Company has taken, is taking and proposes to take
with respect thereto;
(viii) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon the
president, chief executive officer, treasurer, assistant treasurer,
controller, chief financial officer or any other Authorized Officer of
Company obtaining knowledge of (X) the institution of, or non-frivolous
threat of, any action, suit, proceeding (whether administrative, judicial
or otherwise), governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries (collectively, "PROCEEDINGS") not previously
disclosed in writing by Company to Lenders or (Y) any material
development in any Proceeding that, in any case:
(1) has a reasonable possibility of giving rise to a
Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the transactions contemplated hereby;
written notice thereof and promptly after request by Agents such other
information as may be reasonably requested by Agents to enable Agents and
their respective counsel to evaluate any of such Proceedings;
(ix) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event that could
reasonably be expected to result in a Material Adverse Effect, a written
notice specifying the nature thereof, what action Company, any of its
Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or
97
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
(x) ERISA NOTICES: with reasonable promptness, copies of all
notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event that could reasonably be expected to result in a Material
Adverse Effect;
(xi) FINANCIAL PLANS: as soon as practicable and in any event
no later than 30 days after the beginning of each Fiscal Year, a
consolidated budget for such Fiscal Year, in the form prepared by Company
consistent with its past practices (the "FINANCIAL PLAN");
(xii) NEW SUBSIDIARIES: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Company and (b) all of the data required to be set forth in SCHEDULE 5.1
with respect to all Subsidiaries of Company (it being understood that
such written notice shall be deemed to supplement SCHEDULE 5.1 for all
purposes of this Agreement);
(xiii) UCC SEARCH REPORT: As promptly as practicable after the
date of delivery to Administrative Agent of any UCC financing statement
executed by any Loan Party pursuant to subsection 4.2D(iii) or 6.8A,
copies of completed UCC searches evidencing the proper filing, recording
and indexing of all such UCC financing statement and listing all other
effective financing statements that name such Loan Party as debtor,
together with copies of all such other financing statements not
previously delivered to Administrative Agent by or on behalf of Company
or such Loan Party;
(xiv) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by any Lender.
6.2 LEGAL EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and
will cause each of its Subsidiaries to, at all times preserve and keep in
full force and effect its legal existence and all rights and franchises
material to its business except where failure to keep in full force and
effect such rights and franchises could not reasonably be expected to have a
Material Adverse Effect; PROVIDED, HOWEVER that neither Company nor any of
its Subsidiaries shall be required to preserve the existence of any
Subsidiary if Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company and its
Subsidiaries, and that the loss thereof is not disadvantageous in any
material respect to Company or Lenders.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
Company will, and will cause each of its Subsidiaries to, pay
all material taxes, assessments and other governmental charges imposed upon
it or any of its properties or assets or
98
in respect of any of its income, businesses or franchises before any penalty
accrues thereon, and all material claims (including claims for labor,
services, materials and supplies) for sums that have become due and payable
and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; PROVIDED that no such charge or claim need be paid if it is
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor.
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Except to the extent that the
failure to do so would not reasonably be expected to have a Material Adverse
Effect, Company will, and will cause each of its Subsidiaries to, maintain or
cause to be maintained in good repair, working order and condition, ordinary
wear and tear excepted, all material properties used or useful in the
business of Company and its Subsidiaries (including all Intellectual
Property) and from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof unless Company determines in good
faith that the continued maintenance of any of its Properties is no longer
economically desirable.
B. INSURANCE. Company will maintain or cause to be maintained,
with financially sound and reputable insurers, such public liability
insurance, third party property damage insurance, business interruption
insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Company and its
Subsidiaries as may customarily be carried or maintained under similar
circumstances by corporations of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for corporations similarly situated in the
industry. Without limiting the generality of the foregoing, Company will
maintain or cause to be maintained (i) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve
System, and (ii) replacement value casualty insurance on the Collateral under
such policies of insurance, with such insurance companies, in such amounts,
with such deductibles, and covering such risks as are at all times
satisfactory to Agents in their commercially reasonable judgment. Each such
policy of insurance shall (a) name Administrative Agent for the benefit of
Lenders as an additional insured thereunder as its interests may appear and
(b) in the case of each casualty insurance policy, contain a loss payable
clause or endorsement, satisfactory in form and substance to Agents, that
names Administrative Agent for the benefit of Lenders as the loss payee
thereunder for any covered loss in excess of $250,000 and provides for at
least 30 days prior written notice to Agents of any modification or
cancellation of such policy.
C. EVIDENCE OF INSURANCE. Upon request of Administrative Agent,
Company shall deliver to Administrative Agent a certificate from Company's
insurance broker or other evidence satisfactory to it that all insurance
required to be maintained pursuant to subsection 6.4B is in full
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force and effect and that Administrative Agent on behalf of Lenders has been
named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4B.
6.5 INSPECTION RIGHTS.
Company shall, and shall cause each of its Subsidiaries to,
permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of Company or of any of its Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its
and their officers and, after notice to the Company and provision of an
opportunity to participate in such discussions, independent public
accountants, all upon reasonable notice and at such reasonable times and
intervals during normal business hours and as often as may reasonably be
requested, but, unless an Event of Default shall have occurred and be
continuing not more frequently than once in each Fiscal Year. Subject to
subsection 10.2, the cost and expenses of each such visit shall be borne by
the applicable Lender.
6.6 COMPLIANCE WITH LAWS, ETC.
A. GENERAL. Company shall comply, and shall cause each of its
Subsidiaries to comply, in all material respects, with the requirements of
all applicable laws, rules, regulations and orders of any governmental
authority (including all Environmental Laws), noncompliance with which could
reasonably be expected to cause, individually or in the aggregate, a Material
Adverse Effect.
B. ENVIRONMENTAL COVENANT.
The Company will and will cause each of its Subsidiaries to:
(i) Use and operate all of its Facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other Governmental Authorizations
relating to environmental matters in effect and remain in compliance
therewith, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws, in each case except where the failure to
comply with the terms of this clause would not reasonably be expected to
have a Material Adverse Effect;
(ii) Promptly notify the Agents and provide copies of all
written claims, complaints, notices or inquiries relating to the
condition of its Facilities or relating to compliance with Environmental
Laws which relate to environmental matters which would have, or would
reasonably be expected to have, a Material Adverse Effect, and promptly
cure and have dismissed with prejudice any material actions and
proceedings relating to compliance with Environmental Laws, except to the
extent being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP have
been set aside on its books; and
(iii) Provide such information and certificates which the Agents
may reasonably request from time to time to evidence compliance with this
SECTION 6.7.
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6.7 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS BY CERTAIN SUBSIDIARIES AND FUTURE SUBSIDIARIES; IP COLLATERAL.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS. In the event that any Person becomes a Subsidiary of
Company after the Merger Date (other than a Foreign Subsidiary and other than
a Domestic Subsidiary that is a Non-Wholly-Owned Subsidiary), Company will
promptly notify Administrative Agent of that fact and cause such Subsidiary
to execute and deliver to Administrative Agent a Subsidiary Pledge Agreement,
a counterpart of the Subsidiary Guaranty and an acknowledgement to the
Security Agreement and to take all such further actions and execute all such
further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.2D) as may be
necessary or, in the opinion of Agents, desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected First
Priority Lien on all of the personal and mixed property assets of such
Subsidiary described in the applicable forms of Collateral Documents;
PROVIDED that no such Subsidiary shall be required to pledge pursuant to a
Subsidiary Pledge Agreement more than 65% of the total combined voting power
of all classes of securities of any Foreign Subsidiary held by such
Subsidiary entitled to vote.
B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. Company
shall deliver to Administrative Agent, together with such Loan Documents, (i)
certified copies of such Subsidiary's Certificate or Articles of
Incorporation, together with a good standing certificate from the Secretary
of State of the jurisdiction of its incorporation and each other state in
which such Person is qualified as a foreign corporation to do business and,
to the extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from the
appropriate taxing authority of each of such jurisdictions, each to be dated
a recent date prior to their delivery to Administrative Agent, (ii) a copy of
such Subsidiary's Bylaws certified by its secretary or an assistant secretary
as of a recent date prior to their delivery to Administrative Agent, (iii) a
certificate executed by the secretary or an assistant secretary of such
Subsidiary as to (a) the fact that the attached resolutions of the Board of
Directors of such Subsidiary approving and authorizing the execution,
delivery and performance of such Loan Documents are in full force and effect
and have not been modified or amended and (b) the incumbency and signatures
of the officers of such Subsidiary executing such Loan Documents, and (iv) a
favorable opinion of counsel to such Subsidiary, in form and substance
satisfactory to Agents and their respective counsel, as to (a) the due
organization and good standing of such Subsidiary, (b) the due authorization,
execution and delivery by such Subsidiary of such Loan Documents, (c) the
enforceability of such Loan Documents against such Subsidiary, (d) such other
matters (including matters relating to the creation and perfection of Liens
in any Collateral pursuant to such Loan Documents) as Agents may reasonably
request, all of the foregoing to be satisfactory in form and substance to
Agents and their respective counsel.
C. IP COLLATERAL. If any Subsidiary (other than a Foreign Subsidiary
and Domestic Subsidiaries that are Non-Wholly-Owned Subsidiaries) becomes an
owner of any Intellectual Property after the Merger Date, Company shall cause
such Subsidiary to promptly execute and deliver to Administrative Agent an
acknowledgement to the Security Agreement and all cover sheets and executed
grants of trademark security interest, grants of patent security interest and
grants of copyright security interest and such other documents or instruments
required to be filed with the PTO and the CO as Administrative Agent shall deem
appropriate and take such further
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action and execute such further documents and instruments as may be
necessary, or in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and
perfected First Priority Lien on such Intellectual Property.
6.8 FUTURE LEASED PROPERTY AND FUTURE ACQUISITIONS OF REAL PROPERTY:
FUTURE ACQUISITION OF OTHER PROPERTY.
A. In connection with any Leasehold Property, Company shall, and
shall cause each of its Subsidiaries (other than Foreign Subsidiaries and
Domestic Subsidiaries that are Non-Wholly Owned Subsidiaries) to use its (and
their) commercially reasonable efforts (which shall not require the
expenditure of cash (other than the payment of the respective attorneys fees
of Company and the lessor) or the making of any material concessions under
the relevant lease) to deliver to Administrative Agent a waiver for the
benefit of Administrative Agent in form and substance reasonably satisfactory
to Administrative Agent executed by the lessor of any real property that is
to be leased by Company or such Subsidiary for a term in excess of one year
in any state which by statute grants such lessor a "landlord's" (or similar)
Lien which is superior to Administrative Agent's and which grants to
Administrative Agent a license to enter the leased property and remove any
and all personal property, if the value of such personal property of Company
or its Subsidiaries to be held at such leased property exceeds (or it is
anticipated that the value of such personal property will, at any point in
time during the term of such leasehold term, exceed) $2,000,000.
B. In the event that Company or any of its Subsidiaries (other
than Foreign Subsidiaries or Domestic Subsidiaries that are Non-Wholly-Owned
Subsidiaries) shall acquire any real property having a value as determined in
good faith by Administrative Agent in excess of $2,000,000 (or in the case of
leased property, in the event that Company is able to deliver the waivers and
consents described in subsection 6.8C in connection with the leases described
therein), Company or the applicable Subsidiary shall, promptly after such
acquisition or consent, execute a Mortgage and provide Administrative Agent
with (i) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of Administrative Agent, desirable
effectively to create a valid, perfected, First Priority Lien, subject to the
Liens permitted by subsection 7.2, against the property purported to be
covered thereby, (ii) mortgagee's title insurance policy or policies in favor
of Administrative Agent and the Lenders in amounts and in form and substance
and issued by insurers, reasonably satisfactory to the Agents, with respect
to the property purported to be covered by such Mortgage, insuring that title
to such property is indefeasible and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear of all defects
and encumbrances other than as permitted by Section 7.2 or as approved by the
Agents, and such policies shall also include, to the extent available, a
revolving credit endorsement and such other endorsements as the Agents shall
reasonably request and shall be accompanied by evidence of the payment in
full of all premiums thereon, and (iii) such other approvals, opinions, or
documents as the Agents may reasonably request.
C. As soon as reasonably practical after the consummation of the
Merger, Company or its applicable Subsidiary shall, in respect of each of the
leased properties listed on Schedule 6.8, and in the event Company or any of its
Subsidiaries (other than Foreign Subsidiaries or Domestic Subsidiaries that are
Non-Wholly-Owned Subsidiaries) shall become a lessee under any lease of
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real property covering 10,000 square feet of building space and having an
unexpired lease term (including options to extend such lease term) of three
years or longer, Company or the applicable Subsidiary shall, use its
commercially reasonable efforts (which shall not require the expenditure of
cash (other than the payment of the respective attorneys fees of Company and
the lessor) or the making of any material concessions under the relevant
lease) to cause the lessor to agree (during the negotiation of such lease if
such lease is entered into after the Merger Date), for the benefit of
Administrative Agent (i) to the matters set forth in subsection 6.8A, (ii)
that without any further consent of such lessor or any further action on the
part of the Loan Party holding the lessee's interest in such property, such
lessee's interest in such property may be encumbered pursuant to a Mortgage
and may be assigned to the purchaser at a foreclosure sale or in a transfer
in lieu of such a sale (and to a subsequent third party assignee if any
Agent, any Lender, or an Affiliate of either so acquires such lessee's
interest in such property), and (iii) that such lessor shall not terminate
such lease as a result of a default by such Loan Party thereunder without
first giving Agents notice of such default and at least 60 days (or, if such
default cannot reasonably be cured by Agents within such period, such longer
period as may reasonably be required) to cure such default.
6.9 MERGER.
Company shall cause Acquisition Co. and DAH to comply with all
material covenants set forth in the Merger Agreement applicable prior to the
consummation of the Merger. Company shall cause the Merger to be consummated
in accordance with the terms and conditions of the Merger Agreement and the
Tender Offer Materials and shall cause each of the conditions set forth in
subsection 4.2 to be fulfilled as soon as practicable and, in any event, no
later than 150 calendar days after the Closing Date. In the event that the
DAH Common Stock to be purchased concurrently with receipt of the proceeds of
the Loans on the Closing Date shall represent, in the aggregate, not less
than 90% of the outstanding shares of DAH Common Stock so as to permit
Company to cause the Merger to occur in accordance with the terms of the
Merger Agreement and Section 253 of the Delaware General Corporation Law,
Company shall promptly cause the Merger to occur.
6.10 SECOND MERGER.
Company shall cause the Second Merger to be consummated on the Merger
Date immediately after the Merger.
6.11 YEAR 2000 COMPLIANCE.
Company will promptly notify Administrative Agent in the event Company
discovers or determines that any computer application (including those of its
suppliers and vendors) that is material to its or its Subsidiaries' business
and operations will not be Year 2000 compliant as of January 1, 2000, except
to the extent that such failure could not reasonably be expected to have a
Material Adverse Effect.
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6.12 PTO AND CO COVER SHEETS, ETC.
Company will deliver to Agents no later than 7 days after the Merger
Date instruments or documents, in appropriate form for filing with the PTO
and/or the CO, sufficient to create and perfect a security interest in all IP
Collateral owned as of the Merger Date by Company and its Subsidiaries (other
than Foreign Subsidiaries and Domestic Subsidiaries that are Non-Wholly-Owned
Subsidiaries).
6.13 MORTGAGES.
A. With respect to the Merger Date Leasehold Mortgaged Properties,
as soon as practicable after Company or the applicable Subsidiary is able to
obtain the agreement of the applicable lessor referred to in subsection 6.8C,
and with respect to the Merger Date Fee Mortgaged Properties, as soon as
practicable after the Merger Date but in no event later than 7 days after the
Merger Date, Company shall deliver to Agents counterparts of the Mortgages
covering such Merger Date Leasehold Mortgaged Properties or Merger Date Fee
Mortgaged Properties, as the case may be, each dated as of the date of such
delivery, duly executed by Company or the applicable Subsidiary in
appropriate form for recording, together with such other documents and
instruments in appropriate form for filing of such Mortgage as may be
necessary or, in the reasonable opinion of Administrative Agent, desirable
effectively to create a valid, perfected, First Priority Lien, subject to
Liens permitted by Section 7.2, against the properties purported to be
covered thereby.
B. As soon as practicable after delivery of each Mortgage pursuant
to subsection 6.13A, Company shall deliver to Agents (i) mortgagee's title
insurance policies in favor of the Agents and the Lenders in amounts and in
form and substance and issued by insurers, reasonably satisfactory to the
Agents, with respect to the property purported to be covered by such
Mortgage, insuring that title to such property is indefeasible and that the
interests created by such Mortgage constitute valid First Priority Liens
thereon free and clear of all defects and encumbrances other than as
permitted by Section 7.2 or as approved by the Agents, and such policies
shall also include, to the extent available, a revolving credit endorsement
and such other endorsements as Administrative Agent shall reasonably request
and shall be accompanied by evidence of the payment in full of all premiums
thereon and (ii) and such other approvals, opinions or documents as the
Agents may reasonably request.
Section 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all
of the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 7.
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7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or otherwise become or
remain liable with respect to, any Indebtedness, except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to any obligations constituting Indebtedness and actually
arising pursuant to Contingent Obligations permitted pursuant to Section
7.4;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness in respect of Capital Leases and other
purchase money Indebtedness incurred to finance the acquisition or
improvement of fixed assets, in an aggregate amount not exceeding
$7,500,000;
(iv) Intercompany Indebtedness (i) of Company or any Domestic
Subsidiary of Company owing to Company or any Subsidiary of Company, and
(ii) of any Foreign Subsidiary of Company owing to (x) any other Foreign
Subsidiary or (y) Company or any Domestic Subsidiary of Company; PROVIDED
that in respect of any such Indebtedness (other than any such
Indebtedness incurred to finance a Permitted Acquisition) described in
this CLAUSE (ii)(y), the aggregate principal amount of such Indebtedness,
when taken together with the aggregate amount at such time of all
outstanding Investments in Foreign Subsidiaries made pursuant to
subsection 7.3(xiii), shall not exceed at any time outstanding
$10,000,000; PROVIDED that (a) if requested by Administrative Agent, all
intercompany Indebtedness shall be evidenced by promissory notes which
shall be delivered to Administrative Agent as Collateral hereunder,
(b) all intercompany Indebtedness owed by Company or by a Subsidiary
Guarantor to any Subsidiary of Company that is not a Subsidiary Guarantor
shall be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of an intercompany subordination
agreement in the form of Exhibit XXX attached hereto;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in SCHEDULE 7.1 annexed
hereto and refinancings and replacements thereof in a principal amount
not exceeding the principal amount of the indebtedness so refinanced or
replaced and with an average life to maturity of not less than the then
average life to maturity of the Indebtedness so refinanced or replaced;
(vi) Company may become and remain liable with respect to up to
$100,000,000 in aggregate principal amount of Indebtedness evidenced by
the Senior Subordinated Bridge Notes (as well as any payment-in-kind
Senior Subordinated Bridge Notes issued in lieu of cash interest thereon)
and Indebtedness evidenced by the Senior Subordinated Notes, so long as,
if Company issued the Senior Subordinated Bridge Notes on the Closing
Date, all of the net proceeds of the Senior Subordinated Notes are used
to
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refinance in whole or in part an equal principal amount of the Senior
Subordinated Bridge Notes then outstanding;
(vii) Indebtedness of Tri-Star Electronics Europe SA incurred
pursuant to a working capital facility not to exceed U.S.$2,000,000 (of
the equivalent thereof in Swiss Francs) at any time outstanding (except
if such excess is caused solely by changes in exchange rates and is
eliminated within five Business Days of its occurrence) and other
Indebtedness of Foreign Subsidiaries in an aggregate outstanding
principal amount which does not exceed $10,000,000 at any time
outstanding;
(viii) Assumed Indebtedness of Company and its Subsidiaries in an
aggregate principal amount at any time outstanding not to exceed
$5,000,000; and
(ix) Company and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not
to exceed $10,000,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents,
including Liens securing payment of any Hedging Obligations owed to any
Person that, at the time such Hedging Obligation was contracted for, was
a Lender or an Affiliate of any Lender;
(iii) Liens described in Schedule 7.2 annexed hereto and Liens
securing extensions, renewals or replacements of the Indebtedness or
other obligations which such identified Liens secure; PROVIDED that no
such extension, renewal or replacement shall increase the obligations
secured by such Lien or extend such Lien to additional assets;
(iv) Liens securing Indebtedness permitted pursuant to
subsection 7.1(iii); provided that the principal amount of such
Indebtedness does not exceed at the time of acquisition or leasing of the
related asset the fair market value of the asset so acquired or leased
and that such Lien is limited solely to the asset so acquired or leased
in connection with the incurrence of such Indebtedness;
(v) Liens on the assets of any Foreign Subsidiary securing the
repayment of the Indebtedness permitted pursuant to subsection
7.1(iv)(ii), 7.1(vii) or 7.1(ix);
(vi) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 7.1, in
each case in favor of the trustee
106
under such indenture and securing only obligations to pay compensation to
such trustee, to reimburse its expenses and to indemnify it under the
terms thereof;
(vii) Liens of sellers of goods to Company and any of its
Subsidiaries arising solely under Article 2 of the UCC or similar
provisions of applicable law in the ordinary course of business, covering
only the goods sold and securing only the unpaid purchase price for such
goods and related expenses;
(viii) Liens securing Assumed Indebtedness of Company and its
Subsidiaries permitted pursuant to Section 7.1(viii), provided, however,
that (i) any such Liens attach only to the property of the Subsidiary
acquired, or the property acquired, in connection with such Assumed
Indebtedness and shall not attach to any assets of Company or any of its
Subsidiaries theretofore existing and (ii) the Assumed Indebtedness and
other secured Indebtedness of Company and its Subsidiaries secured by any
such Lien shall not exceed 100% of the fair market value of the assets
being acquired in connection with such Assumed Indebtedness;
(ix) Liens securing reimbursement obligations in respect of
trade letters of credit, which Liens are limited to the goods purchased
with, or whose purchase was supported by, such letters of credit; and
(x) Other Liens securing Indebtedness and other obligations in
an aggregate amount not to exceed $7,500,000 at any time outstanding.
Nothing in this subsection 7.2 shall prohibit the sale, assignment,
transfer, conveyance or other disposition of any Margin Stock owned by
Company or any of its Subsidiaries at its fair value (as determined in good
faith by its Board of Directors) so long as proceeds are held as Cash or Cash
Equivalents or the creation, incurrence, assumption or existence of any Lien
on or with respect to any Margin Stock.
B. NO FURTHER NEGATIVE PLEDGES. Except (x) with respect to
specific property encumbered to secure payment of particular Indebtedness or
to be sold pursuant to an executed agreement with respect to an Asset Sale
and (y) customary limitations in respect of the Company and its Subsidiaries
contained in any agreement with respect to Indebtedness incurred in reliance
on subsections 7.1(ii), (iv), (vi), (vii) or (viii), and (z) restrictions or
limitations contained in any partnership agreement or joint venture agreement
to which Company or any of its Subsidiaries are a party on the ability to
create or assume Liens on any assets of the relevant partnership or joint
venture, neither Company nor any of its Subsidiaries shall enter into any
agreement (other than an agreement prohibiting only the creation of Liens
securing Subordinated Indebtedness) prohibiting the creation or assumption of
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.
C. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except (x) as provided herein, (y) customary limitations and
prohibitions in any agreement with respect to Indebtedness incurred in
reliance on Section 7.1(iv)(ii)(x), (vii), or (viii) and (z) any such
encumbrance or restriction contained in any partnership or joint venture
agreement to which Company or any of its Subsidiaries is a party, Company
will not, and will not permit any of its
107
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or
any other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed
by such Subsidiary to Company or any other Subsidiary of Company, or (iii)
make loans or advances to Company or any other Subsidiary of Company.
7.3 INVESTMENTS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, except:
(i) Company and its Subsidiaries may make and own Investments
in Cash Equivalents (as determined on the date of acquisition thereof);
(ii) (a) Company and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Company; (b) Company and its Domestic Subsidiaries may make additional
Investments in Company or Subsidiary Guarantors (including without
limitation any such Investments necessary in order to consummate the
Tender Offer in accordance with the Tender Offer Materials, the Merger in
accordance with the Merger Agreement and the Second Merger) subject to
compliance with subsections 6.7 and 6.8; (c) any Foreign Subsidiary may
make additional Investments in any other Foreign Subsidiary; and (d)
Acquisition Co. may purchase the DAH Common Stock pursuant to the Tender
Offer in accordance with the Tender Offer Materials;
(iii) Company and its Subsidiaries may make intercompany loans to
the extent permitted under subsection 7.1(iv) and incur Contingent
Obligations permitted by subsection 7.4;
(iv) Company and its Subsidiaries may make Investments in
Wholly-Owned Subsidiaries that are Domestic Subsidiaries in an aggregate
amount not exceeding $22,000,000 in order to consummate an acquisition
substantially on the terms described to the Syndication Agent prior to
the date hereof.
(v) Company and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date and described in
Schedule 7.3 annexed hereto and extensions or renewals thereof, provided
that no such extension or renewal shall be made in reliance on this
clause (v) if it would (x) increase the amount of such Investment at the
time of such renewal or extension or (y) result in a Potential Event of
Default or an Event of Default hereunder;
(vi) Company and its Subsidiaries may make and own Investments
received in connection with Asset Sales permitted pursuant to subsection
7.7(xii);
108
(vii) Investments constituting Consolidated Capital Expenditures
(and any capital expenditures excluded from the definition of
Consolidated Capital Expenditures pursuant to clause (y) thereof);
(viii) Investments made by Company or any of its Subsidiaries in
Permitted Acquisitions in accordance with subsection 7.7(viii);
(ix) Investments arising under or in connection with Interest
Rate Agreements and Currency Agreements entered into in the ordinary
course of business and not for speculative purposes;
(x) Company and its Subsidiaries may make and own Investments
received in connection with the bankruptcy or reorganization or suppliers
and customers and in settlement of delinquent obligations of and other
disputes with customers and suppliers arising in the ordinary course of
business;
(xi) Company and its Subsidiaries may make and own Investments
in the form of loans (x) to officers, directors and employees of the
Company and its Subsidiaries for the sole purpose of purchasing common
stock of Parent (or purchases of such loans made by others) in an
aggregate principal amount at any time outstanding not to exceed
$5,000,000, so long as immediately before and after giving effect
thereto, no Potential Event of Default or Event of Default has occurred
and is continuing and (y) to Global Technology Partners in an aggregate
principal amount not to exceed $1,000,000 for the sole purpose of
purchasing common stock of Parent;
(xii) Company and its Subsidiaries may make and own Investments
solely from the proceeds of capital contributions by Parent to the
Company or sales of equity Securities by the Company to Parent, in each
case only to the extent proceeds from such capital contribution or sale
(x) are not required to be applied to repay the Term Loans or to reduce
the Acquisition Loan Commitments pursuant to subsection 2.4(B)(iii)(c),
(y) arise from the issuance by Parent of its equity Securities, and (z)
are received after the Closing Date for the purpose of making an
Investment identified in a notice delivered to the Agents on or prior to
the date such capital contribution or sale or repayment is made, so long
as immediately before and after giving effect to any such Investment, no
Potential Event of Default or Event of Default has occurred and is
continuing; and
(xiii) Company and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time $10,000,000.
7.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Company and its Subsidiaries of Company may become and
remain liable with respect to Contingent Obligations in respect of the
Obligations;
109
(ii) Company may become and remain liable with respect to
Contingent Obligations in respect of Letters of Credit and Company and
its Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of other letters of credit in an aggregate amount
at any time not to exceed $2,000,000 for Company and its Domestic
Subsidiaries and $2,000,000 for Company's Foreign Subsidiaries;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations under Interest Rate Agreements and
Currency Agreements entered into in the ordinary course of business and
not for speculative purposes;
(iv) Company and its Domestic Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of any
Indebtedness of Company or any of its Domestic Subsidiaries permitted by
subsection 7.1; PROVIDED that any such Contingent Obligations in respect
of the Subordinated Indebtedness permitted pursuant to subsection 7.1(vi)
are subordinated to the payment of the Obligations to the same extent as
such Subordinated Indebtedness;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in Schedule 7.4
annexed hereto and extensions or renewals thereof, so long as such
extension or renewal does not increase the amount of the Contingent
Obligation being renewed or extended, as the case may be;
(vi) Company and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Contingent Obligations shall at no
time exceed $2,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; PROVIDED that so long as no Potential Event of
Default or Event of Default shall have occurred and be continuing or would
occur as a result thereof (except in the case of Restricted Junior Payments
permitted by subsections 7.5(i), (iii), (v) and (vi) below):
(i) Company may (a) make payments of regularly scheduled interest
in respect of the Senior Subordinated Bridge Notes and the Senior
Subordinated Notes, in each case in accordance with the terms of and to the
extent required by (and subject to the subordination provisions contained
therein) the Senior Subordinated Bridge Note Agreement or the Senior
Subordinated Indenture, (b) refinance the Senior Subordinated Bridge Notes
with the proceeds of the Senior Subordinated Notes and (c) to make payments
to the holders of the Senior Subordinated Bridge Notes or of the Senior
Subordinated Notes in the form of equity Securities that the subordination
provisions applicable thereto permit such holders to accept prior to the
repayment in full of the Obligations;
(ii) so long as (A) after giving effect to the making of such
Restricted Junior Payment, Company shall be in PRO FORMA compliance with the
covenant set forth in Section 7.6B
110
for the most recent full Fiscal Quarter immediately preceding the date of the
making of such Restricted Payment for which the relevant financial statements
have been delivered pursuant to subsections 6.1(i) or (ii) and (B) an
Authorized Officer of Company shall have delivered a certificate to
Administrative Agent in form and substance reasonably satisfactory to
Administrative Agent (including a calculation of Company's PRO FORMA
compliance with the covenant set forth in Section 7.6B in reasonable detail)
certifying as to the accuracy of clause (ii)(A) above, Company may make
dividend payments to Parent the proceeds of which will be used by Parent to
repurchase, redeem or otherwise acquire or retire for value any equity
Securities of Parent, or any warrant, option or other right to acquire any
such equity Securities, in each case held by any member of management or an
employee of Parent, Company or any of its Subsidiaries pursuant to any
employment agreement, management equity subscription agreement, restricted
stock plan, stock option agreement or other similar arrangements so long as
the total amount of such repurchases, redemptions, acquisitions, retirements
and payments shall not exceed (I) $3,000,000 in any calendar year (with
unused amounts in any calendar year being carried forward to succeeding
calendar years subject to a maximum (without giving effect to the following
clause (II)) of $8,000,000 in any calendar year) PLUS (II) the aggregate cash
proceeds received by Company during such calendar year from any reissuance of
equity Securities of Parent and warrants, options and other rights to acquire
equity Securities of Parent, by Parent or Company to members of management
and employees of Company and its Subsidiaries (to the extent such proceeds
are not otherwise required to be applied pursuant to subsection 2.4B(iii) and
have not been used to make Investments pursuant to subsection 7.3(xii) or
Consolidated Capital Expenditures pursuant to subsection 7.8(ii));
(iii) Company may make dividend payments to Parent to the extent
necessary to permit Parent to (x) pay corporate and other general
administrative expenses (including fees in respect to advisors services) in
an aggregate amount which does not exceed $1,000,000 in any Fiscal Year and
(y) to make payments in respect of taxes imposed on Company and its
Subsidiaries;
(iv) on and after the fifth anniversary of the Closing Date, Company
may make dividend payments to Parent to enable Parent to pay cash interest or
dividends on the Parent P-I-K Securities in accordance with the terms of such
Parent P-I-K Securities; PROVIDED that after giving effect to such payment,
Company would be in compliance with subsection 7.6;
(v) the Company shall be permitted to make payments in respect of
statutory appraisal rights (and any settlement thereof) exercised by holders
of outstanding DAH Common Stock in connection with the Merger; and
(vi) Company may make any Restricted Junior Payment necessary in
order to consummate the Tender Offer in accordance with the Tender Offer
Materials, the Merger in accordance with the Merger Agreement and the Second
Merger.
7.6 FINANCIAL COVENANTS.
A. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall not permit the
Consolidated Fixed Charge Coverage Ratio as of the last day of any Fiscal
Quarter, beginning
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with the Fiscal Quarter ending December 31, 1998, occurring during any period
set forth below to be less than the correlative ratio indicated:
MINIMUM FIXED
PERIOD CHARGE COVERAGE RATIO
------------------------------------ ---------------------
4th Fiscal Quarter, 1998 through 4th
Fiscal Quarter, 2001 1.10 x
1st Fiscal Quarter, 2002 and
thereafter 1.20 x
B. MAXIMUM LEVERAGE RATIO. Company shall not permit the
Consolidated Leverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending December 31, 1998, occurring during
any period set forth below to exceed the correlative ratio indicated:
MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
--------------------------- ------------------------
4th Fiscal Quarter, 1998 6.00 x
1st Fiscal Quarter, 1999 5.90 x
2nd Fiscal Quarter, 1999 5.75 x
3rd Fiscal Quarter, 1999 5.60 x
4th Fiscal Quarter, 1999 5.50 x
1st Fiscal Quarter, 2000 5.40 x
2nd Fiscal Quarter, 2000 5.25 x
3rd Fiscal Quarter, 2000 5.10 x
4th Fiscal Quarter, 2000
through 3rd Fiscal
Quarter, 2001 5.00 x
4th Fiscal Quarter, 2001
through 3rd Fiscal
Quarter, 2002 4.50 x
4th Fiscal Quarter, 2002
through 3rd Fiscal
Quarter, 2003 4.00 x
4th Fiscal Quarter, 2003
through 3rd Fiscal
Quarter, 2004 3.50 x
4th Fiscal Quarter, 2004 and
thereafter 3.00 x
C. MINIMUM CONSOLIDATED EBITDA. Company shall not permit
Consolidated EBITDA for the consecutive four-Fiscal-Quarter period ending on
the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending
December 31, 1998, occurring during any period set forth below to be less
than the correlative amount (the "MINIMUM EBITDA AMOUNT") indicated:
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MINIMUM EBITDA
QUARTER ENDED AMOUNT
--------------------------- ---------------------
4th Fiscal Quarter, 1998 $ 30,000,000
1st Fiscal Quarter, 1999 31,000,000
2nd Fiscal Quarter, 1999 32,000,000
3rd Fiscal Quarter, 1999 33,000,000
4th Fiscal Quarter, 1999 34,000,000
1st Fiscal Quarter, 2000 35,000,000
2nd Fiscal Quarter, 2000 36,000,000
3rd Fiscal Quarter, 2000 37,000,000
4th Fiscal Quarter, 2000
through 3rd Fiscal
Quarter 2001 38,000,000
4th Fiscal Quarter, 2001
through 3rd Fiscal
Quarter 2002 42,000,000
4th Fiscal Quarter, 2002
through 3rd Fiscal
Quarter 2003 46,000,000
4th Fiscal Quarter, 2003 and
thereafter 50,000,000
; PROVIDED that
(x) the Minimum EBITDA Amount for the consecutive
four-Fiscal-Quarter period ending at the last day of any Fiscal
Quarter during any period set forth above shall be increased by an
amount equal to 80% of the Acquired Business EBITDA of each Acquired
Business whose Acquired Business Date falls during the period from and
including the Closing Date to and including the last day of such
Fiscal Quarter; and
(y) to the extent the amount of Consolidated EBITDA for the
immediately preceding consecutive four-Fiscal-Quarter period exceeds
the amount of EBITDA required to be maintained for such consecutive
four-Fiscal-Quarter period pursuant to this subsection, an amount
equal to 50% of such excess amount may be carried forward to (but only
to) the then current Fiscal Quarter (any such amount to be certified
to Administrative Agent in the Compliance Certificate delivered for
the last Fiscal Quarter of such consecutive four-Fiscal-Quarter
period).
For purposes of this subsection 7.6C, the following terms have
the following meanings:
"ACQUIRED BUSINESS" means any business acquired (whether
through the purchase of assets or shares of capital stock) by Company
or any of its Subsidiaries after the Closing Date.
"ACQUIRED BUSINESS DATE" means, with respect to any Acquired
Business, the date of consummation of the acquisition thereof by
Company or any of its Subsidiaries.
"ACQUIRED BUSINESS EBITDA" means, with respect to any Acquired
Business,
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(x) the consolidated net income of such Acquired Business for the
consecutive four-Fiscal-Quarter period ended on or most recently prior
to its Acquired Business Date and with respect to which financial
statements are available on the Acquired Business Date PLUS (y) to the
extent deducted in determining such consolidated net income for such
period, the sum of (i) consolidated interest expense, (ii) income
taxes, (iii) depreciation, (iv) amortization, (v) any extraordinary or
non-recurring losses, and (vi) any non-cash items MINUS (z) to the
extent included in such consolidated net income, extraordinary gains.
D. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the
Consolidated Interest Coverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending December 31, 1998, occurring during any
period set forth below to be less than the correlative ratio indicated:
MINIMUM INTEREST
PERIOD COVERAGE RATIO
---------------------------- -------------------
4th Fiscal Quarter, 1998 1.65 x
1st Fiscal Quarter, 1999 1.65 x
2nd Fiscal Quarter, 1999 1.70 x
3rd Fiscal Quarter, 1999 1.75 x
4th Fiscal Quarter, 1999 1.80 x
1st Fiscal Quarter, 2000 1.85 x
2nd Fiscal Quarter, 2000 1.90 x
3rd Fiscal Quarter, 2000 1.95 x
4th Fiscal Quarter, 2000
through 3rd Fiscal
Quarter, 2001 2.00 x
4th Fiscal Quarter, 2001
through 3rd Fiscal
Quarter, 2002 2.25 x
4th Fiscal Quarter, 2002
through 3rd Fiscal
Quarter, 2003 2.50 x
4th Fiscal Quarter, 2003
through 3rd Fiscal
Quarter, 2004 2.75 x
4th Fiscal Quarter, 2004 and
thereafter 3.00 x
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
Company shall not, and shall not permit any of Company's
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, except:
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(i) (a) any Domestic Subsidiary of Company may be merged with
or into Company or any Subsidiary Guarantor, or be liquidated, wound up
or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any Subsidiary
Guarantor; PROVIDED that, in the case of such a merger, Company or such
Subsidiary Guarantor shall be the continuing or surviving corporation and
(b) any Foreign Subsidiary may be merged with or into another Foreign
Subsidiary or, so long as the surviving corporation of such merger is
Company or a Domestic Subsidiary, with or into the Company or any
Domestic Subsidiary, or be liquidated, wound up or dissolved, or all or
any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of in one transaction or a
series of transactions, to Company, a Subsidiary Guarantor or another
Foreign Subsidiary, PROVIDED, that notwithstanding the above, a
Subsidiary may only liquidate or dissolve into, or merge with and into,
another Subsidiary if, after giving effect to such combination or merger,
Company continues to own (directly or indirectly), and Administrative
Agent continues to have pledged to it pursuant to the DAH Pledge
Agreement or Subsidiary Pledge Agreement, a percentage of the issued and
outstanding equity Securities (on a fully diluted basis) of the
Subsidiary surviving such combinations or merger that is equal to or in
excess of the percentage of the issued and outstanding shares of equity
Securities (on a fully diluted basis) of the Subsidiary that does not
survive such combinations or merger that was (immediately prior to the
combination or merger) owned by the Company or pledged to Administrative
Agent;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may consummate any transfer,
conveyance or other disposal that constitutes (a) an Investment permitted
under subsection 7.3, (b) a Lien permitted under subsection 7.2, (c) a
Restricted Junior Payment permitted under subsection 7.5 or (d) a sale
and leaseback transaction permitted by subsection 7.10;
(v) Company and its Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales;
(vi) Finance Co., Acquisition Co. and DAH may consummate the
Merger and the Second Merger;
(vii) (x) Company and its Subsidiaries may make Permitted
Acquisitions; PROVIDED that such Permitted Acquisitions result in the
Company or the relevant Subsidiary acquiring a majority controlling
interest in the Person (or its assets and businesses) acquired, or
increasing any such controlling interest maintained by it in such Person
or result in the Person acquired becoming an Acquired Controlled Person
with respect to Company and its Subsidiaries; and (y) no later than five
Business Days prior to the consummation thereof, Company delivers to
Agents a Permitted Acquisition
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Compliance Certificate demonstrating compliance with the requirements
of the definition of "Permitted Acquisition" and copies of all
acquisition agreements executed and delivered in connection therewith
to the extent available and requested by Administrative Agent; and
PROVIDED FURTHER that reasonably promptly following the consummation
of such Permitted Acquisition, Company shall have complied with the
provisions of subsections 6.8 and 6.9 with respect thereto to the
extent applicable;
(viii) Prior to the consummation of the Merger, Company or any of
its Subsidiaries may convey, sell, transfer or otherwise dispose of any
Margin Stock, whether now owned or hereafter acquired; PROVIDED that such
disposition is for fair value and the proceeds are held in Cash or Cash
Equivalents;
(ix) Company and its Subsidiaries may sell or otherwise dispose
of assets as a result of any taking of assets described in clause (ii) of
the definition of "Net Insurance/Condemnation Proceeds", so long as the
Net Insurance/Condemnation Proceeds resulting therefrom are applied or
reinvested as required by subsection 2.4B(iii)(b);
(x) Company and its Subsidiaries may sell or discount overdue
accounts receivable in the ordinary course of business, but only in
connection with the compromise or collection thereof;
(xi) Company and its Subsidiaries may make Asset Sales to
Non-Wholly-Owned Subsidiaries that are not Subsidiary Guarantors of
assets having a fair market value of not in excess of $10,000,000 over
the term of this Agreement; provided that (x) the consideration for
such assets shall be in an amount at least equal to the fair market
value thereof, and (y) any Investment in such Non-Wholly-Owned
Subsidiaries resulting from such Asset Sale shall be permitted by
subsection 7.3(xiii) or as a Permitted Acquisition pursuant to
subsection 7.3 (viii); and
(xii) Company and its Subsidiaries may make Asset Sales not
permitted by the foregoing clauses of assets having a fair market
value of not in excess of $5,000,000 in any Fiscal Year or of
$10,000,000 in the aggregate for all such Asset Sales made after the
Closing Date; PROVIDED that (x) the consideration received for such
assets shall be in an amount at least equal to the fair market value
thereof; (y) at least 75% of the consideration received therefor is in
the form of cash; and (z) the proceeds of such Asset Sale are applied
or reinvested as required by subsection 2.4B(iii)(a).
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
(i) Company will not, and will not permit any of its
Subsidiaries to, make or commit to make Consolidated Capital
Expenditures in any Fiscal year, except Consolidated Capital
Expenditures which do not aggregate in excess of $8,000,000 in such
Fiscal Year PLUS an additional aggregate amount equal to $10,000,000
over the term of this Agreement; PROVIDED that (a) if the aggregate
amount of Consolidated Capital Expenditures actually made in any such
Fiscal Year shall be less than the limit with respect thereto set
forth above (before giving effect to any increase therein pursuant to
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this proviso) (the "BASE AMOUNT"), then the amount of such shortfall
(up to an amount equal to 50% of the Base Amount for such Fiscal Year,
without giving effect to this proviso) may be added to the amount of
such Consolidated Capital Expenditures permitted for the immediately
succeeding Fiscal Year and any such amount carried forward to a
succeeding Fiscal Year shall be deemed to be used prior to Company and
its Subsidiaries using the amount of capital expenditures permitted by
this section in such succeeding Fiscal Year, without giving effect to
such carryforward and (b) for any Fiscal Year (or portion thereof)
following any acquisition of a business (whether through the purchase
of assets or of shares of capital stock) permitted under Article 7,
the Base Amount for such Fiscal Year (or portion) shall be increased,
for each such acquisition, by an amount equal to the product of (A)
the lesser of (x) $5,000,000 and (y) 4% of revenues of the business
acquired in such acquisition for the period of four Fiscal Quarters
most recently ended on or prior to the date of such Business
Acquisition multiplied by (B) (x) in the case of any partial Fiscal
Year, a fraction, the numerator of which is the number of days
remaining in such Fiscal Year after the date of such Business
Acquisition and the denominator of which is 365 (or 366 in a leap
year), and (y) in the case of any full Fiscal Year, 1.
(ii) The parties acknowledge and agree that the permitted
Consolidated Capital Expenditure level set forth in clause (i) above
shall be exclusive of the amount of Consolidated Capital Expenditures
actually made with the proceeds of a cash capital contribution to
Company (including the proceeds of issuance of equity securities) made,
by Parent from the issuance by Parent of its equity Securities after the
Closing Date and specifically identified in a certificate delivered by an
Authorized Officer of Company to Administrative Agent on or about the
time such capital contribution is made; PROVIDED that, to the extent any
such cash capital contributions constitute Net Securities Proceeds after
the Merger Date, only that portion of such Net Securities Proceeds which
is not required to be applied as a prepayment pursuant to
Section 2.4B(iii)(c) may be used for Consolidated Capital Expenditures
pursuant to this clause (ii).
7.9 FISCAL YEAR.
Company shall not change its Fiscal Year-end from December 31
of each calendar year.
7.10 SALES AND LEASE-BACKS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a
guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which Company or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than Company or any of its Subsidiaries) or (ii) which Company
or any of its Subsidiaries intends to use for substantially the same purpose
as any other property which has been or is to be sold or transferred by
Company or any of its Subsidiaries to any Person (other than Company or any
of its Subsidiaries) in connection with such lease; PROVIDED that Company and
its Subsidiaries may become and remain liable as lessee, guarantor or other
surety with respect to any such lease if the
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property which is subject to such lease was acquired by Company or any of its
Subsidiaries within 180 days of such sale or transfer of such property by the
Company or any of its Subsidiaries.
7.11 SALE OR DISCOUNT OF RECEIVABLES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, sell with recourse, or discount or otherwise sell
for less than the face value thereof, any of its notes or accounts
receivable; provided that Company and its Subsidiaries may sell or discount
overdue accounts receivable in the ordinary course business, but only in
connection with the compromise or collection thereof.
7.12 TRANSACTIONS WITH STOCKHOLDERS AND AFFILIATES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 10% or more of the voting
Securities of Parent or Company or with any Affiliate of Parent or Company on
terms that are less favorable to Company or that Subsidiary, as the case may
be, than those that might be obtained at the time from Persons who are not
such a holder or Affiliate; PROVIDED that the foregoing restriction shall not
apply to (i) any transaction between Company and any of its Wholly-Owned
Subsidiaries or between any of its Wholly-Owned Subsidiaries; (ii) reasonable
and customary fees paid to members of the Boards of Directors of Company and
its Subsidiaries; (iii) any Restricted Junior Payment permitted under
subsection 7.5; (iv) the entry into and performance of obligations under
arrangements with DLJ and its Affiliates for underwriting, investment banking
and advisory services on usual and customary terms (including payments of the
fee in respect of advisory services contemplated in subsection 7.5(iii)); (v)
the payment of reasonable and customary fees and reimbursement of expenses
payable to directors of Parent; (vi) employment arrangements with respect to
the procurement of services of directors, officers and employees in the
ordinary course of business and the payment of reasonable fees in connection
therewith; (vii) the issuance of equity Securities to Global Technology
Partners, L.L.C. described in subsection 7.3; (viii) the execution, delivery
and performance of the Merger Agreement and the consummation of the Tender
Offer and the other transactions contemplated by the Tender Offer Materials;
and (ix) the execution, delivery and performance of the agreements listed on
Schedule 7.12.
7.13 ISSUANCE OF SUBSIDIARY EQUITY.
Company shall not permit any of its Subsidiaries directly or
indirectly to issue any shares of its capital stock or other equity
Securities except to Company, another Subsidiary of Company, to qualify
directors if required by applicable law or in proportion to its existing
equity Securities of any class. Company shall not permit DAH on and after the
Closing Date to issue any options, warrants or other rights to purchase or
acquire any equity interest in DAH if after giving effect thereto, Company
would own less than the Minimum Shares.
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7.14 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
similar or related businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders.
7.15 AMENDMENTS OR WAIVERS OF MERGER AGREEMENT; AMENDMENTS OF DOCUMENTS
RELATING TO SUBORDINATED INDEBTEDNESS.
A. Neither Company nor any of its Subsidiaries will agree to any
material amendment to, or waive any of its material rights under, the Merger
Agreement, or terminate or agree to terminate the Merger Agreement without in
each case obtaining the prior written consent of Requisite Lenders to such
amendment, waiver or termination.
B. Company shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if
the effect of such amendment or change is to increase the interest rate on
such Subordinated Indebtedness, change (to earlier dates) any dates upon
which payments of principal or interest are due thereon, change any event of
default or condition to an event of default with respect thereto (other than
to eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder to the detriment of Lenders or to confer any additional rights on
the holders of such Subordinated Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to Lenders.
C. Company shall not, and shall not permit any of its Subsidiaries
to, designate any Indebtedness as "Designated Senior Debt" (as defined in any
of the Senior Subordinated Bridge Note Agreement or the Senior Subordinated
Note Indenture) without the prior written consent of Requisite Lenders.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of
Default") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by
Company to pay when due any amount payable to an Issuing Lender in
reimbursement of any drawing under a Letter of Credit; or failure by Company
to pay any interest on any Loan or any fee or any other amount due under this
Agreement within five days after the date due; or
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8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when
due any principal of or interest on or any other amount payable in respect of
one or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1) or Contingent Obligations in either an individual or an
aggregate principal amount of $5,000,000 or more, in each case beyond the end
of any grace period provided therefor; or (ii) breach or default by Company
or any of its Subsidiaries with respect to any other material term of (a) one
or more items of Indebtedness or Contingent Obligations in the individual or
aggregate principal amounts referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such item(s) of
Indebtedness or Contingent Obligation(s), if the effect of such breach or
default is to cause, or to permit the holder or holders of that Indebtedness
or Contingent Obligation(s) (or a trustee on behalf of such holder or
holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or
condition contained in subsection 2.5, 6.2 (solely with respect to the
continued existence of Company) or 6.1(vii) or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its
Subsidiaries in writing pursuant hereto or thereto or in connection herewith
or therewith shall be false in any material respect on the date as of which
made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents, other than any such term referred to in any other subsection of
this Section 8, and such default shall not have been remedied or waived
within 30 days after receipt by Company and such Loan Party of notice from
Administrative Agent at the direction of the Requisite Lenders of such
default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its Subsidiaries
(other than any Immaterial Subsidiary) in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against Company or any of its
Subsidiaries (other than any Immaterial Subsidiary) under the Bankruptcy Code or
under any other applicable bankruptcy,
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insolvency or similar law now or hereafter in effect; or a decree or order of
a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Company or any of its Subsidiaries (other than any
Immaterial Subsidiary), or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of Company or
any of its Subsidiaries (other than any Immaterial Subsidiary) for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries (other than any Immaterial
Subsidiary), and any such event described in clauses (i) or (ii) shall
continue for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall have an order for relief entered with respect to
it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
or shall consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or Company or any of its Subsidiaries (other than any Immaterial
Subsidiary) shall make any assignment for the benefit of creditors; or (ii)
Company or any of its Subsidiaries (other than any Immaterial Subsidiary)
shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (other than any Immaterial
Subsidiary) (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment involving
either in any individual case or in the aggregate at any time an amount in
excess of $5,000,000 (in either case not adequately covered by insurance as
to which a responsible insurance company is not denying its liability with
respect thereto) shall be entered or filed against Company or any of its
Subsidiaries or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of 60 days; or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company
or any of its Subsidiaries (other than any Immaterial Subsidiary) decreeing
the dissolution or split up of Company or that Subsidiary (except as
permitted under Sections 6.2 and 7.7 and such order shall remain undischarged
or unstayed for a period in excess of 60 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to result in
liability of Company, any of its
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Subsidiaries or any of their respective ERISA Affiliates in excess of
$5,000,000 during the term of this Agreement; or there shall exist an amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which exceeds $5,000,000; or
8.11 CHANGE IN CONTROL.
Any Change in Control shall occur; or
8.12 INVALIDITY OF GUARANTIES; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
Guaranty for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii) any
Collateral Document shall cease to be in full force and effect (other than by
reason of a release of Collateral thereunder in accordance with the terms
hereof or thereof, the satisfaction in full of the Obligations or any other
termination of such Collateral Document in accordance with the terms hereof
or thereof) or shall be declared null and void, or Administrative Agent shall
not have or shall cease to have a valid and perfected First Priority Lien in
any Collateral purported to be covered thereby, in each case for any reason
other than the failure of any Agent or any Lender to take any action within
its control or except to the extent that any such event is covered by a
lender's title insurance policy and the relevant insurer promptly after the
occurrence thereof shall have acknowledged in writing that the same is
covered by such title insurance policy, or (iii) any Loan Party shall contest
the validity or enforceability of any Loan Document in writing; or
8.13 MERGERS.
The Mergers shall be unwound, reversed or otherwise rescinded
in whole or in part for any reason or, prior to the Merger Date, the Merger
Agreement shall be terminated or the Merger shall not occur on or prior to
the 150th day after the Closing Date;
THEN (i) upon the occurrence of any Event of Default described in subsection
8.6 or 8.7 (with respect to Company or any Subsidiary Guarantor and, prior to
the Merger, DAH), each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (whether or
not any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit), and (c) all other
Obligations shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which
are hereby expressly waived by Company, and the obligation of each Lender to
make any Loan, the obligation of any Issuing Lender to issue any Letter of
Credit and the right of any Issuing Lender to issue any Letter of Credit
hereunder shall thereupon terminate, and (ii) upon the occurrence and during
the continuation of any other Event of Default, Administrative Agent shall,
upon the written request or with the written consent of Requisite Lenders, by
written notice to Company, declare all or any portion of the amounts
described in clauses (a) through (c) above to be, and the same shall
forthwith become, immediately due and
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payable, and the obligation of each Lender to make any Loan, the obligation
of any Issuing Lender to issue any Letter of Credit and the right of any
Issuing Lender to issue any Letter of Credit hereunder shall thereupon
terminate; PROVIDED that the foregoing shall not affect in any way the
obligations of Working Capital Lenders under subsection 3.3C(i) or the
obligations of Working Capital Lenders to purchase participations in any
unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent and applied as
follows:
If for any reason the aggregate amount delivered by Company as aforesaid is
less than the amount described in clause (b) above (the "AGGREGATE AVAILABLE
AMOUNT"), the aggregate amount so delivered shall be apportioned among all
outstanding Letters of Credit in accordance with the ratio of the maximum
amount available for drawing under each such Letter of Credit (as to such
Letter of Credit, the "MAXIMUM AVAILABLE AMOUNT") to the Aggregate Available
Amount. Upon any drawing under any outstanding Letters of Credit in respect
of which Company has delivered to Administrative Agent any amounts described
above, Administrative Agent shall apply such amounts to reimburse the Issuing
Lender for the amount of such drawing. In the event of cancellation or
expiration of any Letter of Credit in respect of which Company has delivered
any amounts described above, or in the event of any reduction in the Maximum
Available Amount under such Letter of Credit, Administrative Agent shall
apply the amount then on deposit with it in respect of such Letter of Credit
(LESS, in the case of such a reduction, the Maximum Available Amount under
such Letter of Credit immediately after such reduction) first, to the extent
of any excess, to the cash collateralization of any outstanding Letters of
Credit in respect of which Company has failed to pay all or a portion of the
amounts described above (such cash collateralization to be apportioned among
all such Letters of Credit in the manner described above), second, to the
extent of any further excess, to the payment of any other outstanding
Obligations in such order as Administrative Agent shall elect, and third, to
the extent of any further excess, to the payment to whomsoever shall be
lawfully entitled to receive such funds.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Company shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Loans, in each
case which is due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to
bind Lenders to a decision which may be made at the election of Requisite
Lenders and are not intended, directly or indirectly, to benefit Company, and
such provisions shall not at any time be construed so as to grant Company the
right to require Lenders to rescind or annul any acceleration hereunder or to
preclude Administrative Agent or Lenders from exercising any of
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the rights or remedies available to them under any of the Loan Documents,
even if the conditions set forth in this paragraph are met.
SECTION 9. THE AGENTS
9.1 APPOINTMENT.
A. APPOINTMENT OF AGENTS. First Chicago is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its contractual
representative in accordance with the terms of this Agreement and the other
Loan Documents. DLJ is hereby appointed Syndication Agent hereunder and
under the other Loan Documents and each Lender hereby authorizes Syndication
Agent to act as its contractual representative in accordance with the terms
of this Agreement and the other Loan Documents. Each of Syndication Agent
and Administrative Agent agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of each of
Syndication Agent and Administrative Agent, and Lenders and Company shall
have no rights as a third party beneficiary of any of the provisions thereof.
Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the no Agent shall have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agents are merely acting as the contractual
representatives of the Lenders with only those duties as are expressly set
forth in this Agreement and the other Loan Documents. In their respective
capacities as the Lenders' contractual representatives, the Agents (i) do not
hereby assume any fiduciary duties to any of the Lenders, (ii) are
"representatives" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) are acting as independent contractors, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agents on any agency theory or any other theory
of liability for breach of fiduciary duty, all of which claims each Lender
hereby waives.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation
of any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of
the enforcement of any of the Loan Documents, or in case Administrative Agent
deems that by reason of any present or future law of any jurisdiction it may
not exercise any of the rights, powers or remedies granted herein or in any
of the other Loan Documents or take any other action which may be desirable
or necessary in connection therewith, it may be necessary that Administrative
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in
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or conveyed to Administrative Agent with respect to such Collateral shall be
exercisable by and vest in such Supplemental Collateral Agent to the extent,
and only to the extent, necessary to enable such Supplemental Collateral
Agent to exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and
every covenant and obligation contained in the Loan Documents and necessary
to the exercise or performance thereof by such Supplemental Collateral Agent
shall run to and be enforceable by either Administrative Agent or such
Supplemental Collateral Agent, and (ii) the provisions of this Section 9 and
of subsections 10.2 and 10.3 that refer to Administrative Agent shall inure
to the benefit of such Supplemental Collateral Agent and all references
therein to Administrative Agent shall be deemed to be references to
Administrative Agent and/or such Supplemental Collateral Agent, as the
context may require.
Should any instrument in writing from Company or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming
to him or it such rights, powers, privileges and duties, Company shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
X. XXXXXX. Each Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to such Agent by the terms
thereof, together with such powers as are reasonably incidental thereto. No
Agent shall have any implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by such Agent.
B. GENERAL IMMUNITY. No Agent nor any of their respective directors,
officers, agents or employees shall be liable to Company, the Lenders or any
Lender for any action taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or therewith except to
the extent such action or inaction has arisen from the gross negligence or
willful misconduct of such Person.
C. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. No Agent nor any of
their respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (b) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Section 4, except
receipt of items required to be delivered solely to Administrative Agent or
Syndication Agent, as the case may be; (d) the existence or possible existence
of any Event of Default or Potential of Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or
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priority of any Lien in any collateral security; or (g) the financial
condition of Company or any guarantor of any of the Obligations or of any of
Company's or any such guarantor's respective Subsidiaries. No Agent shall
have any duty to disclose to the Lenders information that is not required to
be furnished by Company to such Agent at such time, but is voluntarily
furnished by Company to such Agent (either in its capacity as Administrative
Agent or Syndication Agent, as the case may be, or in its individual
capacity). Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising
from confirmations of the amount of outstanding Loans or the Letter of Credit
Usage or the component amounts thereof.
D. ACTION ON INSTRUCTIONS OF LENDER. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Requisite Lenders (or if required by the terms of subsection 10.6, all of the
Lenders), and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge
that each Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Requisite Lenders. Each Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders in proportion to their
Pro Rata Share against any and all liability, cost and expense that it may incur
by reason of taking or continuing to take any such action.
E. EMPLOYMENT OF AGENTS AND COUNSEL. Each Agent may execute any of
its duties as Administrative Agent or Syndication Agent, as the case may be,
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Each Agent shall be entitled to advice of counsel concerning
the contractual arrangement between the Agents and the Lenders and all matters
pertaining to each Agent's duties hereunder and under any other Loan Document.
F. RELIANCE ON DOCUMENTS; COUNSEL. Each Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by any Agent, which counsel
may be employees of any Agent.
G. AGENTS' REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify each Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by Company for which any Agent is entitled to reimbursement by
Company under the Loan Documents, (ii) for any other expenses incurred by any
Agent on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including,
without limitation, for any expenses incurred by any Agent in connection with
any dispute between the Agents, the Agents and any Lender or between two or
more of the Lenders) and (iii) for any liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against any Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against any
Agent in connection with any dispute between the Agents, the Agents and any
Lender or between two or more of the Lenders), or the enforcement of any of
the terms of the Loan Documents or of any such other documents; PROVIDED that
(i) no Lender shall be liable for any of the foregoing to the extent any of
the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of any Agent and (ii) any indemnification required pursuant to
subsection 2.7 shall, notwithstanding the provisions of this subsection, be
paid by the relevant Lender in accordance with the provisions thereof. The
obligations of the Lenders under this subsection shall survive payment of the
Obligations and termination of this Agreement.
H. NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Event of Default or Potential Event of Default
hereunder unless such Agent has received written notice from a Lender or Company
referring to this Agreement describing such Event of Default or Potential Event
of Default and stating that such notice is a "notice of default". In the event
that any Agent receives such a notice, such Agent shall give prompt notice
thereof to the Lenders.
I. RIGHTS AS A LENDER. In the event any Agent is a Lender, such Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not such Agent, and the term "Lender" or
"Lenders" shall, at any time when any Agent is a Lender, unless the context
otherwise indicates, include such Agent in its individual capacity. Each
Agent and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with Company or any of its Subsidiaries in which Company or such Subsidiary
is not restricted hereby from engaging with any other Person.
J. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, the Arranger or any other
Lender and based on financial statements prepared by Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent, the Arranger or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
K. DELEGATION TO AFFILIATES. Company and the Lenders agree that any
Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection with this Agreement
shall be entitled to the same benefits of the indemnification, waiver and other
protective provisions to which such Agent is entitled under Sections 9 and 10.
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9.3 SUCCESSOR AGENTS AND SWING LINE LENDER.
A. SUCCESSOR AGENTS. The Syndication Agent may resign at any time
upon one Business Day's prior notice thereof to Company and Administrative
Agent, and the Administrative Agent may resign at any time by giving written
notice thereof to the Syndication Agent, the Lenders and Company, such
resignations to be effective upon the appointment of a successor Administrative
Agent or Syndication Agent, as the case may be, or, if no successor
Administrative Agent or Syndication Agent has been appointed, forty-five days
after the retiring Administrative Agent or Syndication Agent gives notice of its
intention to resign. Administrative Agent may be removed at any time with or
without cause by written notice received by Administrative Agent from the
Requisite Lenders, such removal to be effective on the date specified by the
Requisite Lenders. Upon any such resignation or removal, the Requisite Lenders
shall have the right to appoint, on behalf of Company and the Lenders, and, if
no Event of Default has occurred and is continuing, subject to the consent of
Company, a successor Administrative Agent or Syndication Agent, as the case may
be. If no successor Administrative Agent or Syndication Agent shall have been
so appointed by the Requisite Lenders within thirty days after the resigning
Administrative Agent's or Syndication Agent's giving notice of its intention to
resign, then the resigning Administrative Agent or Syndication Agent, as the
case may be, may appoint, on behalf of Company and the Lenders, a successor
Administrative Agent or Syndication Agent, as the case may be. Notwithstanding
the previous sentence, Administrative Agent or Syndication Agent may at any time
without the consent of Company or any Lender, appoint any of its Affiliates
which is a commercial bank as the successor Administrative Agent or Syndication
Agent hereunder. If Administrative Agent or Syndication Agent has resigned or
been removed and no successor Administrative Agent or Syndication Agent has been
appointed, the Lenders may perform all the duties of Administrative Agent or
Syndication Agent hereunder and Company shall make all payments in respect of
the Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Administrative Agent or Syndication
Agent shall be deemed to be appointed hereunder until such successor
Administrative Agent or Syndication Agent has accepted the appointment. Any
such successor Administrative Agent or Syndication Agent shall be a commercial
bank having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent or Syndication Agent
hereunder by a successor Administrative Agent or Syndication Agent, such
successor Administrative Agent or Syndication Agent shall thereupon succeed to
and become vested with all the rights, power, privileges and duties of the
resigning or removed Administrative Agent or Syndication Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent or
Syndication Agent, the resigning or removed Administrative Agent or Syndication
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation or removal of
the Administrative Agent or the Syndication Agent, as the case may be, the
provisons of this Section 9 shall continue in effect for the benefit of such
Administrative Agent or Syndication Agent in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent or
Syndication Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this
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subsection, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administration Agent.
B. SUCCESSOR SWING LINE LENDER. Any resignation or removal of
Administrative Agent pursuant to subsection 9.3A shall also constitute the
resignation or removal of First Chicago or its successor as Swing Line
Lender, and any successor Administrative Agent appointed pursuant to
subsection 9.3A shall, upon its acceptance of such appointment, become the
successor Swing Line Lender for all purposes hereunder. In such event (i)
the resigning or removed Swing Line Lender shall assign all of its rights and
obligations with respect to the Swing Line Loans to the successor Swing Line
Lender pursuant to an Assignment Agreement and such successor Swing Line
Lender shall be entitled thereafter to all of the rights and immunities of
the resigning or removed Swing Line Lender pursuant to subsection 2.1, (ii)
the retiring or removed Administrative Agent and Swing Line Lender shall
surrender the Swing Line Note held by it to Company for cancellation, and
(iii) Company shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of
EXHIBIT VII annexed hereto, in the principal amount of the Swing Line Loan
Commitment then in effect and with other appropriate insertions.
9.4 COLLATERAL DOCUMENTS AND GUARANTIES.
A. EXECUTION OF COLLATERAL DOCUMENTS. The Lenders hereby empower and
authorize Administrative Agent to execute and deliver to Company on their
behalf the Collateral and all related financing statements and any financing
statements, agreements, documents or instruments as shall be necessary or
appropriate to effect the purposes of the Collateral Documents and to be the
agent for and representative of Lenders under each Guaranty, and each Lender
agrees to be bound by the terms of each Collateral Document and Guaranty.
Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, each Agent and each Lender hereby agree that (X) no
Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce any Guaranty, it being
understood and agreed that all rights and remedies under the Collateral
Documents and the Guaranties may be exercised solely by Administrative Agent
for the benefit of Lenders in accordance with the terms thereof, and (Y) in
the event of a foreclosure by Administrative Agent on any of the Collateral
pursuant to a public or private sale, any Agent or any Lender may, to the
fullest extent that the same may be permitted under applicable law, be the
purchaser of any or all of such Collateral at any such sale and
Administrative Agent, as agent for and representative of Lenders (but not any
Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for
the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the purchase price
for any collateral payable by Administrative Agent at such sale.
B. COLLATERAL RELEASES. The Lenders hereby empower and authorize
Administrative Agent to execute and deliver to Company on their behalf any
agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of Collateral which shall be permitted by the terms hereof
or of any other Loan Document or which shall otherwise have been
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approved by the Requisite Lenders (or, if required by the terms of subsection
10.6, all of the Lenders) in writing.
Section 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the
right at any time to (i) sell, assign or transfer to any Eligible Assignee, or
(ii) sell participations to any Person in, all or any part of its Commitments or
any Loan or Loans made by it or participations in Letters of Credit hereunder or
any other interest herein or in any other Obligations owed to it; PROVIDED that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; PROVIDED, FURTHER that no
such sale, assignment, transfer or participation of any participation in Letters
of Credit hereunder may be made separately from a sale, assignment, transfer or
participation of a corresponding interest in the Working Capital Loan Commitment
and the Working Capital Loans of the Working Capital Lender effecting such sale,
assignment, transfer or participation; and PROVIDED, FURTHER that, anything
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.3. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan or
participation in Letters of Credit hereunder, or other Obligation may
(a) be assigned in any amount to another Lender, or to an Affiliate or
Affiliated Fund of the assigning Lender or another Lender, with the
giving of notice to Company and Administrative Agent, or (b) be assigned
in an aggregate amount of not less than $3,000,000 (or such lesser amount
as shall constitute the aggregate amount of the Commitments, Loans, and
participations in Letters of Credit, and other Obligations of the
assigning Lender or as may be consented to by Company and Agents) to any
other Eligible Assignee with the consent of Company (which consent shall
only be required if no Event of Default has occurred and is continuing)
and, with respect to all Lenders other than Syndication Agent,
Administrative Agent (which consent of Company and Administrative Agent
shall not be unreasonably withheld or delayed). To the extent of any
such assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to its
Commitments, Loans or participations in Letters of Credit, or other
Obligations or the portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative Agent, for its
acceptance, an Assignment Agreement (which shall contain a representation
by the Assignee to the
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effect that none of the consideration used to make the purchase of the
Commitment, Loan or participation in Letters of Credit under the
applicable Assignment Agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Assignee in and under
the Loan Documents will not be "plan assets" under ERISA), together
with a processing fee of $3,500 (or such other amount as may be agreed
to by Administrative Agent) and such forms, certificates or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may
be required to deliver to Administrative Agent pursuant to subsection
2.7B(iii)(a). Upon such execution, delivery and acceptance from and
after the effective date specified in such Assignment Agreement, (y) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment Agreement, shall have the rights and obligations of a
Lender hereunder and (z) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights (other than
any rights which survive the termination of this Agreement under
subsection 10.9B) and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or
the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto;
PROVIDED that, anything contained in any of the Loan Documents to the
contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue
to have all rights and obligations of an Issuing Lender with respect to
such Letters of Credit until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts drawn thereunder).
The Commitments hereunder shall be modified to reflect the Commitment of
such assignee and any remaining Commitment of such assigning Lender and,
if any such assignment occurs after the issuance to the assigning Lender
of Notes hereunder, the assigning Lender shall, upon the effectiveness of
such assignment or as promptly thereafter as practicable, surrender its
applicable Notes to Administrative Agent for cancellation, and thereupon
new Notes shall be issued to the assignee and to the assigning Lender,
substantially in the form of EXHIBIT IV, EXHIBIT V, EXHIBIT VI,
EXHIBIT VII or EXHIBIT VIII annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or outstanding
Term Loans, as the case may be, of the assignee and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT. Upon its receipt of an
Assignment Agreement executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the
processing fee referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii)(a),
Administrative Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)), (a) accept
such Assignment Agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment) and (b) give prompt notice
thereof to Company. Administrative Agent shall
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maintain a copy of each Assignment Agreement delivered to and accepted
by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require the Lender that shall have granted such participation to it to take or
omit to take any action hereunder except action directly affecting (i) the
extension of the scheduled final maturity date of any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation, and all amounts
payable by Company hereunder (including amounts payable to such Lender pursuant
to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not
sold such participation. Company and each Lender hereby acknowledge and agree
that, solely for purposes of subsections 10.4 and 10.5, to the fullest extent
permitted under applicable law, (a) any participation will give rise to a direct
obligation of Company to the participant and (b) the participant shall be
considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank; PROVIDED that (i) no Lender shall, as between Company
and such Lender, be relieved of any of its obligations hereunder as a result of
any such assignment and pledge and (ii) in no event shall such Federal Reserve
Bank be considered to be a "Lender" or be entitled to require the assigning
Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature
pages hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of the Agents with respect to the preparation of the Loan
Documents and any consents, amendments, waivers or other modifications thereto;
(ii) the reasonable fees, expenses and disbursements of a
132
single counsel to Agents and Arranger (including the costs of local or
foreign counsel, to the extent required) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (iii) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of
Administrative Agent on behalf of Lenders pursuant to any Collateral
Document, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums, and reasonable
fees, expenses and disbursements of counsel to Agents and of counsel
providing any opinions that Syndication Agent, Administrative Agent or
Requisite Lenders may request in respect of the Collateral Documents or the
Liens created pursuant thereto; (iv) the custody or preservation of any of
the Collateral; (v) all other actual and reasonable costs and expenses
incurred by Arranger, Syndication Agent or Administrative Agent (including
the reasonable fees, expenses and disbursements of any auditors, accountants
or appraisers and any environmental or other consultants, advisors and agents
employed or retained by Syndication Agent, Administrative Agent or their
respective counsel) in connection with the syndication of the Commitments and
the negotiation, preparation and execution of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (vi) after the occurrence of an Event
of Default, all costs and expenses, including reasonable attorneys' fees and
costs of settlement, incurred by Agents and Lenders in enforcing any
Obligations of or in collecting any payments due from any Loan Party
hereunder or under the other Loan Documents by reason of such Event of
Default (including in connection with the sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranties
or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings).
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Arranger, Agents and Lenders, and the officers,
directors, trustees, employees, agents and affiliates of Arranger, Agents and
Lenders (collectively called the "INDEMNITEES"), from and against any and all
Indemnified Liabilities (as hereinafter defined); PROVIDED that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of that Indemnitee as determined by a
final judgment of a court of competent jurisdiction or to the extent that such
Indemnified Liabilities are Environmental Liabilities that arise solely out of
the actions of Administrative Agent or Lenders occurring after Administrative
Agent or Lenders shall have foreclosed on, or otherwise dispossessed Company and
its Subsidiaries of, the applicable Facility.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any
and all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials
133
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees
in connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee
shall be designated as a party or a potential party thereto, and any fees or
expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby (including
Lenders' agreement to make the Loans hereunder or the use or intended use of
the proceeds thereof or the issuance of Letters of Credit hereunder or the
use or intended use of any thereof, or any enforcement of any of the Loan
Documents (including any sale of, collection from, or other realization upon
any of the Collateral or the enforcement of the Guaranties) or (ii) any
Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default referred to in Sections 8.6 or 8.7 or, with
the consent of the Requisite Lenders, upon the occurrence of any other Event of
Default, each Lender is, to the fullest extent permitted by applicable law,
hereby authorized by Company at any time or from time to time, without notice to
Company or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender to or for the credit or
the account of Company against and on account of the obligations and liabilities
then due of Company to that Lender under this Agreement, the Letters of Credit
and participations therein and the other Loan Documents, including all claims of
any nature or description arising out of or connected with this Agreement, the
Letters of Credit and participations therein or any other Loan Document,
irrespective of whether or not that Lender shall have made any demand hereunder.
Company hereby further grants to each Agent and each Lender a security interest
in all deposits and accounts maintained with such Agent or such Lender as
security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance
134
with the terms of this Agreement), by realization upon security, through the
exercise of any right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of
the aggregate amount of principal, interest, amounts payable in respect of
Letters of Credit, fees and other amounts then due and owing to that Lender
hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall
(i) notify Administrative Agent and each other Lender of the receipt of such
payment and (ii) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion
of such payment) in the Aggregate Amounts Due to the other Lenders so that
all such recoveries of Aggregate Amounts Due shall be shared by all Lenders
in proportion to the Aggregate Amounts Due to them; PROVIDED that if all or
part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Company or otherwise, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to
such purchasing Lender ratably to the extent of such recovery, but without
interest. Company expressly consents to the foregoing arrangement and
agrees, to the fullest extent that it may do so under applicable law, that
any holder of a participation so purchased may exercise any and all rights of
banker's lien, set-off or counterclaim with respect to any and all monies
owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision
of this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that no such amendment, modification, termination,
waiver or consent which would:
(a) modify any requirement hereunder that any particular action
be taken by all the Lenders or by Requisite Lenders shall be effective
unless consented to by each Lender;
(b) modify this subsection 10.6, change the definitions of
"Requisite Lenders" or "Pro Rata Share", increase any Commitments (other
than pursuant to the second paragraph of subsection 2.4A(iii)), reduce
any fees described in subsection 2.3 (other than the fees to Agents
referred to in subsection 2.3B), release any material Subsidiary
Guarantor from its obligations under the Guaranty, Parent from its
obligations under the Parent Guaranty, or all or substantially all of the
collateral security (except in each case as otherwise specifically
provided for in the Loan Documents), or extend the Working Capital Loan
Commitment Termination Date or the Acquisition Loan Commitment
Termination Date, shall be made without the consent of each Lender
adversely affected thereby;
135
(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan or reduce the principal amount of or rate of interest
on or fees payable in respect of any Loan or any reimbursement obligation
in respect of any Letter of Credit (which shall in each case include the
conversion of all or any part of the Obligations into equity of any Loan
Party), shall be made without the consent of the Lender which has made
such Loan or, in the case of a reimbursement obligation in respect of any
Letter of Credit, the Issuer owed, and those Lenders participating in,
such reimbursement obligation;
(d) affect adversely the interests, rights or obligations of any
Agent, any Issuer or the Swing Line Lender (in its capacity as Agent,
Issuer or Swing Line Lender), unless consented to by such Agent, Issuer
or Swing Line Lender, as the case may be; or
(e) effect any amendment, modification or waiver that by its
terms adversely affects the rights of Lenders participating in any
tranche differently from those of Lenders participating in other
tranches, without the consent of the holders of at least 51% of the
aggregate amount of Loans or Commitments, as the case may be, outstanding
under the tranche or tranches affected by such amendment, modification or
waiver.
Administrative Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Company in any case shall entitle Company to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Company, on Company.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; PROVIDED that notices to Agents shall not be effective
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and Agents, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to
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each other party, such other address as shall be designated by such party in
a written notice delivered to Administrative Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Company set forth in subsections 2.6D, 2.7,
3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
None of Agents or Lenders shall be under any obligation to marshal
any assets in favor of Company or any other party or against or in payment of
any or all of the Obligations. To the extent that Company makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent for the
benefit of Lenders), or any of Agents or Lenders enforce any security interests
or exercise their rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
137
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being understood
that Lenders' rights of assignment are subject to subsection 10.1). Neither
Company's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX
XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
138
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW
VENUE OF SUCH COURTS;
(II) TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that each
has already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
139
IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO
THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the
event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.19 CONFIDENTIALITY.
Each Lender, Issuing Lender, Agent and Arranger shall hold all
non-public information obtained in connection with this Agreement or obtained
by it based on a review of the books and records of the Company or any of its
Subsidiaries in accordance with such Lender's, Issuing Lender's, Agent's or
Arranger's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices, it being
understood and agreed by Company that in any event a Lender may make
disclosures to Affiliates and professional advisors of such Lender or
disclosures reasonably required by (a) any bona fide assignee, transferee or
participant in connection with the contemplated assignment or transfer by
such Lender of any Loans or any participations therein or (b) by any direct
or indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors provided that such contractual
counterparty or professional advisor to such contractual counterparty agrees
in writing to keep such information confidential to the same extent required
of the Lenders hereunder, or disclosures required or requested by any
governmental agency or representative thereof or pursuant to legal process;
PROVIDED that, (x) unless specifically prohibited by applicable law or court
order, each Lender, Issuing Lender, Agent and Arranger shall promptly notify
Company of any request by any governmental agency or representative thereof
(other than any request by the National Association of Insurance
Commissioners or any request in connection with any examination of the
financial condition of such Lender by any governmental agency) for disclosure
of any such non-public information prior to disclosure of such information
and (y) prior to any such disclosure pursuant to this Section 10.19 each
Lender, each Issuing Lender, each Agent and the Arranger, as the case may be,
shall require any such BONA FIDE transferee, participant and assignee to
agree to be bound by this Section 10.19 and to require such Person to require
any other Person to whom such Person discloses any such non-public
information to be similarly bound by this Section 10.19; and PROVIDED,
FURTHER that in no event shall any Lender be obligated or required to return
any materials furnished by Company or any of its Subsidiaries except as may
be required by an order of a court of competent jurisdiction and to the
extent set forth therein.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of
a counterpart hereof by each of the
140
parties hereto and receipt by Company and Agents of written or telephonic
notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
141
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
XXXXXXX FINANCE CO.
By:
--------------------------------
President and
Chief Executive Officer
Notice Address:
--------------------------------
--------------------------------
Attention:
-----------------
LENDERS:
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative Agent
By:
--------------------------------
Title:
--------------------------------
Notice Address:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
-----------------
DLJ CAPITAL FUNDING, INC., individually and as
Syndication Agent
By:
--------------------------------
Title:
--------------------------------
Notice Address:
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention:
------------------
142
[Lenders Signature Blocks and Notice Addresses]
143
U.S. $130,000,000
CREDIT AGREEMENT
DATED AS OF AUGUST 28, 1998
AMONG
XXXXXXX FINANCE CO.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
DLJ CAPITAL FUNDING, INC.,
AS SYNDICATION AGENT,
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT,
ARRANGED BY:
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX FINANCE CO.
CREDIT AGREEMENT
TABLE OF CONTENTS
Section 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.2 Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement . . . . . . . . . . . . . . . . 32
1.3 Other Definitional Provisions and Rules of
Construction. . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . . . . . . . . . . . . . 34
2.1 Commitments; Making of Loans; Notes. . . . . . . . . . . . . . . . . 34
2.2 Interest on the Loans. . . . . . . . . . . . . . . . . . . . . . . . 43
2.3 Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.4 Repayments, Prepayments and Reductions in Loan Commitments; General
Provisions Regarding Payments . . . . . . . . . . . . . . . . . 52
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2.6 Special Provisions Governing Eurodollar Rate Loans.. . . . . . . . . 63
2.7 Increased Costs; Taxes; Capital Adequacy.. . . . . . . . . . . . . . 65
2.8 Obligation of Lenders and Issuing Lenders to
Mitigate; Replacement of Lender . . . . . . . . . . . . . . . . 70
Section 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . 71
3.1 Issuance of Letters of Credit and Lenders' Purchase
of Participations Therein . . . . . . . . . . . . . . . . . . . 71
3.2 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . . . . 73
3.3 Drawings and Reimbursement of Amounts Paid Under
Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . 74
3.4 Obligations Absolute.. . . . . . . . . . . . . . . . . . . . . . . . 76
3.5 Indemnification; Nature of Issuing Lenders' Duties.. . . . . . . . . 77
3.6 Increased Costs and Taxes Relating to Letters of
Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT. . . . . . . . . . . . . . 79
4.1 Conditions to Initial Loans. . . . . . . . . . . . . . . . . . . . . 79
4.2 Conditions to Loans Made on Merger Date. . . . . . . . . . . . . . . 84
4.3 Conditions to Acquisition Loans. . . . . . . . . . . . . . . . . . . 87
i
4.4 Conditions to Loans Made on Each Funding Date. . . . . . . . . . . . 87
4.5 Conditions to Letters of Credit. . . . . . . . . . . . . . . . . . . 88
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 88
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries . . . . . . . . . . . . . . . . . . . 88
5.2 Authorization of Borrowing, etc. . . . . . . . . . . . . . . . . . . 89
5.3 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . 90
5.4 No Material Adverse Change; No Restricted Junior
Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.5 Title to Properties; Liens; Real Property. . . . . . . . . . . . . . 90
5.6 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . . . . . . 91
5.7 Payment of Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . 91
5.8 Governmental Regulation. . . . . . . . . . . . . . . . . . . . . . . 91
5.9 Securities Activities. . . . . . . . . . . . . . . . . . . . . . . . 92
5.10 Employee Benefit Plans.. . . . . . . . . . . . . . . . . . . . . . . 92
5.11 Environmental Protection.. . . . . . . . . . . . . . . . . . . . . . 92
5.12 Employee Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . 93
5.13 Solvency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
5.14 Matters Relating to Collateral.. . . . . . . . . . . . . . . . . . . 93
5.15 Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
5.16 Year 2000 Compliance.. . . . . . . . . . . . . . . . . . . . . . . . 95
Section 6. COMPANY'S AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . 95
6.1 Financial Statements and Other Reports.. . . . . . . . . . . . . . . 95
6.2 Legal Existence, etc.. . . . . . . . . . . . . . . . . . . . . . . . 98
6.3 Payment of Taxes and Claims; Tax Consolidation.. . . . . . . . . . . 98
6.4 Maintenance of Properties; Insurance; Application of
Net Insurance/Condemnation Proceeds. . . . . . . . . . . . . . 99
6.5 Inspection Rights. . . . . . . . . . . . . . . . . . . . . . . . . .100
6.6 Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . . .100
6.7 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents by Certain Subsidiaries and Future Subsidiaries;
IP Collateral. . . . . . . . . . . . . . . . . . . . . . . . .101
6.8 Future Leased Property and Future Acquisitions of
Real Property: Future Acquisition of
Other Property.. . . . . . . . . . . . . . . . . . . . . . . .102
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6.9 Merger.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
6.10 Second Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . .103
6.11 Year 2000 Compliance.. . . . . . . . . . . . . . . . . . . . . . . .103
6.12 PTO and CO Cover Sheets, Etc.. . . . . . . . . . . . . . . . . . . .104
6.13 Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104
Section 7. COMPANY'S NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . .104
7.1 Indebtedness.. . . . . . . . . . . . . . . . . . . . . . . . . . . .105
7.2 Liens and Related Matters. . . . . . . . . . . . . . . . . . . . . .106
7.3 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
7.4 Contingent Obligations.. . . . . . . . . . . . . . . . . . . . . . .109
7.5 Restricted Junior Payments.. . . . . . . . . . . . . . . . . . . . .110
7.6 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . . .111
7.7 Restriction on Fundamental Changes; Asset Sales and
Acquisitions.. . . . . . . . . . . . . . . . . . . . . . . . .114
7.8 Consolidated Capital Expenditures. . . . . . . . . . . . . . . . . .116
7.9 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
7.10 Sales and Lease-Backs. . . . . . . . . . . . . . . . . . . . . . . .117
7.11 Sale or Discount of Receivables. . . . . . . . . . . . . . . . . . .118
7.12 Transactions with Stockholders and Affiliates. . . . . . . . . . . .118
7.13 Issuance of Subsidiary Equity. . . . . . . . . . . . . . . . . . . .118
7.14 Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . .119
7.15 Amendments or Waivers of Merger Agreement; Amendments of Documents
Relating to Subordinated Indebtedness. . . . . . . . . . . . .119
Section 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . .119
8.1 Failure to Make Payments When Due. . . . . . . . . . . . . . . . . .119
8.2 Default in Other Agreements. . . . . . . . . . . . . . . . . . . . .120
8.3 Breach of Certain Covenants. . . . . . . . . . . . . . . . . . . . .120
8.4 Breach of Warranty.. . . . . . . . . . . . . . . . . . . . . . . . .120
8.5 Other Defaults Under Loan Documents. . . . . . . . . . . . . . . . .120
8.6 Involuntary Bankruptcy; Appointment of Receiver,
etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.. . . . . . . . .121
8.8 Judgments and Attachments. . . . . . . . . . . . . . . . . . . . . .121
8.9 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . .121
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8.10 Employee Benefit Plans.. . . . . . . . . . . . . . . . . . . . . . .121
8.11 Change in Control. . . . . . . . . . . . . . . . . . . . . . . . . .122
8.12 Invalidity of Guaranties; Failure of Security;
Repudiation of Obligations.. . . . . . . . . . . . . . . . . .122
8.13 Mergers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122
Section 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124
9.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . .124
9.2 Powers and Duties; General Immunity. . . . . . . . . . . . . . . . .125
9.3 Successor Agents and Swing Line Lender.. . . . . . . . . . . . . . .128
9.4 Collateral Documents and Guaranties. . . . . . . . . . . . . . . . .129
Section 10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . .130
10.1 Assignments and Participations in Loans and Letters
of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . .130
10.2 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
10.3 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
10.4 Set-Off; Security Interest in Deposit Accounts.. . . . . . . . . . .134
10.5 Ratable Sharing. . . . . . . . . . . . . . . . . . . . . . . . . . .134
10.6 Amendments and Waivers.. . . . . . . . . . . . . . . . . . . . . . .135
10.7 Independence of Covenants. . . . . . . . . . . . . . . . . . . . . .136
10.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
10.9 Survival of Representations, Warranties and Agreements . . . . . . .137
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative. . . . . . . .137
10.11 Marshalling; Payments Set Aside. . . . . . . . . . . . . . . . . . .137
10.12 Severability.. . . . . . . . . . . . . . . . . . . . . . . . . . . .137
10.13 Obligations Several; Independent Nature of Lenders' Rights . . . . .138
10.14 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
10.15 Applicable Law.. . . . . . . . . . . . . . . . . . . . . . . . . . .138
10.16 Successors and Assigns.. . . . . . . . . . . . . . . . . . . . . . .138
10.17 Consent to Jurisdiction and Service of Process.. . . . . . . . . . .138
10.18 Waiver of Jury Trial.. . . . . . . . . . . . . . . . . . . . . . . .139
10.19 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . .140
10.20 Counterparts; Effectiveness. . . . . . . . . . . . . . . . . . . . .140
Signature pages S-1
iv
EXHIBITS
I. FORM OF NOTICE OF BORROWING
II. FORM OF NOTICE OF CONVERSION/CONTINUATION
III. FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV. FORM OF TRANCHE A TERM NOTE
V. FORM OF TRANCHE B TERM NOTE
VI. FORM OF WORKING CAPITAL NOTE
VII. FORM OF SWING LINE NOTE
VIII. FORM OF ACQUISITION NOTE
IX. FORM OF COMPLIANCE CERTIFICATE
X-1. FORM OF CLOSING DATE OPINION OF XXXXX XXXX & XXXXXXXX
X-2 FORM OF CLOSING DATE OPINION OF SPOLIN & XXXXXXXXX
XI. FORM OF OPINION OF O'MELVENY & XXXXX LLP
XII. FORM OF ASSIGNMENT AGREEMENT
XIII. FORM OF CERTIFICATE RE NON-BANK STATUS
XIV. FORM OF FINANCE CO. PLEDGE AGREEMENT
XV. FORM OF DAH PLEDGE AGREEMENT
XVI. FORM OF SECURITY AGREEMENT
XVII FORM OF ACQUISITION CO. GUARANTY
XVIII. FORM OF SUBSIDIARY GUARANTY
XIX. FORM OF SUBSIDIARY PLEDGE AGREEMENT
XX. FORM OF PARENT PLEDGE AGREEMENT
XXI. FORM OF PARENT GUARANTY
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XXII. FORM OF SOLVENCY CERTIFICATE
XXIII. FORM OF COLLATERAL ACCOUNT AGREEMENT
XXIV-1. FORM OF MERGER DATE OPINION OF XXXXX XXXX & XXXXXXXX
XXIV-2. FORM OF MERGER DATE OPINION OF SPOLIN & XXXXXXXXX
XXV. FORM OF MERGER DATE OPINION OF COMPANY LOCAL COUNSEL
XXVI. FORM OF PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
XXVII. FORM OF INVESTMENT ACCOUNT AGREEMENT
XXVIII. FORM OF INTERCOMPANY NOTE RELATING TO TRANCHE A TERM LOANS AND
WORKING CAPITAL LOANS
XXIX. FORM OF INTERCOMPANY NOTE RELATING TO TRANCHE B TERM LOANS
XXX. FORM OF INTERCOMPANY DEBT SUBORDINATION AGREEMENT
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SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES OF COMPANY
5.5 REAL PROPERTY
5.6 LITIGATION
5.11 ENVIRONMENTAL MATTERS
6.8 MERGER DATE MORTGAGED PROPERTIES
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.12 CERTAIN AGREEMENTS WITH AFFILIATES
vii