CREDIT AGREEMENT
among
AMERICAN LAWYER MEDIA HOLDINGS, INC.,
AMERICAN LAWYER MEDIA, INC.,
VARIOUS BANKS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Bank,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
BANCBOSTON SECURITIES INC.,
as Syndication Agent,
and
BANCAMERICA ROBERTSON STEPHENS
and
BANCBOSTON SECURITIES INC.,
as Arrangers
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Dated as of March 25, 1998
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TABLE OF CONTENTS
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ARTICLE I.
DEFINITIONS...............................................................................................1
1.01 Defined Terms........................................................................................1
1.02 Other Definitional Provisions.......................................................................24
(a) Defined Terms...............................................................................24
(b) The Agreement...............................................................................24
(c) Certain Common Terms........................................................................24
(d) Performance; Time...........................................................................25
(e) Contracts...................................................................................25
(f) Laws........................................................................................25
1.03 Accounting Principles...............................................................................25
ARTICLE II.
THE CREDIT FACILITIES....................................................................................25
2.01 Amounts and Terms of Commitments....................................................................25
2.02 Loan Accounts and Register; Notes...................................................................26
2.03 Procedure for Borrowing.............................................................................26
2.04 Conversion and Continuation Elections for Revolving Borrowings......................................27
2.05 Reduction and Termination of Commitments............................................................29
2.06 Voluntary Prepayments...............................................................................31
2.07 Mandatory Prepayments...............................................................................31
2.08 Repayment of Principal..............................................................................32
2.09 Interest............................................................................................32
2.10 Fees................................................................................................34
2.11 Computation of Fees and Interest....................................................................35
2.12 Payments by the Borrower............................................................................35
2.13 Payments by the Banks to the Administrative Agent...................................................36
2.14 Sharing of Payments, etc............................................................................37
2.15 Security and Guaranties.............................................................................38
ARTICLE III.
THE LETTERS OF CREDIT....................................................................................38
3.01 The Letter of Credit Subfacility....................................................................38
3.02 Issuance, Amendment and Renewal of Letters of Credit................................................39
3.03 Participations, Drawings and Reimbursements.........................................................41
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3.04 Repayment of Participations.........................................................................42
3.05 Role of the Issuing Bank............................................................................43
3.06 Obligations Absolute................................................................................44
3.07 Cash Collateral Pledge..............................................................................45
3.08 Letter of Credit Fees...............................................................................45
3.09 Uniform Customs and Practice........................................................................46
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY...................................................................46
4.01 Taxes...............................................................................................46
4.02 Illegality..........................................................................................50
4.03 Increased Costs and Reduction of Return.............................................................51
4.04 Funding Losses......................................................................................51
4.05 Inability to Determine Rates........................................................................52
4.06 Increased Costs on Eurodollar Loans.................................................................52
4.07 Certificates of Banks...............................................................................53
4.08 Change of Lending Office, Replacement Bank, etc.....................................................53
4.09 Survival............................................................................................54
ARTICLE V.
CONDITIONS PRECEDENT.....................................................................................54
5.01 Conditions to Revolving Loans and Letters of Credit on the Closing Date.............................54
(a) Credit Agreement............................................................................54
(b) Resolutions; Incumbency.....................................................................54
(c) Articles of Incorporation; By-laws and Good Standing........................................55
(d) Subsidiary Guaranty.........................................................................55
(e) Pledge Agreement............................................................................55
(f) Security Agreement..........................................................................56
(g) Legal Opinions..............................................................................56
(h) Payment of Fees and Expenses................................................................56
(i) Certificates................................................................................57
(j) Solvency Certificate........................................................................57
(k) Adverse Change..............................................................................57
(l) Governmental and Third Party Approvals......................................................57
(m) Litigation..................................................................................57
(n) Shareholders Agreements, Management Agreements and Tax Sharing Agreement...................58
(o) Financial Statements........................................................................58
(p) Insurance...................................................................................58
5.02 Conditions to all Borrowings and the Issuance of any Letters of Credit..............................58
(a) Notice......................................................................................58
(b) Continuation of Representations and Warranties..............................................58
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(c) No Existing Default.........................................................................59
(d) No Material Adverse Effect..................................................................59
(e) Financial Statements........................................................................59
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES...........................................................................59
6.01 Existence and Power.................................................................................59
6.02 Authorization; No Contravention.....................................................................60
6.03 Governmental Authorization..........................................................................60
6.04 Binding Effect......................................................................................60
6.05 Litigation..........................................................................................61
6.06 No Default..........................................................................................61
6.07 ERISA Compliance....................................................................................61
6.08 Use of Proceeds; Margin Regulations.................................................................62
6.09 Title to Properties.................................................................................62
6.10 Taxes...............................................................................................62
6.11 Financial Statements................................................................................62
6.12 Securities Law, etc.; Compliance....................................................................63
6.13 Governmental Regulation.............................................................................63
6.14 Labor Controversies.................................................................................63
6.15 Subsidiaries........................................................................................63
6.16 Patents, Trademarks, etc............................................................................63
6.17 Accuracy of Information.............................................................................63
6.18 Hazardous Materials.................................................................................63
6.19 Collateral Documents................................................................................64
6.20 Solvency............................................................................................65
6.21 Representations and Warranties in the other Documents...............................................65
6.22 Capitalization......................................................................................65
6.23 Special Purpose Corporation.........................................................................66
6.24 Insurance...........................................................................................66
ARTICLE VII.
AFFIRMATIVE COVENANTS....................................................................................66
7.01 Financial Statements................................................................................66
7.02 Certificates; Other Information.....................................................................67
7.03 Notices.............................................................................................68
7.04 Books, Records and Inspections; Annual Meetings.....................................................70
7.05 Maintenance of Property; Insurance..................................................................70
7.06 Corporate Franchises................................................................................71
7.07 Compliance with Law; Contractual Obligations........................................................71
7.08 Payment of Taxes....................................................................................71
7.09 Contributions.......................................................................................71
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7.10 End of Fiscal Years; Fiscal Quarters................................................................72
7.11 Additional Security; Further Assurances.............................................................72
7.12 Foreign Subsidiaries Security.......................................................................72
7.13 Use of Proceeds; Margin Regulations.................................................................73
ARTICLE VIII.
NEGATIVE COVENANTS.......................................................................................73
8.01 Liens...............................................................................................74
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc..............................................76
8.03 Dividends...........................................................................................78
8.04 Indebtedness........................................................................................79
8.05 Advances, Investments and Loans.....................................................................80
8.06 Transactions with Affiliates........................................................................82
8.07 Consolidated Interest Coverage Ratio................................................................83
8.08 Consolidated Fixed Charge Coverage Ratio............................................................83
8.09 Maximum Total Leverage Ratio........................................................................84
8.10 Limitation on Voluntary Payments and Modification of Certain Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc...................................................................................84
8.11 Limitation on Certain Restrictions on Subsidiaries..................................................85
8.12 Limitation on Issuance of Capital Stock.............................................................85
8.13 Business............................................................................................86
8.14 Limitation on Creation of Subsidiaries..............................................................86
ARTICLE IX
EVENT OF DEFAULT
9.01 Event of Default....................................................................................86
9.02 Remedies............................................................................................89
9.03 Rights Not Exclusive................................................................................89
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ARTICLE X
THE GUARANTY.............................................................................................89
10.01 Guaranty from Holdings.............................................................................90
ARTICLE XI
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
THE ISSUING BANK, THE SYNDICATION AGENT AND THE ARRANGERS................................................94
11.01 Appointment and Authorization......................................................................94
11.02 Delegation of Duties...............................................................................94
11.03 Liability of Agent.................................................................................94
11.04 Reliance by Agent..................................................................................95
11.05 Notice of Default..................................................................................95
11.06 Credit Decision....................................................................................96
11.07 Indemnification....................................................................................96
11.08 Agent in Individual Capacity.......................................................................97
11.09 Successor Agent....................................................................................97
11.09 The Arrangers and the Syndication Agent............................................................97
ARTICLE XII
MISCELLANEOUS............................................................................................98
12.01 Amendments and Waivers.............................................................................98
12.02 Notices............................................................................................99
12.03 No Waiver; Cumulative Remedies....................................................................100
12.04 Costs and Expenses................................................................................100
12.05 Indemnity.........................................................................................101
12.06 Successors and Assigns............................................................................101
12.07 Assignments, Participations, etc..................................................................102
12.08 Confidentiality...................................................................................103
12.10 Notification of Addresses, Lending Offices, etc...................................................104
12.11 Counterparts......................................................................................105
12.12 Severability......................................................................................105
12.13 No Third Parties Benefited........................................................................105
12.14 Governing Law and Jurisdiction....................................................................105
12.15 Waiver of Jury Trial..............................................................................105
12.16 Domicile of Loans.................................................................................106
12.17 Domicile of Loans.................................................................................106
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SCHEDULE 1.01(a) Lending Offices
SCHEDULE 1.01(b) Revolving Commitments
SCHEDULE 1.01(c) Subsidiary Guarantors
SCHEDULE 6.07 Plans
SCHEDULE 6.15 Subsidiaries
SCHEDULE 6.24 Insurance
SCHEDULE 8.01 Existing Liens
SCHEDULE 8.04 Existing Indebtedness
SCHEDULE 8.05 Existing Investments
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Notice of Conversion/Continuation
EXHIBIT C Form of Pledge Agreement
EXHIBIT D Form of Subsidiary Guaranty
EXHIBIT E Form of Guarantor Supplement
EXHIBIT F Form of Security Agreement
EXHIBIT G Form of Total Leverage Ratio Certificate
EXHIBIT H Form of Jones, Day, Reavis & Pogue Opinion
EXHIBIT I Form of White & Case LLP Opinion
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Assignment and Acceptance
EXHIBIT L Form of Intercompany Note
EXHIBIT M Form of Subordination Provisions
EXHIBIT N Form of Solvency Certificate
EXHIBIT O Form of Section 4.01(f)(i) Certificate
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of March 25, 1998, among AMERICAN LAWYER
MEDIA HOLDINGS, INC., a Delaware corporation ("Holdings"), AMERICAN LAWYER
MEDIA, INC., a Delaware corporation (the "Borrower"), the several lenders from
time to time party to this Agreement (the "Banks"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Issuing Bank, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent, BANCBOSTON SECURITIES INC., as
Syndication Agent, and BANCAMERICA ROBERTSON STEPHENS and BANCBOSTON SECURITIES
INC., as Arrangers.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein,
the Banks are willing to make available to the Borrower the revolving credit
facility provided for herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Defined Terms. As used in this Agreement, the capitalized terms in
the preamble and the recitals hereto shall have the meanings therein given them,
and the following words and terms shall have the meanings specified below:
"Acquired Entity or Business" has the meaning specified in the
definition of "Consolidated Net Income".
"Acquisition" means the acquisition by the Borrower of all the issued
and outstanding shares of capital stock of NLP pursuant to, and in accordance
with the terms of, the Acquisition Agreement.
"Acquisition Agreement" means the Purchase Agreement, dated as of
October 23, 1997, by and among Boston Ventures Limited Partnership IV, Boston
Ventures Limited Partnership IVA, James A. Finkelstein and the Borrower.
"Acquisition Documents" means the Acquisition Agreement and all other
documentation entered into pursuant to the Acquisition Agreement.
"Additional Security Documents" has the meaning specified in Section
7.11.
"Adjusted Consolidated EBITDA" means, for any period, Consolidated
EBITDA for such period, adjusted by adding thereto up to $10,000,000 of
Development Costs actually incurred by Holdings and its Subsidiaries for such
period, provided that such Development Costs shall only be added back to the
extent that (i) same reduced Consolidated Net Income for such period and (ii) as
of the last day of such period, Holdings and its Subsidiaries had unrestricted
cash and Cash Equivalents on their balance sheet in an amount equal to the
amount of such Development Costs plus $3,000,000 (net of the aggregate
outstanding principal amount of Revolving Loans as of the last day of such
period (other than Revolving Loans incurred to finance a Permitted Acquisition
and to pay the fees and expenses related thereto)).
"Adjusted Consolidated Net Income" means, for any period, Consolidated
Net Income for such period plus, without duplication, the amount of all net
non-cash charges (including, without limitation, depreciation, amortization,
deferred tax expense and non-cash interest expense, but excluding any net
non-cash charges reflected in Adjusted Consolidated Working Capital) and net
non-cash losses which were included in arriving at Consolidated Net Income for
such period less the amount of all net non-cash gains (exclusive of items
reflected in Adjusted Consolidated Working Capital) included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" means, at any time,
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"Adjustment Date" means (A) the earlier of (x) the date which is 90
days after Holdings' fiscal quarter ending December 31, 1998 and (y) the date
which is two Business Days after Holdings has delivered a Total Leverage Ratio
Certificate to the Administrative Agent in accordance with Section 12.02 as of
the end of a fiscal quarter (the "First Adjustment Date") and (B) after the
First Adjustment Date, the earlier of (x) each date which is 45 days after the
end of a fiscal quarter of Holdings (or, in the case of the fourth fiscal
quarter of Holdings, 90 days after the end of such fiscal quarter) and (y) the
date which is two Business Days after Holdings has delivered a Total Leverage
Ratio Certificate to the Administrative Agent in accordance with Section 12.02
as of the end of a fiscal quarter.
"Administrative Agent" means Bank of America in its capacity as agent
for the Banks hereunder, and any successor agent.
"Administrative Agent's Payment Office" means the address for payments
set forth on the signature page hereto in relation to the Administrative Agent
or such other address as the Administrative Agent may from time to time specify
in accordance with Section 12.02.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or (ii) that directly or indirectly owns more
than 5% of any class of the capital stock of, or equity interests in, such
Person. A Person shall be deemed to control another Person if such
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Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means Bank of America, in its capacity as Administrative Agent
and as Collateral Agent, in each case for the Banks hereunder, and shall include
any successor to the Agent appointed pursuant to Article XI.
"Agent-Related Persons" has the meaning specified in Section 11.03.
"Aggregate Revolving Commitment" means the combined Revolving
Commitments of the Banks in the initial principal amount of $40,000,000 as such
amount may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Credit Agreement as from time to time amended,
modified or supplemented.
"ALM Acquisition" means Cranberry Partners, LLC (the predecessor of
American Lawyer Media Holdings, Inc.).
"Applicable Excess Cash Flow Percentage" means 50%, provided that so
long as no Default or Event of Default then exists and the Consolidated Total
Leverage Ratio on the respective Excess Cash Flow Payment Date (before giving
effect to any such repayment on such date) is less than 5.00:1.00 as
demonstrated in the Total Leverage Ratio Certificate delivered to the
Administrative Agent in accordance with Section 12.02 at such time, then the
foregoing percentage shall instead be 25%.
"Applicable Margin" means the margin to be added to the Base Rate or
the Eurodollar Rate, as the case may be, in accordance with Section 2.09(a).
"Arranger" means each of BancAmerica Robertson Stephens and BancBoston
Securities Inc.
"Asset Sale" means the direct or indirect sale, lease (other than
operating leases entered into in the ordinary course of business), transfer,
conveyance or other disposition (including, without limitation, dispositions
pursuant to sale and leaseback transactions), in a single transaction or a
series of transactions, by Holdings or any of its Subsidiaries to any Person
(other than to Holdings or any of its Wholly-Owned Subsidiaries) of any property
or assets of Holdings or any of its Subsidiaries, other than sales of assets
pursuant to Sections 8.02(ii), (iii), (vii), (viii), (x) and (xi).
"Assignee" has the meaning specified in Section 12.07(a).
"Assignment and Acceptance" has the meaning specified in Section
12.07(a).
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"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
"Bank Affiliate" means an Affiliate of a Bank, including, in the case
of any Bank that is a fund that invests in loans, any other fund that invests in
loans and is managed or advised by the same investment advisor of such Bank or
by an Affiliate of such investment advisor.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association, in its individual capacity.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Banks" has the meaning specified in the preamble hereto i.e. at any
time, each Bank with a Revolving Commitment or with outstanding Revolving Loans.
"Base Rate" means, for any day, the higher of (a) the Reference Rate or
(b) the Federal Funds Rate plus 1/2%, in each case as in effect for such day.
"Base Rate Loan" means each Revolving Loan that bears interest based on
the Base Rate.
"Borrower" has the meaning specified in the preamble hereto.
"Borrower Senior Note Documents" means the Borrower Senior Note
Indenture, the Borrower Senior Notes and all other documents and agreements
executed and delivered pursuant to the Borrower Senior Note Indenture.
"Borrower Senior Note Exchange Offer" means the exchange offer for the
Borrower Senior Notes pursuant to the applicable Borrower Senior Note Documents
for new Borrower Senior Notes which have been registered under the Securities
Act of 1933, as amended.
"Borrower Senior Note Indenture" means the Indenture, dated as December
22, 1997, among the Borrower, the Subsidiary Guarantors and The Bank of New
York, as trustee, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Borrower Senior Notes" means the Borrower's 9-3/4% senior notes due
2007 (which term includes the senior notes of the Borrower issued as part of the
Borrower Senior Note Exchange Offer).
"Borrowing" means a borrowing hereunder consisting of Revolving Loans
made to the Borrower on the same Borrowing Date by the Banks ratably according
to their respective Revolving Commitment Percentages and in the case of
Eurodollar Loans, having the same
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Interest Periods, provided that any Base Rate Loans incurred pursuant to Section
4.02 shall be considered as part of the related Borrowing of Eurodollar Loans.
"Borrowing Date" means, in relation to any Revolving Loan, the date of
the borrowing of such Revolving Loan as specified in the relevant Notice of
Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in San Francisco, Chicago or New York City are
authorized or required by law to close and, if such term is used in relation to
any Eurodollar Loan or the Interest Period therefor, any such day on which
dealings are carried on by and between banks in Dollar deposits in the
applicable interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law (but with which a Bank
customarily complies) regarding capital adequacy of any Bank or of any
corporation controlling a Bank.
"Capital Expenditures" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which is capitalized under GAAP on a consolidated balance sheet of
such Person and its Subsidiaries.
"Capital Lease" has the meaning specified in the definition of "Capital
Lease Obligations".
"Capital Lease Obligations" means all monetary obligations of Holdings
or any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease ("Capital Lease").
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Banks, as collateral for the Letter of Credit Obligations, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Issuing Banks (which
documents are hereby consented to by the Banks). Derivatives of such term shall
have corresponding meanings. Cash collateral shall be invested in Cash
Equivalents of a tenor reasonably satisfactory to the Administrative Agent and
as instructed by the Borrower, which Cash Equivalents shall be held in the name
of the Borrower and under the control of the Administrative Agent in a manner
reasonably satisfactory to the Collateral Agent.
"Cash Equivalents" means any or all of the following: (i) obligations
of, or guaranteed as to interest and principal by, the United States Government
maturing within one year after the date on which such obligations are purchased;
(ii) marketable direct obligations issued by any State of the United States or
any political subdivision of any such State or any public instrumentality
thereof maturing within one year after the date on which such obligations
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are purchased and, at the time of such purchase, have one of the two highest
ratings obtainable from either Moody's or S&P; (iii) open market commercial
paper of any corporation (other than Holdings, the Borrower or any of its
Subsidiaries) incorporated under the laws of the United States or any State
thereof or the District of Columbia rated P-1 or its equivalent by Moody's or
A-1 or its equivalent or higher by S&P; (iv) time deposits or certificates of
deposit maturing within one year after the issuance thereof issued by commercial
banks organized under the laws of any country which is a member of the OECD and
having a combined capital and surplus in excess of $500,000,000 or which is a
Bank; (v) repurchase agreements with a term of not more than seven days with
respect to securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause (iv) above;
(vi) bankers' acceptances with maturities not exceeding one year and overnight
bank deposits in each case with an office of a bank or trust company meeting the
criteria specified in clause (iv) above; and (vii) money market, mutual or
similar funds substantially all of whose investments are comprised of the
investments described in clauses (i) through (vi) above and which have net
assets of not less than $500,000,000 and have at least one of the two highest
ratings obtainable from either Moody's or S&P.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. ss. 9601 et seq.
"Change of Control" means (a) the Permitted Holders shall cease to own
on a fully diluted basis in the aggregate at least 51% of the economic and
voting interest in Holdings' capital stock or (b) the Borrower shall cease to be
a direct Wholly-Owned Subsidiary of Holdings or (c) a "change of control" or
similar event shall occur under the Borrower Senior Note Documents or the
Holdings Senior Discount Note Documents.
"Closing Date" means the date on which all conditions precedent set
forth in Sections 5.01 and 5.02 have been satisfied or waived in accordance with
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" means all property with respect to which any security
interest has been granted (or purported to be granted) pursuant to any
Collateral Document, as well as all Obligations which have been Cash
Collateralized.
"Collateral Agent" means the Administrative Agent acting as collateral
agent for the Banks pursuant to the Collateral Documents.
"Collateral Documents" means the Pledge Agreement, the Subsidiary
Guaranty, the Security Agreement, each Additional Security Document and each
Guarantor Supplement.
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"Compliance Certificate" means the compliance certificate in
substantially the form of Exhibit J, to be executed by a Responsible Officer of
Holdings and delivered pursuant to Section 7.02(a).
"Consolidated Current Assets" means, at any time, the consolidated
current assets of Holdings and its Subsidiaries at such time.
"Consolidated Current Liabilities" means, at any time, the consolidated
current liabilities of Holdings and its Subsidiaries at such time, but excluding
the current portion of any Indebtedness under this Agreement and any other
long-term Indebtedness which would otherwise be included therein.
"Consolidated EBIT" means, for any period, Consolidated Net Income for
such period before Consolidated Interest Expense (calculated without regard to
the proviso contained in the definition thereof) and provision for taxes for
such period and without giving effect to (x) any extraordinary gains or losses
or (y) any gains or losses from sales of assets other than from sales of
inventory (including advertising space) sold in the ordinary course of business.
"Consolidated EBITDA" means, for any period, Consolidated EBIT for such
period, adjusted by (x) adding thereto, without duplication, the sum of (i) the
amount of all amortization of goodwill and other intangibles (including debt
issuance and other deferred financing, legal and accounting costs (including
those associated with the Transaction), depreciation and other non-cash charges
to the extent that same were deducted in arriving at Consolidated EBIT for such
period, (ii) for any Measurement Period which includes any portion of Holdings'
fiscal year 1998, up to $1,500,000 of losses in the aggregate that have been
incurred on or after January 1, 1998 and are included in such Measurement Period
to the extent relating to the on-line businesses of the Borrower or any of its
Subsidiaries existing as of January 1, 1998 and to the extent that same were
deducted in arriving at Consolidated EBIT for such period (it being understood
and agreed however, that no more than (x) $800,000 of such losses may be added
back in respect of the Measurement Period ending on June 30, 1998 and (y)
$1,200,000 of such losses may be added back in respect of the Measurement Period
ending on September 30, 1998) and (iii) for any Measurement Period which
includes any portion of Holdings' fiscal year 1997, 1998 or 1999 and in which
the Borrower or any of its Subsidiaries acquired an Acquired Entity or Business
pursuant to a Permitted Acquisition, up to $1,500,000 of losses in the aggregate
that have been incurred by all such Acquired Entities or Businesses and are
included in such Measurement Period to the extent relating to the on-line
businesses of such Acquired Entities or Businesses and to the extent that such
losses were deducted in arriving at Consolidated EBIT for such period, although
no such losses of any Acquired Entity or Business shall be added back pursuant
to this clause (iii) if the revenues generated by the on-line business of such
Acquired Entity or Business accounted for more that 20% of the aggregate
revenues of such Acquired Entity or Business for such Measurement Period and (y)
subtracting therefrom any cash expenses, cash charges or cash payments arising
from any non-cash expenses or non-cash charges that were added back to
Consolidated EBITDA pursuant to clause (x)(i) above in a previous period;
provided that, for the purposes of determining the Consolidated Total Leverage
Ratio, and subject to the further proviso below, (x) in the case of the
Measurement Period ending
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on June 30, 1998, Consolidated EBITDA for such Measurement Period shall be the
sum of (A) Holdings' and its Subsidiaries' pro forma Consolidated EBITDA for the
period July 1, 1997 to December 31, 1997 less Internet Services for such period
(with such amounts to be calculated in the same manner as in the Offering
Memorandum dated December 17, 1997 relating to the Holdings Senior Discount
Notes) plus (B) the actual Consolidated EBITDA for the period January 1, 1998 to
June 30, 1998, as calculated above in this definition and (y) in the case of the
Measurement Period ending on September 30, 1998, Consolidated EBITDA for such
Measurement Period shall be the sum of (A) Holdings' and its Subsidiaries' pro
forma Consolidated EBITDA for the period September 30, 1997 to December 31, 1997
less Internet Services for such period (with such amounts to be calculated in
the same manner as in the Offering Memorandum dated December 17, 1997 relating
to the Holdings Senior Discount Notes) plus (B) the actual Consolidated EBITDA
for the period January 1, 1998 to September 30, 1998, as calculated above in
this definition, and provided, further, that the division of the Borrower
comprised of the assets of Corporate Presentations, Inc. shall be included in
the calculation of Consolidated EBITDA for the Measurement Periods ending June
30, 1998, September 30, 1998 and December 31, 1998 by taking into account the
actual EBITDA of Corporation Presentations, Inc. (calculated in a manner similar
to that set forth above but without making the adjustments described in clauses
(ii) and (iii) above) for the relevant Measurement Period ending on each such
date. Notwithstanding anything to the contrary contained above in this
definition, (x) in no event shall more than $700,000 of Internet Services (as
calculated pursuant to the Offering Memorandum referenced above) in the
aggregate be added back to Consolidated EBIT in respect of the period July 1,
1997 through December 31, 1997 and (y) in no event shall more than $300,000 of
Internet Services (as calculated pursuant to the Offering Memorandum referenced
above) in the aggregate be added back to Consolidated EBIT in respect of the
period October 1, 1997 through December 31, 1997 .
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated
Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period, the sum, without
duplication, of (i) Consolidated Interest Expense for such period, (ii) the
amount of all Capital Expenditures made by Holdings and its Subsidiaries for
such period (other than (x) Capital Expenditures to the extent financed with
equity proceeds, Asset Sale proceeds, insurance proceeds or Indebtedness (other
than with Revolving Loans) and (y) Capital Expenditures made in fiscal year 1998
but only to the extent that such Capital Expenditures were financed with
internally generated funds and so as long as the amount of cash and Cash
Equivalents held by Holdings and its Subsidiaries as of the last day of such
period equals or exceeds the amount of such Capital Expenditures made by
Holdings and its Subsidiaries during fiscal year 1998 (net of the aggregate
outstanding principal amount of Revolving Loans on the last day of such period),
other than Revolving Loans incurred to finance a Permitted Acquisition and to
pay the fees and expenses related thereto), (iii) the scheduled principal amount
of all amortization payments on all Indebtedness (including, without limitation,
the principal component of all Capitalized Lease Obligations but excluding the
Refinancing) of Holdings and its Subsidiaries for such period (as determined on
the first day of such period), (iv) the amount of all cash payments made by
-8-
Holdings and its Subsidiaries in respect of taxes or tax liabilities for such
period and (v) the amount of all Development Costs incurred by Holdings and its
Subsidiaries for such period.
"Consolidated Interest Coverage Ratio" means, for any period, the ratio
of (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of Holdings and its Subsidiaries for such period
(calculated without regard to any limitations on the payment thereof) plus,
without duplication, that portion of Capital Lease Obligations of Holdings and
its Subsidiaries representing the interest factor for such period, provided that
(x) the amortization of debt issuance and deferred financing, legal and
accounting costs with respect to this Agreement, the Borrower Senior Notes and
the Holdings Senior Discount Notes, (y) all fees and expenses incurred in
connection with the Transaction and (z) all interest expense on the Holdings
Senior Discount Notes to the extent accrued prior to December 15, 2002, in each
case shall be excluded from Consolidated Interest Expense to the extent same
would otherwise have been included therein.
"Consolidated Net Income" means, for any period, the net income (or
loss) of Holdings and its Subsidiaries for such period, determined on a
consolidated basis (after any deduction for minority interests), provided that
(i) in determining Consolidated Net Income, the net income of any other Person
which is not a Subsidiary of Holdings or is accounted for by Holdings by the
equity method of accounting shall be included only to the extent of the payment
of cash dividends or distributions by such other Person to Holdings or a
Subsidiary thereof during such period, (ii) the net income of any Subsidiary of
the Borrower shall be excluded to the extent that the declaration or payment of
cash dividends or similar distributions by that Subsidiary of that net income is
not at the date of determination permitted by operation of its charter or any
agreement, instrument or law applicable to such Subsidiary, (iii) the net income
(or loss) of any other Person acquired by such specified Person or a Subsidiary
of such Person in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded, and (iv) in determining compliance
with Section 8.09 and in determining the Applicable Margin, the commitment fee
and the letter of credit fee hereunder there shall be included (to the extent
not already included) in determining Consolidated Net Income for any period the
net income (or loss) of any Person, business, property or asset acquired during
such period pursuant to a Permitted Acquisition and not subsequently sold or
otherwise disposed of by Holdings or one of its Subsidiaries during such period
(each such Person, business, property or asset acquired and not subsequently
disposed of during such period, an "Acquired Entity or Business"), in each case
based on the actual net income (or loss) of such Acquired Entity or Business for
the entire period (including the portion thereof occurring prior to such
acquisition).
"Consolidated Total Indebtedness" means, at any time, the principal
amount of all Indebtedness of Holdings and its Subsidiaries at such time
(excluding the Holdings Senior Discount Notes) determined on a consolidated
basis to the extent that such Indebtedness would be accounted for as debt on the
liability side of a balance sheet in accordance with GAAP plus, without
duplication, (i) the maximum amount available to be drawn under all letters of
credit
-9-
(including any Letters of Credit), bankers acceptances and similar obligations
issued for the account of Holdings and its Subsidiaries and all unpaid drawings
or reimbursement obligations in respect thereof, (ii) the principal amount of
all bonds issued by Holdings and its Subsidiaries in connection with workers'
compensation obligations, lease obligations, surety and similar obligations, and
(iii) the amount of all Contingent Obligations of Holdings and its Subsidiaries
determined on a consolidated basis in respect of Indebtedness of other Persons
of the type described above in this definition.
"Consolidated Total Leverage Ratio" means, at any time, the ratio of
(i) Consolidated Total Indebtedness at such time to (ii) Adjusted Consolidated
EBITDA for the Measurement Period then most recently ended.
"Contingent Obligation" means, as applied to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any direct or indirect liability of that Person with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person, whether or not contingent,
(a) to purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor; (b) to advance or
provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor; (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation; or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof; in
each case, including arrangements wherein the rights and remedies of the holder
of the primary obligation are limited to repossession or sale of certain
property of such Person. The amount of any Contingent Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Contingent Obligation is made (or if less, the stated or
determinable amount of such Contingent Obligation) or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof.
"Continuation Date" means any date on which the Borrower elects to
continue a Eurodollar Loan as a Eurodollar Loan for a further Interest Period in
accordance with the provisions of Section 2.04.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion Date" means any date on which the Borrower elects to
convert a Base Rate Loan to a Eurodollar Loan, or a Eurodollar Loan to a Base
Rate Loan, in each case in accordance with the provisions of Section 2.04.
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"Credit Party" means each of Holdings, the Borrower and each Subsidiary
Guarantor.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Development Costs" means those identifiable initial one-time start-up
costs incurred by Holdings and its Subsidiaries in connection with their
implementation (as opposed to an acquisition) of new publications such as books,
newspapers, magazines, web sites, supplements and the like and as may be
reasonably approved by Bank of America (or any successor Administrative Agent)
and the Syndication Agent.
"Disbursement Date" has the meaning specified in Section 3.03(b).
"Dividend" with respect to any Person means that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
as such or made any other distribution, payment or delivery of property or cash
to its stockholders as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Closing Date (or any options or warrants issued by such Person with respect to
its capital stock). Without limiting the foregoing, "Dividends" with respect to
any Person shall also include all cash payments made or required to be made by
such Person with respect to any stock appreciation rights plans, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.
"Dollars" and "$" each mean lawful money of the United States.
"Domestic Lending Office" has the meaning provided in the definition of
"Lending Office".
"Domestic Subsidiary" means each Subsidiary of Holdings that is
incorporated under the laws of the United States or any State or territory
thereof.
"Eligible Assignee" means and includes (a) a commercial bank or (b) a
financial institution, a fund or other "accredited investor" (as defined in
Regulation D of the Securities Act) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business.
"Environmental Claims" means all actions, suits, proceedings or claims
by any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources
-11-
damage, or otherwise alleging liability or responsibility for damages (punitive
or otherwise), cleanup, removal, remedial or response costs, restitution, civil
or criminal penalties, injunctive relief, or other type of relief, resulting
from or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property,
whether or not owned by Holdings or any of its Subsidiaries, or (b) any other
circumstances forming the reasonable basis of any violation, or alleged
violation, of any Environmental Law.
"Environmental Law" has the meaning specified in the definition of
"Hazardous Material".
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with Holdings or a Subsidiary of Holdings would be deemed
to be a "single employer" (i) within the meaning of Section 414(b), (c), (m) or
(o) of the Code or (ii) as a result of Holdings or a Subsidiary of Holdings
being a general partner of such person.
"Eurodollar Lending Office" has the meaning provided in the definition
of "Lending Office".
"Eurodollar Loan" means a Revolving Loan that bears interest based on
the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period with respect to
Eurodollar Loans comprising part of the same Borrowing, the per annum rate of
interest (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent (whose determination shall be conclusive in the absence of
manifest error) as follows:
Eurodollar Rate = Eurodollar Base Rate
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by
the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as
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"Eurocurrency liabilities"). The Eurodollar Rate for any outstanding
Eurodollar Loans shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Base Rate" means the interest rate per annum (rounded
upward to the next 1/16 of 1%) at which deposits in Dollars are offered by Bank
of America's applicable Lending Office to major banks in the offshore market at
or about 11:00 a.m. (New York City time), two Business Days before the first day
of the applicable Interest Period in an aggregate amount approximately equal to
the amount of the Loan made by Bank of America with respect to such Eurodollar
Loan and for a period of time comparable to the number of days in the applicable
Interest Period.
The determination of the Eurodollar Reserve Percentage and the
Eurodollar Base Rate by the Administrative Agent shall be conclusive in the
absence of manifest error.
"Event of Default" means any of the events or circumstances specified
in Section 9.01.
"Excess Cash Flow" means, for any period, the remainder of (a) the sum
of (i) Adjusted Consolidated Net Income for such period and (ii) the decrease,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period, minus (b) the sum of (i) the amount of all Capital
Expenditures made by Holdings and its Subsidiaries during such period (other
than Capital Expenditures to the extent financed with equity proceeds, Asset
Sale proceeds or insurance proceeds or Indebtedness (other than with Revolving
Loans), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of Holdings and its Subsidiaries during such
period (other than repayments of Revolving Loans, provided that repayments of
Revolving Loans shall be deducted in determining Excess Cash Flow if such
repayments were made as a voluntary prepayment with internally generated funds
and were accompanied by a voluntary reduction to the Aggregate Revolving
Commitment)), (iii) the amount of all Permitted Acquisitions made by Holdings
and its Subsidiaries during such period (other than Permitted Acquisitions to
the extent financed with equity proceeds, the issuance of capital stock, Asset
Sale proceeds or Indebtedness (other than with Revolving Loans) and (iv) the
increase, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period.
"Excess Cash Payment Date" means the date occurring 90 days after the
last day of each fiscal year of Holdings (beginning with its fiscal year ending
on December 31, 1998).
"Excess Cash Payment Period" means, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of Holdings.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Investors" means U.S. Equity Partners, L.P., U.S. Equity
Partners (Offshore), L.P. and/or other Affiliates of Wasserstein.
-13-
"Existing Letter of Credit" has the meaning specified in the definition
of Issuing Bank.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day the appropriate rate for such day is not
yet published in H.15(519), the rate for such day will be the arithmetic mean of
the rates for the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"First Adjustment Date" has the meaning specified in the definition of
the term "Adjustment Date".
"Foreign Subsidiary" means each Subsidiary of Holdings which is not a
Domestic Subsidiary.
"Form 4224" has the meaning specified in Section 4.01(f).
"Form 1001" has the meaning specified in Section 4.01(f).
"Form W-8" has the meaning specified in Section 4.01(f).
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and including, in the case of any Bank that is an insurance company, the
National Association of Insurance Commissioners.
"Guaranteed Creditors" means and includes each of the Administrative
Agent, the Collateral Agent, the Issuing Banks, the Banks and, in the case of
any Interest Rate Protection Agreements or Other Hedging Agreements, also any
Affiliate of a Bank which has entered into an Interest Rate Protection Agreement
or Other Hedging Agreement (even if such Bank subsequently ceases to be a Bank
under this Agreement for any reason).
-14-
"Guaranteed Obligations" means (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each note issued by, and Revolving Loans made to, the Borrower
under this Agreement and all reimbursement obligations and unpaid drawings with
respect to Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of the Borrower to the
Banks, the Administrative Agent, the Issuing Banks and the Collateral Agent now
existing or hereafter incurred under, arising out of or in connection with this
Agreement or any other Loan Document and the due performance and compliance by
the Borrower with all the terms, conditions and agreements contained in the Loan
Documents and (ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) of the Borrower owing under any Interest Rate
Protection Agreement or Other Hedging Agreement entered into by the Borrower
with any Bank or any other Guaranteed Creditor so long as such Bank or affiliate
participates in such Interest Rate Protection Agreement or Other Hedging
Agreement, and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Guarantor" means Holdings and each Subsidiary Guarantor.
"Guarantor Supplement" means a supplement to the Subsidiary Guaranty,
the Pledge Agreement and the Security Agreement substantially in the form of
Exhibit E, whereby a Subsidiary of the Borrower becomes a party to each such
Loan Document.
"Guaranty" means the guaranty of Holdings pursuant to Article X and the
Subsidiary Guaranty.
"Hazardous Material" means and includes (a) any asbestos,
urea-formaldehyde, PCBs or dioxins or other material composed of or containing
asbestos, PCBs or dioxins, (b) crude oil, any fraction thereof, and any
petroleum product, (c) any natural gas, natural gas liquids, liquefied natural
gas or other natural gas product or synthetic gas, and (d) any hazardous or
toxic waste, substance or material or pollutant or contaminant defined as such
in (or for purposes of) or that may result in the imposition of liability under
any "Environmental Law", defined as the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called "Superfund", or any other
applicable Federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree, as now or at any time hereafter in effect,
regulating, relating to, or imposing liability concerning the environment, the
impact of the environment on human health, or any hazardous or toxic waste,
substance or material or pollutant or contaminant.
"Holdings" has the meaning specified in the preamble hereto.
"Holdings Common Stock" has the meaning specified in Section 6.22.
-15-
"Holdings Senior Discount Note Documents" means the Holdings Senior
Discount Note Indenture, the Holdings Senior Discount Notes and all other
documents and agreements executed and delivered pursuant to the Holdings Senior
Discount Note Indenture.
"Holdings Senior Discount Note Exchange Offer" means the exchange offer
for the Holdings Senior Discount Notes pursuant to the applicable Holdings
Senior Discount Note Documents for new Holdings Senior Discount Notes which have
been registered under the Securities Act of 1933, as amended.
"Holdings Senior Discount Note Indenture" means the Indenture, dated as
of December 22, 1997, between Holdings and The Bank of New York, as trustee, as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Holdings Senior Discount Notes" means Holdings 12-1/4% senior discount
notes due 2008.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
ordinary course purchase price adjustments); (c) all reimbursement or payment
obligations with respect to letters of credit or non-contingent reimbursement or
payment obligations with respect to bankers' acceptances and similar documents;
(d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness created or
arising under any conditional sale or other title retention agreement or sales
of accounts receivable, in any such case with respect to property acquired by
the Person (even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of such
property); (f) all Capital Lease Obligations; (g) all net obligations with
respect to Interest Rate Protection Agreements and Other Hedging Agreements; (h)
all indebtedness referred to in clauses (a) through (g) above and clause (i)
below secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
valued, in the case of Indebtedness not assumed, at the lesser of the amount of
such obligation and the fair market value of the encumbered property or asset;
and (i) all Contingent Obligations. Notwithstanding the foregoing, Indebtedness
shall not include trade payables and accrued expenses incurred by any Person in
accordance with customary practices and in the ordinary course of business of
such Person.
"Indemnified Liabilities" has the meaning provided in Section 12.05.
"Indemnified Person" has the meaning provided in Section 12.05.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors or similar proceedings, or
-16-
(b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of
its creditors generally; in each case undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Intercompany Loan" has the meaning provided in Section 8.05(xi).
"Intercompany Note" means a promissory note in the form of Exhibit L.
"Interest Payment Date" means, (a) with respect to any Base Rate Loan,
the last day of the last calendar month of each calendar quarter and the
Revolving Termination Date, and (b) with respect to any Eurodollar Loan, the
last day of each Interest Period applicable to such Eurodollar Loan and the date
such Eurodollar Loan is repaid or prepaid; provided, however, that if any
Interest Period for any Eurodollar Loan exceeds three months, then also the date
which falls three months after the beginning of such Interest Period and, if
applicable, at three month intervals thereafter shall also be an "Interest
Payment Date".
"Interest Period" means, in relation to any Eurodollar Loan, the period
commencing on the applicable Borrowing Date or any Conversion Date or
Continuation Date with respect thereto and ending on the date one, two, three or
six months thereafter, as selected or deemed selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation, provided that:
(i) if any Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month which is one, two, three or six months, as
the case may be, after the calendar month in which such Interest Period began;
and
(iii) no Interest Period shall extend beyond the Revolving Termination
Date.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar arrangement entered into to hedge interest rate risk (and not
for speculative purposes).
"Investment" has the meaning provided in Section 8.05.
"Issuing Bank" means (i) Bank of America or any Affiliate thereof in
its capacity as issuer of one or more Letters of Credit hereunder and (ii)
BankBoston, N.A. but solely in respect of the Standby Letter of Credit in the
amount of $533,217 issued for the benefit of 345 Park Avenue South, L.L.C., and
expiring on December 1, 1998 (the "Existing Letter of Credit"). Upon the
termination of the Existing Letter of Credit and the payment of all amounts (if
any) owing in respect thereof, BankBoston, N.A. shall cease to be an Issuing
Bank hereunder.
-17-
"Lending Office" means, with respect to any Bank, the office or offices
of such Bank specified as its "Lending Office", "Domestic Lending Office" or
"Eurodollar Lending Office", as the case may be, on Schedule 1.01(a), or such
other office or offices of the Bank as it may from time to time notify the
Borrower and the Agent.
"Letter of Credit" means any letter of credit issued by the Issuing
Bank pursuant to Article III.
"Letter of Credit Amendment Application" means an application form for
amendment of outstanding standby or commercial documentary letters of credit as
shall at any time be in use by the respective Issuing Bank, as such Issuing Bank
shall request.
"Letter of Credit Application" means an application form for issuances
of standby or commercial documentary letters of credit as shall at any time be
in use at the respective Issuing Bank, as such Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have been reimbursed
on or before the Business Day following the respective Disbursement Date when
made nor converted into a Borrowing of Revolving Loans under Section 3.03(b).
"Letter of Credit Commitment" means the aggregate commitment of the
Issuing Banks to issue Letters of Credit, the Letter of Credit Obligations in
respect thereof not to exceed in aggregate amount on any date the lesser of (i)
the Aggregate Revolving Commitment on such date and (ii) $2,500,000.
"Letter of Credit Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all outstanding Letter of Credit Borrowings.
"Letter of Credit Related Documents" means the Letters of Credit, the
Letter of Credit Applications, the Letter of Credit Amendment Applications and
any other document relating to any Letter of Credit, including any of the
respective Issuing Bank's standard form documents for letter of credit
issuances.
"Level I" has the meaning specified in Section 2.09(a)(ii).
"Level II" has the meaning specified in Section 2.09(a)(ii).
"Level III" has the meaning specified in Section 2.09(a)(ii).
"Level IV" has the meaning specified in Section 2.09(a)(ii).
"Level V" has the meaning specified in Section 2.09(a)(ii).
"Level VI" has the meaning specified in Section 2.09(a)(ii).
-18-
"Lien" means any interest in any real or personal property or fixture
which secures payment or performance of any obligation and shall include any
mortgage, lien, pledge, encumbrance, charge or other security interest of any
kind, whether arising under a Security Instrument or as a matter of law,
judicial process or otherwise, including the retained security title of a
conditional vendor or lessor.
"Loan Documents" means this Agreement (including the guaranty of
Holdings set forth in Article X), each Collateral Document and all other
agreements, instruments, notes, certificates or other documents evidencing,
guaranteeing or securing the Revolving Loans, Letter of Credit Borrowings or the
other obligations of Holdings, the Borrower or any Subsidiary Guarantor
hereunder or under any Collateral Document.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding), a material adverse effect on:
(a) the operations, business, assets, properties, liabilities or
condition (financial or otherwise) of the Borrower or of Holdings and its
Subsidiaries taken as a whole; or
(b) the rights and remedies of the Administrative Agent, the Collateral
Agent and the Banks under this Agreement or under any other Loan Document.
"Measurement Period" means (i) at any time on or prior to September 30,
1998 for purposes of determining compliance with Sections 8.07 and 8.08, the
period from January 1, 1998 through the last day of Holdings' fiscal quarter
then last ended (taken as one accounting period) and (ii) at any time thereafter
and for all other purposes of this Agreement, each period of four consecutive
fiscal quarters of Holdings (taken as one accounting period).
"Moody's" means Moody's Investors Service, Inc.
"Net Debt Proceeds" means, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Insurance Proceeds" means, with respect to any Recovery Event, the
cash proceeds (net of reasonable costs and taxes incurred in connection with
such Recovery Event) received by the respective Person in connection with the
respective Recovery Event.
"Net Sale Proceeds" means, in connection with any Asset Sale, the cash
proceeds (including any cash payments received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received in cash) of such Asset Sale net of (i) reasonable transaction costs
(including any underwriting, brokerage or other customary selling
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commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith actually incurred),
(ii) required debt payments (other than pursuant hereto), (iii) taxes estimated
to be paid as a result of such Asset Sale and (iv) any portion of such cash
proceeds which Holdings determines in good faith should be reserved for
post-closing adjustments or liabilities (to the extent Holdings delivers to the
Banks a certificate signed by a Responsible Officer of Holdings as to such
determination).
"NLP" means National Law Publishing Company, Inc., a Delaware
corporation.
"Notice of Borrowing" means a notice given by the Borrower to the
Administrative Agent pursuant to Section 2.03(a), in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice given by the
Borrower to the Administrative Agent pursuant to Section 2.04(b), in
substantially the form of Exhibit B.
"Obligations" means all Revolving Loans, Letter of Credit Borrowings
and other indebtedness, advances, debts, liabilities, obligations, indemnities,
expenses (including, without limitation, Attorney Costs), covenants and duties,
of any kind or nature, owing by Holdings, the Borrower or any Subsidiary
Guarantor to any Bank, the Administrative Agent, the Collateral Agent or any
Issuing Banks in connection with this Agreement or any other Loan Document, in
each case whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, and however acquired (including those
acquired by assignment) or arising and whether or not for the payment of money
or evidenced by any note, guarantee or other instrument.
"OECD" means the Organization for Economic Cooperation and Development.
"OLD ALM" means American Lawyer Media, L.P., the previous owner of the
assets acquired by Holdings in the ALM Acquisition.
"Originating Bank" has the meaning provided in Section 12.07(d).
"Other Hedging Agreement" means any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" has the meaning specified in Section 4.01(b).
"Participant" has the meaning specified in Section 12.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" has the meaning specified in Section 8.02(ix).
"Permitted Holders" means Wasserstein and its Affiliates.
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"Permitted Liens" has the meaning provided in Section 8.01.
"Person" means any natural person, corporation, firm, trust,
partnership, limited liability company, business trust, association, government,
governmental agency or authority, or any other entity, whether acting in an
individual, fiduciary, or other capacity.
"Plan" means any pension plan as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute of) Holdings or a Subsidiary of Holdings or an ERISA Affiliate, and
each such plan for the five year period immediately following the latest date on
which Holdings or a Subsidiary of Holdings or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" means the Pledge Agreement in the form of Exhibit C,
as amended, modified or supplemented from time to time in accordance with the
terms thereof and hereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
"Pro Forma Balance Sheet" means the pro forma unaudited consolidated
balance sheet of Holdings and its Subsidiaries as of December 31, 1997 after
giving effect to the Transaction and the financing therefor, which pro forma
consolidated balance sheet has been prepared in accordance with GAAP.
"Projections" means the projections prepared by Holdings, dated January
30, 1998 and furnished to the Banks prior to the Closing Date.
"Qualified Holdings Preferred Stock" means any preferred stock of
Holdings so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision,
(ii) do not require the cash payment of dividends, (iii) do not contain any
covenants, (iv) do not grant the holders thereof any voting rights except for
(x) voting rights required to be granted to such holders under applicable law
and (y) limited customary voting rights on fundamental matters such as mergers,
consolidations, sales of all or substantially all of the assets of Holdings, or
liquidations involving Holdings, and (v) are otherwise reasonably satisfactory
to Bank of America (or any successor Administrative Agent) and the Syndication
Agent.
"Recovery Event" means the receipt by Holdings or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable by
reason of theft, loss, physical destruction, damage, taking or any other similar
event with respect to any property or assets of Holdings or any of its
Subsidiaries.
"Reference Rate" means the rate of interest publicly announced from
time to time by Bank of America in San Francisco as its "reference rate". It is
a rate set by Bank of America based upon various factors, including Bank of
America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate. Any change in the Reference Rate
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announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Register" has the meaning specified in Section 2.02.
"Regulation D" means Regulation D of the Federal Reserve Board as from
time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"Replaced Bank" has the meaning specified in Section 4.08(b).
"Replacement Bank" has the meaning specified in Section 4.08(b).
"Reportable Event" means, an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulations issued under Section 4043 of
ERISA.
"Required Banks" means Banks, the sum of whose Revolving Commitments
(or after the termination thereof, outstanding Revolving Loans and Revolving
Commitment Percentages of Letter of Credit Obligations) represent at least 51%
of the Aggregate Revolving Commitment (or after the termination thereof, the sum
of the then total outstanding Revolving Loans and the aggregate Revolving
Commitment Percentages of the total outstanding Letter of Credit Obligations at
such time).
"Requirement of Law" means, as to any Person, any law (statutory or
common, including, without limitation, any Environmental Law and ERISA), treaty,
rule or regulation or determination of a court or of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer" means, for Holdings, the Borrower or any
Subsidiary thereof, its chairman of the board, its chief executive officer, its
president, any of its executive vice presidents, its chief financial officer,
but in any event, with respect to financial matters, the president or the chief
financial officer of Holdings.
"Revolving Commitment" means, for each Bank, the amount set forth
opposite such Bank's name in Schedule 1.01(b) directly below the column entitled
"Revolving Commitment," as such amount may be modified from time to time
pursuant to the terms hereof.
"Revolving Commitment Percentage" of any Bank at any time means a
fraction (expressed as a percentage) the numerator of which is the Revolving
Commitment of such Bank at such time and the denominator of which is the
Aggregate Revolving Commitment at such time, provided that if the Revolving
Commitment Percentage of any Bank is to be determined after the Aggregate
Revolving Commitment has been terminated, then the Revolving Commitment
Percentages of the Banks shall be determined immediately prior (and without
giving effect) to such termination.
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"Revolving Loan" means a loan by a Bank to the Borrower under Section
2.01, which may be a Eurodollar Loan or a Base Rate Loan.
"Revolving Termination Date" means the earlier to occur of (a) March
31, 2003 and (b) the date on which the Revolving Commitments shall terminate in
accordance with the provisions hereof.
"S&P" means Standard & Poor's Ratings Service, a division of McGraw
Hill, Inc.
"Section 4.01(f)(i) Certificate" has the meaning specified in Section
4.01(f).
"Security Agreement" means the Security Agreement in the form of
Exhibit F, as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof.
"Security Instrument" means any security agreement, chattel mortgage,
assignment, pledge agreement, financing or similar statement or notice,
continuation statement, other agreement or instrument, or amendment or
supplement to any thereof, providing for, evidencing or perfecting any security
interest.
"Significant Subsidiary" has the meaning set forth in the Holdings
Senior Discount Note Indenture or in the Borrower Senior Note Indenture.
"Specified Default" means (i) any Default under Section 9.01(a),
9.01(f) or 9.01(g), and (ii) any Event of Default.
"Standby Letter of Credit" has the meaning specified in Section
3.01(a).
"Subsidiary" of a Person means any corporation, association,
partnership or other business entity of which more than 50% of the voting stock
or other voting equity interests (in the case of Persons other than
corporations) is owned or controlled directly or indirectly by such Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Subsidiary Guarantor" means each of the Domestic Subsidiaries of the
Borrower listed on Schedule 1.01(c) and each other Domestic Subsidiary of the
Borrower (and, to the extent Section 7.12 is operative, each Foreign Subsidiary
of the Borrower) that hereafter executes and delivers a Guarantor Supplement.
"Subsidiary Guaranty" means the Guaranty in the form of Exhibit E, as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Syndication Agent" means BancBoston Securities Inc.
"Taxes" has the meaning specified in Section 4.01(a).
"Total Leverage Ratio Certificate" means a certificate duly executed by
a Responsible of Holdings, substantially in the form of Exhibit G (with such
changes thereto as
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may be agreed upon from time to time by the Administrative Agent and Holdings),
and including therein, among other things, calculations supporting the
information contained therein.
"Trade Letter of Credit" has the meaning specified in Section 3.01(a).
"Transaction" means, collectively, (i) the Acquisition and the related
refinancing of certain indebtedness of the Borrower, NLP and their Subsidiaries,
(ii) the issuance of the Borrower Senior Notes as part of the Acquisition, (iii)
the issuance of the Holdings Senior Discount Notes as part of the Acquisition,
(iv) the $73,500,000 in equity contributions received by Holdings as part of the
Acquisition and (v) the entering into of this Agreement and the occurrence of
the Closing Date.
"Transferee" has the meaning specified in Section 12.08.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year, determined in accordance with
actuarial assumptions at such time consistent with Statement of Financial
Accounting Standards No. 87, exceeds the market value of the assets allocable
thereto.
"United States" and "U.S." each means the United States of America.
"Voting Stock" of any Person as of any date means the capital stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Wasserstein" means Wasserstein Perella Group Inc., a Delaware
corporation.
"WP Management" means WP Management Partners, L.L.C., a Delaware
limited liability company.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any corporation
100% of whose capital stock (other than director's or other qualifying shares)
is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries
of such Person and (ii) any partnership, association or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% equity interest at such time.
1.02 Other Definitional Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have such defined meanings when used in
any certificate or other document made or delivered pursuant hereto. The meaning
of defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
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(b) The Agreement. The words "hereof", "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
i (ii) The terms "including" or "include"
are not limiting and mean "including without limitation" or "include
without limitation".
(d) Performance; Time. Subject to the definition of
the term "Interest Period" in Section 1.01, whenever any performance obligation
hereunder shall be stated to be due or required to be satisfied on a day other
than a Business Day, such performance shall be made or satisfied on the next
succeeding Business Day. In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding"; and the word "through"
means "to and including." If any provision of this Agreement refers to any
action taken or to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be interpreted to encompass any and all means,
direct or indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided
herein, references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document.
(f) Laws. References to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending or replacing such statute or regulation.
1.03 Accounting Principles. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted in accordance with GAAP.
Unless the context otherwise clearly requires, all financial computations
required under this Agreement shall be made in accordance with generally
accepted accounting principles applied in a manner consistent with those in
effect on December 31, 1997.
ARTICLE II.
THE CREDIT FACILITIES
2.01 Amounts and Terms of Commitments.
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Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Loans to the Borrower from
time to time on any Business Day during the period from the Closing
Date to the Revolving Termination Date, in an aggregate amount not to
exceed at any time outstanding the amount of such Bank's Revolving
Commitment; provided, however, that, after giving effect to any
Borrowing, the aggregate principal amount of all outstanding Revolving
Loans plus the aggregate amount of all outstanding Letter of Credit
Obligations (exclusive of unpaid drawings under any Letter of Credit
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans), shall not
exceed the Aggregate Revolving Commitment. Within such limits, and
subject to the other terms and conditions hereof, the Borrower may
borrow Revolving Loans under this Section 2.01, prepay pursuant to
Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01.
2.02 Loan Accounts and Register; Notes.
(a) The Revolving Loans made by, and the Revolving Commitments
of, each Bank shall be evidenced by one or more loan accounts
maintained by such Bank and the Register maintained by the
Administrative Agent in the ordinary course of business. The Register
maintained by the Administrative Agent shall, in the event of a
discrepancy between the entries in the Administrative Agent's books and
any Bank's books relating to such matters, be controlling and, absent
manifest error, shall be conclusive as to the amount of the Revolving
Loans made by the Banks to the Borrower, the interest and payments
thereon and any other amounts owing in respect of this Agreement. Any
failure to make a notation in the Register or any such loan account or
any error in doing so shall not limit or otherwise affect the
obligations of the Borrower hereunder to pay any amount owing with
respect to the Revolving Loans. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for
purposes of this Section 2.02, to maintain a register (the "Register")
on which it will record the Revolving Commitments from time to time of
each of the Banks, the Revolving Loans made by each of the Banks and
each repayment in respect of the principal amount of the Revolving
Loans of each Bank. With respect to any Bank, the transfer of the
Revolving Commitments of such Bank and the rights to the principal of,
and interest on, any Revolving Loan made pursuant to such Revolving
Commitments shall not be effective until such transfer is recorded on
the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Commitments and Revolving Loans and prior
to such recordation all amounts owing to the transferor with respect to
such Revolving Commitments and Revolving Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or
part of any Revolving Commitments and Revolving Loans shall be recorded
by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered
Assignment and Acceptance pursuant to Section 12.07(a). The Borrower
agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which
may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this Section 2.02.
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(b) If requested by any Bank for purposes of Section 12.07(e),
the Borrower shall execute and deliver to such Bank (and deliver a copy
thereof to the Administrative Agent) one or more promissory notes
evidencing the Revolving Loans owing to such Bank pursuant to this
Agreement. Any such note shall be in a form prescribed by the Borrower
and the Administrative Agent and shall be entitled to all of the rights
and benefits of this Agreement and the other Loan Documents.
2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans (other than a Borrowing
of Revolving Loans pursuant to Section 3.03(b)) shall be made upon the
Borrower's irrevocable written notice delivered to the Administrative
Agent in accordance with Section 12.02 in the form of a Notice of
Borrowing (which notice must be received by the Administrative Agent
(i) prior to 11:30 a.m. (New York City time) not less than three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans and (ii) prior to 11:30 a.m. (New York City time) on
the requested Borrowing Date, in the case of Base Rate Loans,
specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of $1,000,000 or any
multiple of $50,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) whether the Borrowing is to be comprised of
Eurodollar Loans or Base Rate Loans; and
(D) the duration of the Interest Period, if any,
applicable to such Revolving Loans included in such notice. If
the Notice of Borrowing shall fail to specify the duration of
the Interest Period for any Borrowing comprised of Eurodollar
Loans, such Interest Period shall be one month.
(b) Upon receipt of the Notice of Borrowing, the
Administrative Agent will promptly notify each Bank of the contents
thereof and of the amount of such Bank's Revolving Commitment
Percentage of the requested Borrowing.
(c) Each Bank will make the amount of its Revolving Commitment
Percentage of each Borrowing available to the Administrative Agent for
the account of the Borrower at the Administrative Agent's Payment
Office by 2:00 p.m. (New York City time) on the Borrowing Date
requested by the Borrower in funds immediately available to the
Administrative Agent. Unless any applicable condition of Article V has
not been satisfied, the proceeds of all such Revolving Loans (other
than Revolving Loans made pursuant to Section 3.03(b)) will then be
made available to the Borrower by the Administrative Agent by wire
transfer in accordance with written instructions provided to the
Administrative Agent by the Borrower.
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(d) Upon the occurrence and during the continuance of any
Specified Default, the Borrower shall not have the right to elect (and
shall not elect) to have a Revolving Loan be made as a Eurodollar Loan.
(e) After giving effect to any Borrowing, there shall not be
more than eight different Interest Periods in effect in respect of all
Revolving Loans.
2.04 Conversion and Continuation Elections for Revolving
Borrowings.
(a) The Borrower may upon irrevocable written notice to the
Administrative Agent in accordance with paragraph (b) below:
(i) elect to convert on any Business Day, any Base
Rate Loans (or any part thereof in an amount of not less than
$1,000,000 or an integral multiple of $50,000 in excess
thereof) into Eurodollar Loans;
(ii) elect to convert on the last day of the Interest
Period with respect thereto, any Eurodollar Loans (or any part
thereof in an amount of not less than $1,000,000 or an
integral multiple of $50,000 in excess thereof) into Base Rate
Loans; or
(iii) elect to continue on the last day of the
Interest Period with respect thereto, any Eurodollar Loans (or
any part thereof in an amount of not less than $1,000,000 or
an integral multiple of $50,000 in excess thereof);
provided, however, (x) that if the aggregate amount of a Borrowing
comprised of Eurodollar Loans shall have been reduced, by payment,
prepayment or conversion of part thereof to be less than $1,000,000,
the Eurodollar Loans comprising such Borrowing shall automatically
convert into Base Rate Loans, and on and after such date the right of
the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Loans shall terminate and (y) Eurodollar Loans with Interest
Periods of more than one month may not be selected until the 90th day
after the Closing Date.
(b) The Borrower shall deliver a Notice of Conversion/Continuation in
accordance with Section 12.02 to be received by the Administrative
Agent not later than (i) 11:30 a.m. (New York City time) not less than
three Business Days in advance of the Conversion Date or Continuation
Date, if the Revolving Loans are to be converted into or continued as
Eurodollar Loans and (ii) no later than 11:30 a.m. (New York City time)
on the requested Conversion Date, if the Revolving Loans are to be
converted into Base Rate Loans, specifying:
(A) the Revolving Loans to be converted or continued;
(B) the proposed Conversion Date or Continuation Date
which shall be a Business Day;
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(C) the aggregate principal amount of Revolving Loans
to be converted or continued;
(D) the nature of the proposed conversion or
continuation; and
(E) the duration of the requested Interest Period, if
applicable.
(c) If upon the expiration of any Interest Period applicable
to Eurodollar Loans, the Borrower has failed to select timely a new
Interest Period or the Borrower is not permitted to elect a new
Interest Period, such Revolving Loans shall automatically convert into
Base Rate Loans.
(d) Upon receipt of a Notice of Conversion/ Continuation, the
Administrative Agent will promptly notify each Bank of the contents
thereof, or, if no timely notice is provided by the Borrower, the
Administrative Agent will promptly notify each such Bank of the details
of any automatic conversion. All conversions and continuations shall be
made pro rata according to the respective outstanding principal amounts
of the Revolving Loans with respect to which the notice was given.
(e) Upon the occurrence and during the continuance of any
Specified Default, the Borrower shall not elect to have a Revolving
Loan converted into or continued as a Eurodollar Loan.
(f) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of any
Revolving Loans, there shall not be more than eight different Interest
Periods in effect in respect of all Revolving Loans.
2.05 Reduction and Termination of Commitments.
(a) The Borrower may, upon not less than three Business Days'
prior notice to the Administrative Agent, terminate the Aggregate
Revolving Commitment (including the Letter of Credit Commitment) or
permanently reduce the Aggregate Revolving Commitment (including the
Letter of Credit Commitment) by an aggregate minimum amount of
$5,000,000 or any multiple of $100,000 in excess thereof; provided,
however, that no such reduction or termination shall be permitted if
after giving effect thereto and to any prepayment of the Revolving
Loans made on the effective date thereof, (i) the then outstanding
principal amount of the Revolving Loans plus the outstanding Letter of
Credit Obligations would exceed the Aggregate Revolving Commitment then
in effect or (ii) the aggregate amount of Letter of Credit Obligations
would exceed the Letter of Credit Commitment then in effect; and,
provided further, that once reduced in accordance with this Section
2.05, the Aggregate Revolving Commitment (including the Letter of
Credit Commitment) may not be increased.
(b) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on April 15,
1998 unless the Closing Date shall have occurred on or prior to such
date.
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(c) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on the
Revolving Termination Date.
(d) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on the date on
which a Change of Control occurs.
(e) On each date upon which Holdings or any of its
Subsidiaries receives any proceeds from any incurrence by Holdings or
any of its Subsidiaries of Indebtedness for borrowed money (other than
Indebtedness for borrowed money permitted to be incurred under Section
8.04 as in effect on the Closing Date), the Aggregate Revolving
Commitment shall be permanently reduced by an amount equal to 100% of
the Net Debt Proceeds of the respective incurrence of Indebtedness.
Nothing in this clause (e) shall be deemed to permit the issuance of
any Indebtedness not otherwise permitted under this Agreement.
(f) On each date upon which Holdings or any of its
Subsidiaries receives any proceeds from any Asset Sale, the Aggregate
Revolving Commitment shall be permanently reduced by an amount equal to
100% of the Net Sale Proceeds from such Asset Sale, provided that with
respect to no more than $5,000,000 in the aggregate of such Net Sale
Proceeds in any fiscal year of Holdings, such Net Sale Proceeds shall
not give rise to a reduction pursuant to this clause (f) to the extent
that no Default or Event of Default then exists and Holdings has
delivered a certificate of one of its Responsible Officers to the
Administrative Agent on or prior to such date stating that such Net
Sale Proceeds shall be used to purchase replacement assets used or to
be used in the Borrower's or any of its Subsidiaries' business within
265 days following the date of such Asset Sale (which certificate shall
set forth the estimates of the proceeds to be so expended), and
provided further, that if all or any portion of such Net Sale Proceeds
are not so reinvested within such 265 day period (or such earlier date,
if any, as the Board of Directors of the Borrower determines not to so
reinvest such Net Sale Proceeds), the Aggregate Revolving Commitment
shall be permanently reduced on the last day of such period (or such
earlier date, as the case may be) by an amount equal to such remaining
portion. Nothing in this clause (f) shall be deemed to permit any Asset
Sale not otherwise permitted under this Agreement.
(g) Within 10 days following each date upon which Holdings or
any of its Subsidiaries receives any proceeds from any Recovery Event,
the Aggregate Revolving Commitment shall be permanently reduced by an
amount equal to 100% of the Net Insurance Proceeds from such Recovery
Event, provided that so long as no Default or Event of Default then
exists and such proceeds from such Recovery Event do not exceed
$2,000,000, such proceeds shall not give rise to a reduction pursuant
to this clause (g) on such date to the extent that Holdings has
delivered a certificate of one of its Responsible Officers to the
Administrative Agent on or prior to such date stating that such
proceeds shall be used to replace or restore any properties or assets
in respect of which such proceeds were paid within 265 days following
the date of receipt of such proceeds (which
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certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that (i) if the amount of such
proceeds exceeds $2,000,000, then the entire amount of such proceeds
and not just the portion in excess of $2,000,000 shall be applied as
provided above in this clause (g), and (ii) if all or any portion of
such proceeds are not contractually committed to be used within 180
days after the date of receipt of such proceeds and are not actually
used within 265 days after the date of receipt of such proceeds to
effect such restoration or replacement (or such earlier date, if any,
as the Board of Directors of the Borrower determines not to so reinvest
such Net Insurance Proceeds), the Aggregate Revolving Commitment shall
be permanently reduced on the last day of such 180-day or 265-day
period, as the case may be (or such earlier date, as the case may be),
by an amount equal to such remaining portion.
(h) On each Excess Cash Payment Date, the Aggregate Revolving
Commitment shall be permanently reduced by an amount equal to the
Applicable Excess Cash Flow Percentage of the Excess Cash Flow for the
relevant Excess Cash Payment Period; provided, however, that no such
reduction pursuant to this clause (h) shall be required to the extent
that no Default or Event of Default then exists and the Consolidated
Total Leverage Ratio on such Excess Cash Payment Date (before giving
effect to any such reduction on such date) is less than 4.00:1.00 as
demonstrated in the Total Leverage Ratio Certificate delivered to the
Administrative Agent in accordance with Section 12.02 at such time.
(i) Any reduction of the Aggregate Revolving Commitment and
the Letter of Credit Commitment pursuant to this Section 2.05 shall be
applied pro rata to each Bank's Revolving Commitment in accordance with
such Bank's Revolving Commitment Percentage. The amount of any such
reduction of the Aggregate Revolving Commitment shall not be applied to
the Letter of Credit Commitment unless otherwise specified by the
Borrower or required by the definition thereof. The Administrative
Agent shall promptly notify the Banks of any reduction or termination
of the Aggregate Revolving Commitment.
2.06 Voluntary Prepayments.
(a) The Borrower may, prior to 11:30 a.m. (New York City
time), upon at least three Business Days' notice to the Administrative
Agent in the case of Eurodollar Loans, and prior to 11:30 a.m. (New
York City time), upon same day notice on any Business day in the case
of Base Rate Loans, ratably prepay Revolving Loans, in whole or in part
in amounts of $100,000 or an integral multiple of $50,000 in excess
thereof.
(b) Any notice of prepayment delivered pursuant to this
Section 2.06 shall specify the date and amount of such prepayment, the
type of Revolving Loans to be prepaid, including whether such
prepayment is of Base Rate Loans or Eurodollar Loans or any combination
thereof. Each such notice shall be irrevocable by the Borrower and the
Administrative Agent will promptly notify each Bank thereof and of such
Bank's Revolving Commitment Percentage of such prepayment. If such
notice is given by the
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Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on
the amount prepaid and the amounts, if any, required pursuant to
Section 4.04; provided that interest shall be paid in connection with
any such prepayment of Base Rate Loans (other than a prepayment in
full) on the next occurring Interest Payment Date.
2.07 Mandatory Prepayments.
(a)(i) If on any date the aggregate unpaid principal amount of
outstanding Revolving Loans plus the outstanding Letter of Credit
Obligations (to the extent not Cash Collateralized pursuant to clause
(ii) below or as provided for in Section 3.07) exceeds the Aggregate
Revolving Commitment the Borrower shall immediately prepay the amount
of such excess.
(ii) If on any date the aggregate amount of all Letter of
Credit Obligations shall exceed the Letter of Credit Commitment, the
Borrower shall Cash Collateralize on such date its obligations in
respect of Letters of Credit in an amount equal to the excess of the
Letter of Credit Obligations over the Letter of Credit Commitment.
(b) The Borrower shall pay, together with each prepayment made
by the Borrower under this Section 2.07, accrued interest on the amount
prepaid and any amounts required pursuant to Section 4.04; provided
that interest shall be paid in connection with any such prepayment of
Base Rate Loans (other than a prepayment in full) on the next occurring
Interest Payment Date.
(c) Any prepayments pursuant to this Section 2.07 made on a
day other than an Interest Payment Date for any Revolving Loan shall be
applied first to any Base Rate Loans then outstanding and then to
Eurodollar Loans with the shortest Interest Periods remaining.
(d) The Borrower shall repay in full all outstanding Revolving
Loans on the date on which a Change of Control occurs.
2.08 Repayment of Principal.
The Borrower shall repay in full on the Revolving Termination Date the
aggregate principal amount of the Revolving Loans outstanding on such date.
2.09 Interest.
(a) Each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the Borrowing Date applicable thereto
until it becomes due at a rate per annum equal to the Base Rate or the
Eurodollar Rate, as the case may be, plus the Applicable Margin then in
effect as set forth below:
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(i) for the period commencing on the Closing Date and ending
on the day immediately preceding the First Adjustment Date:
Applicable Margin
Base Rate 1.500%
Eurodollar Rate 2.500%
(ii) from and after the First Adjustment
Date, for each period beginning on an Adjustment Date to the next
succeeding Adjustment Date, the rate per annum for the relevant type of
Revolving Loan set forth below opposite the Consolidated Total Leverage
Ratio determined as at the end of the last fiscal quarter ended prior
to the first day of such period:
Applicable Margin
Eurodollar Base
Rate Rate
---- ----
Consolidated Total Leverage Ratio is less than 5.00 to 1.00 1.250% 0.250%
("Level I")
---------
Consolidated Total Leverage Ratio is less than 5.50 to 1.0 but 1.625% 0.625%
greater than or equal to 5.00 to 1.00 ("Level II")
--------
Consolidated Total Leverage Ratio is less than 6.00 to 1.00 but 1.875% 0.875%
greater than or equal to 5.50 to 1.00 ("Level III")
---------
Consolidated Total Leverage Ratio is less than 6.50 to 1.00 but 2.125% 1.125%
greater than or equal to 6.00 to 1.00 ("Level IV")
--------
Consolidated Total Leverage Ratio is less than 7.00 to 1.00 but 2.250% 1.250%
greater than or equal to 6.50 to 1.00 ("Level V")
-------
Consolidated Total Leverage Ratio is greater than or equal to 2.500% 1.500%
7.00 to 1.00 ("Level VI")
--------
(iii) If by the last day for determining
any Adjustment Date, Holdings has failed to deliver a Total Leverage
Ratio Certificate as at the end of the fiscal quarter ended immediately
prior to such Adjustment Date, interest for the next succeeding period
commencing on such Adjustment Date to the next succeeding Adjustment
Date shall be computed as if the Consolidated Total Leverage Ratio were
at Level VI; provided, however, to the extent that Holdings thereafter
delivers a Total Leverage Ratio Certificate in respect of such
preceding fiscal
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quarter during such succeeding period, interest for the remainder of
such succeeding period shall be computed at the rate prescribed by
Section 2.09(a)(ii). In addition, at any time that a Specified Default
shall exist, the Applicable Margin shall be computed as if the
Consolidated Total Leverage Ratio were at Level VI.
(b) Except as provided in the last sentence of Section 2.09(a)(iii) or
in the proviso to the first sentence of Section 2.09(a)(iii), any change in the
Applicable Margin due to a change in the Consolidated Total Leverage Ratio shall
be effective on the applicable Adjustment Date and shall apply to all Revolving
Loans that are outstanding at any time during the period commencing on such
Adjustment Date and ending on the date immediately preceding the next Adjustment
Date.
(c) Interest on each Revolving Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of any portion of Revolving Loans (excluding Base Rate Loans) for the portion of
such Revolving Loans so prepaid and upon payment (including prepayment) of any
Revolving Loans (including Base Rate Loans) in full. In addition, interest which
accrues under Section 2.09(d) also shall be paid on demand by the Administrative
Agent or the Required Banks.
(d) If any amount of principal of or interest on any Revolving Loan, or
any other regularly scheduled amount payable hereunder or under any other Loan
Document is not paid in full when due (whether at stated maturity, by
acceleration, demand or otherwise), the Borrower shall pay interest (after as
well as before judgment) on the overdue principal amount of all outstanding
Loans at the applicable rate per annum provided in this Section 2.09 plus 2% and
on all other overdue amounts (including interest to the extent permitted by
law), at a rate per annum equal to the Base Rate plus the Applicable Margin plus
2%.
(e) Anything herein to the contrary notwithstanding, the obligations of
the Borrower hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Bank,
and in such event the Borrower shall only pay such Bank interest at the highest
rate permitted by applicable law.
2.10 Fees. In addition to fees described in Section 3.08:
(a) Commitment Fees.
The Borrower shall pay to the Administrative Agent for the
account of each Bank a commitment fee on the daily unused portion of
such Bank's Revolving Commitment, computed on a quarterly basis in
arrears, on each Interest Payment Date for Base Rate Loans based upon
the daily utilization for the previous three month period as calculated
by the Administrative Agent, equal to (A) for the period from the
Closing Date to the First Adjustment Date, 0.50% per annum and (B) from
and after the First Adjustment Date, for each period
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commencing on an Adjustment Date to the next succeeding Adjustment
Date, the rate per annum set forth below opposite the relevant Level of
Consolidated Total Leverage Ratio determined as at the end of the last
fiscal quarter ended prior to the first day of such period:
Consolidated Total Leverage Ratio
Level I 0.300%
Level II 0.375%
Level III 0.450%
Level IV 0.450%
Level V 0.500%
Level VI 0.500%
provided, however, that if by the last day for determining any
Adjustment Date, Holdings has failed to deliver a Total Leverage Ratio
Certificate as at the end of the fiscal quarter ended immediately prior
to such Adjustment Date, the commitment fee for the next succeeding
period beginning on such Adjustment Date to the next succeeding
Adjustment Date shall be computed as if the Consolidated Total Leverage
Ratio were at Level VI; provided further, however, to the extent that
Holdings thereafter delivers a Total Leverage Ratio Certificate in
respect of such preceding fiscal quarter during such succeeding period
the commitment fee for the remainder of such succeeding period shall be
computed at the rate prescribed in the table above in this Section
2.10(a)(i). In addition, at any time that a Specified Default shall
exist, the commitment fee shall be computed as if the Consolidated
Total Leverage Ratio were at Level VI. Such commitment fees shall be
paid in arrears on each Interest Payment Date for Base Rate Loans.
(b) Other Fees. The Borrower shall pay such
other fees as have or may be agreed between or among Holdings, the
Borrower and the Administrative Agent from time to time.
2.11 Computation of Fees and Interest.
(a) All computations of interest payable in respect of Base
Rate Loans shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of
fees and interest under this Agreement shall be made on the basis of a
360-day year (of 12 months with 30 days each) and actual days elapsed.
Interest and fees shall accrue during each period during which interest
or such fees are computed from the first day thereof to the last day
thereof.
(b) The Administrative Agent will promptly notify the Borrower
and the Banks of each determination of the Eurodollar Rate; provided,
however, that any failure to do so shall not relieve the Borrower of
any liability hereunder. Except as otherwise provided in the last
sentence of Section 2.09(a)(iii) or in the proviso to the first
sentence of Section 2.09(a)(iii), any change in the interest rate on a
Loan resulting from a change
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in the Applicable Margin shall become effective as of the opening of
business on the relevant Adjustment Date. The Administrative Agent will
promptly notify the Borrower and the Banks of the effective date and
the amount of each such change, provided, however, that any failure to
do so shall not relieve the Borrower of any liability hereunder.
(c) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Borrower
and the Banks in the absence of manifest error.
2.12 Payments by the Borrower.
(a) All payments (including prepayments) to be made by the
Borrower on account of principal, interest, drawings under Letters of
Credit, fees and other amounts required hereunder shall be made, except
as otherwise expressly provided herein, without set-off or counterclaim
and shall, except as otherwise expressly provided with respect to
drawings under Letters of Credit and elsewhere herein, be made to the
Administrative Agent for the ratable account of the Banks entitled
thereto at the Administrative Agent's Payment Office, and shall be made
in Dollars and in immediately available funds, no later than 2:00 p.m.
(New York City time) on the date specified herein. The Administrative
Agent will promptly distribute to each Bank its share, if any, of such
principal, interest, fees or other amounts, in like funds as received.
Any payment which is received by the Administrative Agent later than
2:00 p.m. (New York City time) shall be deemed to have been received on
the immediately succeeding Business Day and any applicable interest or
fee shall continue to accrue until such payment is deemed to have been
received.
(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, as the case
may be, subject to the provisions set forth in the definition of the
term "Interest Period" herein.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Banks hereunder that the Borrower will not make the payment in full,
the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent as required hereunder on
such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption,
cause to be distributed to each Bank entitled thereto on such due date
an amount equal to the amount then due such Bank. If and to the extent
the Borrower shall not have made such payment in full to the
Administrative Agent, each such Bank shall repay to the Administrative
Agent on demand such amount distributed to such Bank, together with
interest thereon for each day from the date such amount is distributed
to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate as in effect for each
such day.
2.13 Payments by the Banks to the Administrative Agent.
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(a) Unless the Administrative Agent shall have received notice
from a Bank prior to 1:00 p.m. (New York City time) on the date of any
proposed Borrowing that such Bank will not make available to the
Administrative Agent for the account of the Borrower the amount of such
Bank's Revolving Commitment Percentage of the Revolving Loans included
in such Borrowing, the Administrative Agent may assume that each such
Bank has made such amount available to the Administrative Agent as
required hereunder on the Borrowing Date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If
and to the extent any such Bank shall not have made its full amount
available to the Administrative Agent in immediately available funds
and the Administrative Agent in such circumstances has made available
to the Borrower such amount, such Bank shall immediately make such
amount available to the Administrative Agent, together with interest at
the Federal Funds Rate from the date of such Borrowing to the date on
which the Administrative Agent recovers such amount from such Bank or
the Borrower. A notice of the Administrative Agent submitted to any
Bank with respect to amounts owing under this Section 2.13(a) shall be
conclusive, absent manifest error. If such amount is so made available,
such payment to the Administrative Agent shall constitute such Bank's
Revolving Loan on the Borrowing Date for all purposes of this
Agreement. If such amount is not made available to the Administrative
Agent on the next Business Day following such Borrowing Date, the
Administrative Agent may notify the Borrower of such failure to fund
and, upon demand by the Administrative Agent, the Borrower shall pay
such amount to the Administrative Agent for the Administrative Agent's
account, together with interest thereon for each day elapsed since such
Borrowing Date, at a rate per annum equal to the interest rate
applicable at the time to the Revolving Loans comprising such
Borrowing.
(b) The failure of any Bank to make any Revolving Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Revolving Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make the
Revolving Loan to be made by such other Bank on any Borrowing Date.
2.14 Sharing of Payments, etc.
(a) If, other than as expressly provided elsewhere herein, any
Bank shall obtain on account of the Obligations owing to it any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Revolving Commitment Percentage
of payments on account of the respective Obligations of the same kind
obtained by all the Banks entitled thereto, such Bank shall forthwith
(i) notify the Administrative Agent of such fact, and (ii) purchase
from the other such Banks such participations in such Obligations made
by them as shall be necessary to cause such purchasing Bank to share
the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered
from the purchasing Bank, such purchase shall to that extent be
rescinded and each other such Bank shall repay to the purchasing Bank
the purchase price paid therefor, together with
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an amount equal to such paying Bank's Revolving Commitment Percentage
(according to the proportion of (A) the amount of such paying Bank's
required repayment to (B) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The
Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased
pursuant to this Section 2.14 and will in each case notify the Banks
following any such purchases.
(b) The Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section
2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to
Section 12.09) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such
participation.
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2.15 Security and Guaranties.
(a) All Obligations of the Borrower, Holdings and the
Subsidiary Guarantors under this Agreement and all other Loan Documents
to which they are a party shall be secured in accordance with the
Collateral Documents.
(b) All Obligations of the Borrower under this Agreement and
all other Loan Documents to which it is a party shall be
unconditionally guaranteed by Holdings pursuant to Article X and by the
Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
ARTICLE III.
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein, (i) each
Issuing Bank agrees, (A) from time to time, on any Business Day during
the period from the Closing Date to the date which is 30 days prior to
the Revolving Termination Date to issue (x) irrevocable sight standby
Letters of Credit (each such standby Letter of Credit, a "Standby
Letter of Credit") for the account of the Borrower and (y) irrevocable
sight commercial Letters of Credit (each such commercial Letter of
Credit, a "Trade Letter of Credit" and each such Trade Letter of Credit
and each Standby Letter of Credit, a "Letter of Credit") for the
account of the Borrower, and to amend or renew Letters of Credit
previously issued by it, in accordance with Sections 3.02(c) and
3.02(d), and (B) to honor drafts under the Letters of Credit; and (ii)
the Banks severally agree to participate in Letters of Credit issued
for the account of the Borrower; provided, however, that no Issuing
Bank shall issue any Letter of Credit if as of the date of, and after
giving effect to, the issuance of such Letter of Credit, (x) the
aggregate amount of all Letter of Credit Obligations (exclusive of
unpaid drawings under any Letter of Credit which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) plus the aggregate principal amount of
all Revolving Loans shall exceed the Aggregate Revolving Commitment, or
(y) the Letter of Credit Obligations (exclusive of unpaid drawings
under any Letter of Credit which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) shall exceed the Letter of Credit Commitment. All
Letters of Credit shall be denominated in Dollars. Notwithstanding
anything to the contrary contained herein, BankBoston, N.A. shall be
the Issuing Bank only in respect of the Existing Letter of Credit and
with the Existing Letter of Credit being deemed issued for all purposes
of this Agreement on the Closing Date.
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(b) No Issuing Bank shall be under any obligation to issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority shall by its terms purport to enjoin or restrain
such Issuing Bank from issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such
Issuing Bank shall prohibit, or request that such Issuing Bank
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such
Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in
effect on the Closing Date or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which such Issuing Bank in
good faith deems material to it;
(ii) such Issuing Bank has received written notice
from the Required Banks, the Administrative Agent or the
Borrower on or prior to the Business Day prior to the
requested date of issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Article V is
not then satisfied;
(iii) the expiry date of any requested Letter of
Credit (x) is more than (A) in the case of Standby Letters of
Credit, one year after the date of issuance or (B) in the case
of Trade Letters of Credit, 180 days after the date of
issuance, unless (in each case) the Required Banks and such
Issuing Bank have approved such expiry date in writing or (y)
is later than the 30th day prior to the Revolving Termination
Date;
(iv) any requested Letter of Credit is not in form
and substance acceptable to such Issuing Bank, or the
issuance, of a Letter of Credit shall violate any applicable
policies of such Issuing Bank; or
(v) such Letter of Credit is in a face amount less
than $100,000.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Borrower received by the respective Issuing Bank
(with a copy sent by the Borrower to the Administrative Agent) at least
five days (or such shorter time as such Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed date
of issuance. Each such request for issuance of a Letter of Credit shall
be by facsimile, confirmed immediately in an original writing, in the
form of a Letter of Credit Application, and shall specify in form and
detail satisfactory to such Issuing Bank: (i) the proposed date of
issuance of the Letter of Credit (which shall be a Business Day); (ii)
the face amount of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by
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the beneficiary of the Letter of Credit in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; and (vii) such other
matters as the Issuing Bank may reasonably require.
(b) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Termination Date, such Issuing Bank will,
upon the written request of the Borrower received by the respective
Issuing Bank (with a copy sent by the Borrower to the Administrative
Agent) at least five days (or such shorter time as such Issuing Bank
may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it.
Each such request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, made in the
form of a Letter of Credit Amendment Application and shall specify in
form and detail satisfactory to such Issuing Bank: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment of the Letter
of Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as such Issuing Bank
may reasonably require. The respective Issuing Bank shall be under no
obligation to amend any Letter of Credit if: (A) such Issuing Bank
would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit.
(c) The Administrative Agent will promptly notify the Banks of
the issuance of any Letter of Credit.
(d) Each Issuing Bank and the Banks agree
that, while a Letter of Credit is outstanding and prior to the
Revolving Termination Date, at the option of the Borrower and upon the
written request of the Borrower received by such Issuing Bank (with a
copy sent by the Borrower to the Agent) at least five days (or such
shorter time as such Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of notification of
renewal, such Issuing Bank shall be entitled to authorize the automatic
renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of a Letter of Credit
Amendment Application, and shall specify in form and detail
satisfactory to such Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as
such Issuing Bank may reasonably require. No Issuing Bank shall be
under any obligation to renew any Letter of Credit if such Issuing Bank
would have no obligation at such time to issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement. If any
outstanding Standby Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice
from the respective Issuing Bank that such Standby Letter of Credit
shall not be renewed, and if at the time of renewal such Issuing Bank
would be entitled to authorize the automatic renewal of such Standby
Letter of Credit in accordance with this Section 3.02(d) upon the
request of the Borrower but such Issuing Bank shall not have received
any Letter of Credit Amendment
-41-
Application from the Borrower with respect to such renewal or other
written direction by the Borrower with respect thereto, such Issuing
Bank shall nonetheless be permitted to allow such Standby Letter of
Credit to be renewed, and the Borrower and the Banks hereby authorize
such renewal, and, accordingly, such Issuing Bank shall be deemed to
have received a Letter of Credit Amendment Application from the
Borrower requesting such renewal.
(e) This Agreement shall control in the
event of any conflict with any Letter of Credit Related Document (other
than any Letter of Credit).
(f) Each Issuing Bank will also deliver to
the Administrative Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or renewal of a Letter
of Credit, to an advising bank or a beneficiary, a true and complete
copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
3.03 Participations, Drawings and Reimbursements.
(a) Immediately upon the issuance of each Letter of Credit,
each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the respective Issuing Bank a
participation in such Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) the Revolving Commitment
Percentage of such Bank times (ii) the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing,
respectively. For purposes of Section 2.10(a), each issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of
each Bank by an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the respective
Issuing Bank will promptly notify the Borrower. The Borrower shall
reimburse the respective Issuing Bank prior to 2:00 p.m. (New York City
time), on the Business Day immediately following each date that any
amount is paid by such Issuing Bank under any Letter of Credit (each
such date on which any amount is so paid by such Issuing Bank, a
"Disbursement Date"), in an amount equal to the amount so paid by such
Issuing Bank. In the event the Borrower shall fail to reimburse the
respective Issuing Bank for the full amount of any drawing under any
Letter of Credit by 2:00 p.m. (New York City time) on the Business Day
immediately following the respective Disbursement Date, such Issuing
Bank will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Bank thereof, and the
Borrower shall be deemed to have requested that Revolving Loans
consisting of Base Rate Loans be made by the Banks (and hereby
irrevocably consents to such deemed request) pursuant to Section 2.01
to be disbursed on the Business Day immediately following the
respective Disbursement Date under such Letter of Credit. Any notice
given by the respective Issuing Bank or the Administrative Agent
pursuant to this Section 3.03(b) may be oral if immediately confirmed
in writing (including by
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facsimile); provided, however, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(c) Each Bank shall upon receipt of any notice pursuant to
Section 3.03(b) make available to the Administrative Agent for the
account of the respective Issuing Bank an amount in Dollars and in
immediately available funds equal to its Revolving Commitment
Percentage of the amount of the drawing, whereupon the Banks shall
(subject to Section 3.03(d)) each be deemed to have made a Revolving
Loan consisting of a Base Rate Loan to the Borrower in that amount. If
any Bank so notified shall fail to make available to the Administrative
Agent for the account of the respective Issuing Bank the amount of such
Bank's Revolving Commitment Percentage of the amount of the drawing by
no later than 2:00 p.m. (New York City time) on the Business Day
immediately following the respective Disbursement Date, then interest
shall accrue on such Bank's obligation to make such payment, from the
Business Day immediately following the respective Disbursement Date to
the date such Bank makes such payment, at a rate per annum equal to (i)
the Federal Funds Rate in effect from time to time during the period
commencing on the later of the Business Day immediately following the
respective Disbursement Date and the date such Bank receives notice of
the Disbursement Date prior to 2:00 p.m. (New York City time) on such
date and ending on the date three Business Days thereafter, and (ii)
thereafter at the Base Rate as in effect from time to time plus the
Applicable Margin for Base Rate Loans. The Administrative Agent will
promptly give notice of the occurrence of the Disbursement Date, but
failure of the Administrative Agent to give any such notice on the
Disbursement Date or in sufficient time to enable any Bank to effect
such payment on such date shall not relieve such Bank from its
obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing which is not
converted into Revolving Loans consisting of Base Rate Loans to the
Borrower in whole or in part, because of the Borrower's failure to
satisfy the conditions set forth in Section 5.02 or for any other
reason, the Borrower shall be deemed to have incurred from the
respective Issuing Bank a Letter of Credit Borrowing in the amount of
such drawing, which Letter of Credit Borrowing shall be due and payable
on demand (together with interest) and shall bear interest from the
respective Disbursement Date at a rate per annum equal to the Base
Rate, plus the Applicable Margin for Base Rate Loans, plus in the case
of any Letter of Credit Borrowing outstanding after the Business Day
immediately following the respective Disbursement Date, 2% per annum,
and each Bank's payment to the respective Issuing Bank pursuant to
Section 3.03(c) shall be deemed payment in respect of its participation
in such Letter of Credit Borrowing.
(e) Each Bank's obligation in accordance with this Agreement
to make the Revolving Loans or fund its participation in any Letter of
Credit Borrowing, as contemplated by this Section 3.03, as a result of
a drawing under a Letter of Credit shall be absolute and unconditional
and without recourse to the respective Issuing Bank and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
defense or other right which such Bank may have against such Issuing
Bank, the Borrower or any
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other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse
Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Administrative Agent
for the account of the respective Issuing Bank of funds from the
Borrower (i) in reimbursement of any payment made by such Issuing Bank
under the Letter of Credit with respect to which any Bank has paid the
Administrative Agent for the account of such Issuing Bank for such
Bank's participation in the Letter of Credit pursuant to Section 3.03,
or (ii) in payment of interest on amounts described in clause (i), the
Administrative Agent will pay to each Bank, in the same funds as those
received by the Administrative Agent for the account of such Issuing
Bank, the amount of such Bank's Revolving Commitment Percentage of such
funds, and such Issuing Bank shall receive the amount of the Revolving
Commitment Percentage of such funds of any Bank that did not so pay the
Administrative Agent for the account of the Issuing Bank.
(b) If the Administrative Agent or any Issuing Bank is
required at any time to return to the Borrower, or to a trustee,
receiver, liquidator, custodian, or any similar official in any
Insolvency Proceeding, any portion of the payments made by the Borrower
to the Administrative Agent for the account of such Issuing Bank
pursuant to Section 3.04(a) in reimbursement of a payment made under
the Letter of Credit or interest or fee thereon, each Bank shall, on
demand of the Administrative Agent, forthwith return to the
Administrative Agent or such Issuing Bank the amount of its Revolving
Commitment Percentage of any amounts so returned by the Administrative
Agent or such Issuing Bank plus interest thereon from the date such
demand is made to the date such amounts are returned by such Bank to
the Administrative Agent or such Issuing Bank, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Borrower agree that, in paying any
drawing under a Letter of Credit, no Issuing Bank shall have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document.
(b) No Issuing Bank nor any of the respective correspondents,
participants or assignees of such Issuing Bank shall be liable to any
Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Required Banks; (ii) any action
taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any Letter of Credit Related Document.
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(c) The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit. No Issuing Bank nor any of the respective
correspondents, participants or assignees of such Issuing Bank, shall
be liable or responsible for any of the matters described in clauses
(i) through (vii) of Section 3.06; provided, however, that the Borrower
may have a claim against such Issuing Bank, and such Issuing Bank may
be liable to the Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered
by the Borrower which the Borrower proves were caused by such Issuing
Bank's willful misconduct or gross negligence or such Issuing Bank's
willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) each Issuing Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary;
and (ii) such Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting
to transfer or assign a 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.
3.06 Obligations Absolute. The obligations of the Borrower under this
Agreement and any Letter of Credit Related Document to reimburse the respective
Issuing Bank for a drawing under a Letter of Credit, and to repay any Letter of
Credit Borrowing and any drawing under a Letter of Credit converted into
Revolving Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
Letter of Credit Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this Agreement
or any Letter of Credit Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the Letter of Credit
Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrower or any Subsidiary of the Borrower may have at
any time against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the respective Issuing Bank or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the Letter of Credit Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate 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; or any loss or delay in the
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transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the respective Issuing Bank under any
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of any Letter of Credit; or any
payment made by the respective Issuing Bank under any Letter of Credit
to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the obligations of
the Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower or a guarantor.
3.07 Cash Collateral Pledge. Upon (a) the request of the Administrative
Agent, (i) if any Issuing Bank has honored any full or partial drawing request
on any Letter of Credit and such drawing has resulted in a Letter of Credit
Borrowing hereunder, or (ii) if, as of the Revolving Termination Date, any
Letters of Credit may for any reason remain outstanding and partially or wholly
undrawn, or (b) the occurrence of the circumstances described in Section 2.07(a)
requiring the Borrower to Cash Collateralize Letters of Credit, then the
Borrower shall immediately Cash Collateralize the Letter of Credit Obligations
in an amount equal to such Letter of Credit Obligations (or in the case of
clause (ii) above, the excess amount required pursuant to Section 2.07(a)) and
such cash will be held as security for all Obligations of the Borrower to the
Banks hereunder in a cash collateral account to be established by the
Administrative Agent, and during the existence of an Event of Default, the
Administrative Agent may, upon the request of the Required Banks, apply such
amounts so held to the payment of such outstanding Obligations.
3.08 Letter of Credit Fees.
(a) The Borrower shall pay to the Administrative Agent for the
account of each Bank a letter of credit fee with respect to the Letters
of Credit computed on the daily maximum amount available to be drawn of
the outstanding Letters of Credit, on each Interest Payment Date for
Base Rate Loans based upon Letters of Credit outstanding for the
previous three-month period. The letter of credit fee shall be equal to
(i) for the period from the Closing Date to the First Adjustment Date,
2.500% per annum and (ii) from and after the First Adjustment Date, for
each period commencing on an Adjustment Date to the next succeeding
Adjustment Date, the rate per annum set forth below opposite the
relevant Level of Consolidated Total Leverage Ratio determined as at
the end of the last fiscal quarter ended prior to the first day of such
period:
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Consolidated Total Leverage Ratio
Level I 1.250%
Level II 1.625%
Level III 1.875%
Level IV 2.125%
Level V 2.250%
Level VI 2.500%
provided, however, that if by the day for determining any Adjustment
Date Holdings has failed to deliver a Total Leverage Ratio Certificate
as at the end of the fiscal quarter ended immediately prior to such
Adjustment Date, the letter of credit fee for the next succeeding
period beginning on such Adjustment Date to the next succeeding
Adjustment Date shall be computed as if the Consolidated Total Leverage
Ratio were at Level VI; provided further, however, to the extent that
Holdings thereafter delivers a Total Leverage Ratio Certificate in
respect of such preceding fiscal quarter during such succeeding period,
the letter of credit fee for the remainder of such succeeding period
shall be computed at the rate prescribed in the table above in this
Section 3.08(a). In addition, at any time that a Specified Default
shall exist, the letter of credit fee shall be computed as if the
Consolidated Total Leverage Ratio were at Level VI. Such letter of
credit fee shall be due and payable in arrears on each Interest Payment
Date for Base Rate Loans.
(b) The Borrower shall pay to such Issuing Bank a letter of
credit fronting fee for each Letter of Credit issued by such Issuing
Bank equal to .15% per annum of the face amount of such Letter of
Credit. Such Letter of Credit fronting fee shall be due and payable in
arrears on each Interest Payment Date for Base Rate Loans.
(c) The Borrower shall pay to such Issuing Bank from time to
time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such Issuing
Bank relating to letters of credit as from time to time in effect.
3.09 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as most recently published by the International Chamber of
Commerce shall in all respects be deemed a part of this Article III as if
incorporated herein and (unless otherwise expressly provided in the Letters of
Credit) shall apply to the Letters of Credit.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
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(a) Subject to Section 4.01(g), any and all payments made by
Holdings and the Borrower to any Bank or the Administrative Agent under
this Agreement shall be made without setoff, counterclaim or other
defense and shall be made free and clear of, and without deduction or
withholding for or on account of, any and all present or future taxes,
levies, imposts, deductions, duties, fees, assessments, charges or
withholdings or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments, and all
liabilities with respect thereto, excluding, in the case of each Bank
and the Administrative Agent (except as otherwise provided in Section
4.01(c)), as the case may be, such taxes as are imposed on or measured
by such Person's net income or net profits by the jurisdiction under
the laws of which such Person is organized or has its principal office
or in which the Lending Office of such Person is located or any
political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, duties, fees, assessments or other charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Borrower and Holdings shall pay any
present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) Subject to Section 4.01(g), the Borrower and Holdings
shall indemnify and hold harmless each Bank and the Administrative
Agent for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under Section 4.01(d) and this Section 4.01(c)) and (ii) the full
amount of all taxes imposed on or measured by the net income or net
profits of such Bank or the Administrative Agent pursuant to the laws
of the jurisdiction in which such Bank or the Administrative Agent is
organized or has its principal office or in which the Lending Office of
such Person is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction in which such Bank or the
Administrative Agent is organized or has its principal office or in
which their Lending Office is located paid by such Bank or the
Administrative Agent as a result of amounts payable by the Borrower
under Section 4.01(d) and this Section 4.01(c), and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such taxes or other
liabilities were correctly or legally asserted.
(d) If the Borrower or Holdings shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Bank or the Administrative Agent, then,
subject to Section 4.01(g):
(i) the sum payable shall be increased as necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 4.01(d)) such Bank or the Administrative Agent,
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as the case may be, receives an amount equal to the sum it
would have received had no such deductions or withholdings
been made;
(ii) the Borrower or Holdings shall make such
deductions; and
(iii) the Borrower or Holdings shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the
Borrower or Holdings of Taxes or Other Taxes is due pursuant to
applicable law, such Person shall furnish to the Administrative Agent,
at its address referred to in Section 12.02, the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(f) Each Bank which is organized under the laws of a
jurisdiction outside the United States agrees that:
(i) it shall, no later than the Closing Date (or, in
the case of a Bank which becomes a party hereto pursuant to
Section 12.07 after the Closing Date, the date upon which such
Bank becomes a party hereto) (A) deliver to the Borrower and
the Administrative Agent two accurate and complete signed
originals of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"), or two accurate and complete
signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001"), as appropriate, in each case
indicating that such Bank is on the date of delivery thereof
entitled to receive all payments under this Agreement free
from withholding of United States Federal income tax or (B) if
the Bank is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Form 1001
or 4224 pursuant to clause (A) above, deliver to the Borrower
and the Administrative Agent (x) a certificate substantially
in the form of Exhibit O (any such certificate, a "Section
4.01(f)(i) Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8 or
any successor thereto ("Form W-8") certifying to such Bank's
entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be
made under this Agreement;
(ii) if at any time such Bank makes any change in its
place of incorporation or fiscal residence necessitating a new
Form 4224 or Form 1001 or Form W-8 and a Section 4.01(f)(i)
Certificate, as the case may be, such Bank shall promptly
deliver to the Borrower and the Administrative Agent in
replacement for, or in addition to, the forms previously
delivered by such Bank hereunder, two accurate and complete
signed originals of Form 4224 or Form 1001 or Form W-8 and
Section 4.01(f)(i) Certificate, as appropriate, in each case
indicating that such Bank is on the date of delivery thereof
entitled to receive all payments under this Agreement free
from withholding of United States Federal income tax;
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(iii) it shall, to the extent it is legally entitled
to do so, before or promptly after such Bank makes any change
of a Lending Office or its principal office, or the occurrence
of any event (including the passing of time but excluding any
event mentioned in clause (ii) above) requiring a change in or
renewal of the most recent Form 4224 or Form 1001 or Form W-8
and a Section 4.01(f)(i) Certificate, as the case may be,
previously delivered by such Bank, deliver to the Borrower and
the Administrative Agent two accurate and complete original
signed copies of Form 4224 or Form 1001 or Form W-8 and a
Section 4.01(f)(i) Certificate, as appropriate, in replacement
for the forms previously delivered by such Bank indicating
that such Bank continues to be entitled to receive all
payments under this Agreement free from any withholding of any
United States Federal income tax;
(iv) it shall, to the extent it is legally entitled
to do so, promptly upon the Borrower's or the Administrative
Agent's reasonable request to that effect, deliver to the
Borrower or the Administrative Agent (as the case may be) such
other forms or similar documentation as may be required from
time to time by any applicable law, treaty, rule or regulation
in order to establish such Bank's complete exemption from
withholding on all payments under this Agreement; and
(v) without limiting or restricting any Bank's right
to increased amounts under Section 4.01(d) from the Borrower
and Holdings upon satisfaction of such Bank's obligations
under the provisions of this Section 4.01(f), if such Bank is
entitled to a reduction in the applicable withholding tax, the
Administrative Agent may (but shall not be obligated to)
withhold from any interest payable to such Bank an amount
equivalent to the applicable withholding tax after taking into
account such reduction. If the forms or other administrative
documentation required by clause (i) are not delivered to the
Administrative Agent, then the Administrative Agent shall
withhold from any interest payment to any Bank not providing
such forms or other documentation, an amount equivalent to the
applicable withholding tax and in addition, the Administrative
Agent shall also withhold against periodic payments other than
interest payments to the extent United States withholding tax
is not eliminated by obtaining Form 4224 or Form 1001 or Form
W-8 and a Section 4.01(f)(i) Certificate, as appropriate. The
Borrower shall indemnify and hold harmless the Administrative
Agent and each of its officers, directors, employees, counsel,
agents and attorney-in-fact, on an after tax basis, from and
against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including Attorney Costs) of any kind
whatsoever incurred as a result of or in connection with the
Administrative Agent's failure to withhold as provided
pursuant to the preceding sentence, unless such failure
constitutes gross negligence or willful misconduct of the
Administrative Agent itself as the same is determined by a
final judgment of a court of competent jurisdiction and the
obligations in this sentence shall survive payment of all
other Obligations.
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(g) Neither the Borrower nor Holdings will be required to pay
any additional amounts in respect of Taxes imposed by the United States
Federal government pursuant to Sections 4.01(c) or 4.01(d) to any Bank
if and to the extent the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank to comply with its
obligations under Section 4.01(f).
(h) Each Bank agrees that it shall, at any
time upon reasonable advance request in writing by the Borrower or the
Administrative Agent, promptly deliver such certification or other
documentation as may be required under the law or regulation in any
applicable jurisdiction and which such Bank is entitled to submit to
avoid or reduce withholding taxes on amounts to be paid by the Borrower
or Holdings and received by such Bank pursuant to this Agreement or any
other Loan Document.
(i) Subject to Section 4.01(g), the Borrower and Holdings
shall pay any additional amounts and indemnify each Bank and the
Administrative Agent, to the extent required by this Section 4.01
within 30 days after receipt of written request from such Bank or the
Administrative Agent thereof accompanied by a written statement
describing in reasonable detail the Taxes or Other Taxes or other
additional amounts that are the subject of the basis for such indemnity
and the computation of the amount payable.
(j) If the Borrower or Holdings is required to pay additional
amounts to any Bank or the Administrative Agent pursuant to Section
4.01(d), then such Bank shall, upon the Borrower's request, use its
reasonable best efforts (consistent with policy considerations of such
Bank) to change the jurisdiction of its Lending Office so as to reduce
or eliminate any such additional payment which may thereafter accrue if
such change in the sole judgment of such Bank is not otherwise
disadvantageous to such Bank.
(k) Each Bank agrees that it will (i) take all reasonable
actions reasonably requested by Holdings or the Borrower (consistent
with policy considerations by such Bank) to maintain all exemptions, if
any, available to it from withholding taxes (whether available by
treaty or existing administrative waiver), and (ii) to the extent
reasonable, otherwise cooperate with Holdings or the Borrower to
minimize any amounts payable by Holdings or the Borrower under this
Section 4.01, in any case described in the preceding clauses (i) and
(ii), however, only if such action or cooperation is not
disadvantageous to such Bank in the sole judgment of such Bank.
4.02 Illegality.
(a) If any Bank shall determine that (i) the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in
the interpretation or administration thereof, has made it unlawful, or
(ii) any central bank or other Governmental Authority has asserted that
it is unlawful for such Bank or its Lending Office to make a Eurodollar
Loan or to convert any Base Rate Loan to a Eurodollar Loan, then, on
notice thereof by such Bank to the Borrower through the Administrative
Agent, the obligation of such Bank to make or convert any such
Eurodollar Loans shall be suspended until such Bank
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shall have notified the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain
any Eurodollar Loan, the Borrower shall, unless otherwise permitted
under paragraph (c) below, prepay in full all Eurodollar Loans of such
Bank then outstanding, together with interest accrued thereon, either
on the last day of the Interest Period thereof if such Bank may
lawfully continue to maintain such Eurodollar Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such
Eurodollar Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 4.04.
(c) If the Borrower is required to prepay any Eurodollar Loan
immediately, then concurrently with such prepayment, the Borrower shall
borrow from the affected Bank, in the aggregate amount of such
repayment, Base Rate Loans.
(d) Before giving any notice to the Administrative Agent
pursuant to this Section 4.02, the affected Bank shall designate a
different Lending Office with respect to its Eurodollar Loans if such
designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of such Bank, be illegal,
inconsistent with the policies of such Bank or otherwise
disadvantageous to such Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank or any Issuing Bank shall determine that, due
to either (i) the introduction of or any change in or in the
interpretation or administration of any law or regulation (other than
any law or regulation relating to taxes, including those relating to
Taxes or Other Taxes) after the Closing Date or (ii) the compliance
with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) made
after the Closing Date, there shall be any increase in the cost to such
Bank of agreeing to make or making, funding or maintaining any
Eurodollar Loans or participating in any Letter of Credit Obligations,
or any increase in the cost to such Issuing Bank of agreeing to issue,
issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of
Credit, then the Borrower shall be liable for, and shall from time to
time, within ten days of demand therefor by such Bank or such Issuing
Bank, as the case may be (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account
of such Bank or such Issuing Bank, additional amounts as are sufficient
to compensate such Bank or the Issuing Bank for such increased costs.
(b) If any Bank or any Issuing Bank shall have determined that
(i) the introduction of any Capital Adequacy Regulation after the
Closing Date, (ii) any change in any Capital Adequacy Regulation after
the Closing Date, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof after the Closing Date, or (iv) compliance by
any Bank (or its Lending Office) or any Issuing Bank, as the case may
be, or any corporation controlling such Bank or such
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Issuing Bank, as the case may be, with any Capital Adequacy Regulation
adopted after the Closing Date, affects or would affect the amount of
capital required or expected to be maintained by such Bank or such
Issuing Bank or any corporation controlling such Bank or such Issuing
Bank and (taking into consideration such Bank's, such Issuing Bank's or
such corporation's policies with respect to capital adequacy and such
Bank's, such Issuing Bank's or corporation's desired return on capital)
determines that the amount of such capital is (or is required to be)
increased as a consequence of any of its Revolving Commitment,
Revolving Loans, participations in Letters of Credit, or obligations
under this Agreement, then, within ten days of demand by such Bank or
such Issuing Bank (with a copy to the Administrative Agent), the
Borrower shall be liable for and shall immediately pay to such Bank or
such Issuing Bank, from time to time as specified by such Bank or such
Issuing Bank, additional amounts sufficient to compensate such Bank or
such Issuing Bank for such increase.
4.04 Funding Losses. The Borrower agrees to reimburse each Bank and to
hold each Bank harmless from any loss, cost or expense (other than loss of
margin) which such Bank may sustain or incur as a consequence of:
(a) any failure by the Borrower to make any payment of
principal of any Eurodollar Loan (including payments made after any
acceleration thereof) when due;
(b) any failure by the Borrower to borrow a Eurodollar Loan or
continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar
Loan after the Borrower has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/ Continuation, as the case may
be;
(c) any failure by the Borrower to make any prepayment of a
Eurodollar Loan after the Borrower has given a notice in accordance
with Section 2.06; or
(d) any payment or prepayment (including pursuant to Section
2.07, Section 2.08 or after acceleration thereof) of a Eurodollar Loan
for any reason whatsoever on a day which is not the last day of the
Interest Period with respect thereto;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain any Eurodollar Loan hereunder or from fees
payable to terminate the deposits from which such funds were obtained.
4.05 Inability to Determine Rates. Notwithstanding any provisions
herein to the contrary, if, in relation to any proposed Eurodollar Loan, (a) the
Administrative Agent shall have reasonably determined (which determination shall
be conclusive and binding upon all parties hereto) that by reason of
circumstances affecting the interbank markets adequate and fair means do not
exist for ascertaining the Eurodollar Rate to be applicable to such Eurodollar
Loan or (b) the Administrative Agent shall have received notice from the
Required Banks that LIBOR determined or to be determined for any Interest Period
will not adequately and fairly reflect the cost to such Banks (as conclusively
certified by such Banks in writing to the Administrative Agent and the Borrower)
of making or maintaining their affected Loans during such affected
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Interest Period, then, the obligation of the Banks to make, continue or maintain
Eurodollar Loans or to convert Base Rate Loans into Eurodollar Loans shall be
suspended until the Administrative Agent upon the instruction of the Required
Banks revokes such notice in writing. If, notwithstanding the provisions of this
Section 4.05, any Bank has made available to the Borrower its Commitment
Percentage of any such proposed Eurodollar Loan, then such Eurodollar Loan shall
immediately be converted into a Base Rate Loan.
4.06 Increased Costs on Eurodollar Loans. At any time that any Bank
shall incur increased costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Loans (other than any increased cost or
reduction in the amount received or receivable resulting from the imposition of
or a change in the rate of net income taxes or similar charges) because of (x)
any change since the date of this Agreement in any Requirement of Law or
governmental guideline, order or request (whether or not having the force of
law), or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline, order
or request (such as, for example, but not limited to, a change in official
reserve requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of LIBOR) and/or (y)
other circumstances affecting such Bank, the interbank Eurodollar market or the
position of such Bank in such market, then the Borrower shall pay to each such
Bank, upon written demand therefor (accompanied by the written notice referred
to in Section 4.07 below), such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Bank in its sole discretion shall determine) as shall be required to compensate
such Bank for such increased costs or reductions in amounts received or
receivable hereunder.
4.07 Certificates of Banks. Any Bank or any Issuing Bank claiming
reimbursement or compensation pursuant to this Article IV shall deliver to the
Borrower or Holdings, as applicable (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail (including the basis therefor and
the calculation thereof) the amount payable to such Person hereunder and such
certificate shall be conclusive and binding on the Borrower or Holdings in the
absence of manifest error. In determining any amounts payable under Section
4.03(b), each Bank or each Issuing Bank, as the case may be, shall act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable.
4.08 Change of Lending Office, Replacement Bank, etc.
(a) Each Bank agrees that upon the occurrence of an event
giving rise to the operation of Section 4.02, 4.03 or 4.06 with respect
to such Bank, it will if so requested by the Borrower, use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Lending Office for any Revolving
Loans affected by such event with the object of avoiding the
consequence of the event giving rise to the operation of such section;
provided, however, that such designation would not, in the sole
judgment of such Bank, be otherwise disadvantageous to such Bank.
Nothing in this Section 4.08(a) shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in
Section 4.02, 4.03 or 4.06.
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(b) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, (x) upon the occurrence of any event
that obligates the Borrower or Holdings to pay any amount under Section
4.01 or giving rise to the operation of Section 4.02, 4.03 or 4.06 with
respect to such Bank or (y) as provided in Section 12.01(b) in the case
of certain refusals by a Bank to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Banks, the Borrower shall have
the right, if no Default or Event of Default then exists or will exist
immediately after giving effect to the respective replacement, to
replace such Bank (the "Replaced Bank") by designating another Bank or
an Eligible Assignee (such Bank or Eligible Assignee being herein
called a "Replacement Bank") to which such Replaced Bank shall assign,
in accordance with Section 12.07 and without recourse to or warranty
by, or expense to, such Replaced Bank, any of the rights and
obligations of such Replaced Bank hereunder (except for such rights as
survive repayment of the Revolving Loans), and, upon such assignment,
such Replaced Bank shall no longer be a party hereto or have any rights
hereunder and such Replacement Bank shall succeed to the rights and
obligations of such Replaced Bank hereunder. The Borrower shall pay to
such Replaced Bank in same day funds on the date of replacement all
interest, fees and other amounts then due and owing such Replaced Bank
by the Borrower hereunder to and including the date of replacement,
including, without limitation, costs incurred under Sections 4.01,
4.02, 4.03 or 4.06.
4.09 Survival. The agreements and obligations of Holdings and the
Borrower in this Article IV shall survive the payment of all other Obligations.
ARTICLE V.
CONDITIONS PRECEDENT
5.01 Conditions to Revolving Loans and Letters of Credit on the Closing
Date. The occurrence of the Closing Date, the obligation of each Bank to make
Revolving Loans hereunder and the obligation of each Issuing Bank to issue
Letters of Credit on the Closing Date is subject to the condition that the
Administrative Agent and the Syndication Agent shall be reasonably satisfied
that the following conditions have been satisfied on or before the Closing Date
and, to the extent applicable, shall have received on or before the date for
making such Revolving Loans and/or issuing such Letters of Credit all of the
following, in form and substance reasonably satisfactory to the Administrative
Agent, the Syndication Agent and each Bank and (except for the instruments or
documents representing Pledged Securities) in sufficient copies for each Bank:
(a) Credit Agreement. This Agreement executed by the Borrower,
Holdings, the Administrative Agent, each Issuing Bank and each of the
Banks (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Administrative Agent in
form satisfactory to it of facsimile or other written confirmation from
such party of execution of a counterpart hereof by such party).
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(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the Board of
Directors of the Borrower approving and authorizing the
execution, delivery and performance by the Borrower of this
Agreement and the other Loan Documents to be delivered by the
Borrower, and authorizing the borrowing of the Revolving Loans
and the issuance of the Letters of Credit, certified as of the
Closing Date by the Secretary or an Assistant Secretary of the
Borrower;
(ii) Copies of the resolutions of the Board of
Directors of Holdings approving and authorizing the execution,
delivery and performance by Holdings of this Agreement
(including the guaranty of the Obligations of the Borrower)
and the other Loan Documents to be delivered by Holdings,
certified by the Secretary or an Assistant Secretary of
Holdings;
(iii) Copies of the resolutions of the Board of
Directors of each Subsidiary Guarantor approving and
authorizing the execution, delivery and performance by such
Subsidiary Guarantor of the Subsidiary Guaranty, the Pledge
Agreement, the Security Agreement and the other Loan Documents
to be delivered by such Subsidiary Guarantor, certified by the
Secretary or an Assistant Secretary of such Subsidiary
Guarantor; and
(iv) Certificates of the Secretary or Assistant
Secretary of Holdings, the Borrower and each Subsidiary
Guarantor certifying the names and true signatures of the
officers of Holdings, the Borrower and such Subsidiary
Guarantor authorized to execute, deliver and perform, as
applicable, this Agreement and all other Loan Documents,
notices, requests and other communications to be delivered
hereunder or thereunder.
(c) Articles of Incorporation; By-laws and Good Standing. Each
of the following documents:
(i) the articles or certificate of incorporation (or
equivalent organizational documents) of Holdings, the Borrower
and each Subsidiary Guarantor as in effect on the Closing
Date, certified by the Secretary of State (or similar,
applicable Governmental Authority) of the State of such Credit
Party's organization as of a recent date and by the Secretary
or Assistant Secretary of Holdings, the Borrower and such
Subsidiary Guarantor as of the Closing Date, and the bylaws
(or equivalent organizational documents) of Holdings, the
Borrower and such Subsidiary Guarantor as in effect on the
Closing Date, certified by the Secretary or Assistant
Secretary of Holdings, the Borrower and each Subsidiary
Guarantor as of the Closing Date;
(ii) a good standing certificate for Holdings, the
Borrower and each Subsidiary Guarantor from the Secretary of
State of the State of such Credit Party's organization and
each state where Holdings, the Borrower and each
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Subsidiary Guarantor is qualified to do business as a foreign
corporation as of a recent date; and
(iii) a bring-down certificate, to the extent
reasonably available, of Holdings, the Borrower and each
Subsidiary Guarantor from the Secretary of State of the State
of such Credit Party's organization, dated the Closing Date.
(d) Subsidiary Guaranty. The Subsidiary Guaranty, duly
executed by each Subsidiary Guarantor.
(e) Pledge Agreement.
(i) The Pledge Agreement, duly executed by each
Credit Party;
(ii) all certificated Pledged Securities (x) endorsed
in blank in the case of promissory notes representing Pledged
Securities and (y) together with an undated stock power
executed in blank in the case of capital stock representing
Pledged Securities; and
(iii) with respect to Pledged Securities, if any,
consisting of book-entry shares, evidence that all actions
described in the Pledge Agreement which are necessary to
create and perfect the security interests pursuant to the
Pledge Agreement in accordance with Articles 8 and 9 of the
UCC have been taken.
(f) Security Agreement.
(i) The Security Agreement, duly executed by each
Credit Party;
(ii) proper Financing Statements (Form UCC-1 or the
equivalent) fully executed for filing under the UCC or other
appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Administrative
Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(iii) certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent reports, listing all
effective financing statements that name any Credit Party or
any of its Subsidiaries as debtor and that are filed in the
jurisdictions referred to in clause (ii) above, together with
copies of such other financing statements that name any Credit
Party or any of its Subsidiaries as debtor (none of which
shall cover the Collateral except to the extent evidencing
Permitted Liens or in respect of which the Administrative
Agent shall have received termination statements (Form UCC-3)
or such other termination statements as shall be required by
local law fully executed for filing);
(iv) evidence of the completion of all other
recordings and filings of, or with respect to, the Security
Agreement as may be necessary or, in the reasonable
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opinion of the Administrative Agent, desirable to perfect the
security interests intended to be created by the Security
Agreement; and
(v) evidence that all other actions necessary or, in
the reasonable opinion of the Administrative Agent, desirable
to perfect and protect the security interests purported to be
created by the Security Agreement have been taken.
(g) Legal Opinions.
(i) An opinion of Jones, Day, Reavis & Pogue, counsel
to Holdings, the Borrower and the Subsidiary Guarantors,
addressed to the Administrative Agent and the Banks,
containing opinions substantially in the form of Exhibit H and
as to such other matters as the Administrative Agent may
reasonably request; and
(ii) An opinion of White & Case LLP, special counsel
to the Administrative Agent and the Banks, containing opinions
substantially in the form of Exhibit I.
(h) Payment of Fees and Expenses. Evidence that all fees,
costs and expenses (including Attorney Costs of the Administrative
Agent and the Syndication Agent) payable by the Borrower on or before
the Closing Date have been paid to the extent then invoiced.
(i) Certificates.
(i) Certificates signed by a Responsible Officer of
Holdings and the Borrower, dated the Closing Date stating
that:
(A) The representations and warranties of
Holdings and the Borrower contained in Article VI and
in the other Loan Documents to which they are a party
are true and correct in all material respects on and
as of such date, as though made on and as of such
date (except to the extent such representations and
warranties expressly relate to an earlier date, in
which case such representations and warranties shall
be true and correct in all material respects as of
such earlier date);
(B) no Default or Event of Default exists or
would result from any Borrowing on the Closing Date;
and
(C) the conditions set forth in paragraphs
(k), (l) and (m)(i) of this Section 5.01 have been
satisfied; and
(ii) Certificates signed by a Responsible Officer of
each of the Subsidiary Guarantors, dated as of the Closing
Date, stating that the representations and warranties of such
Subsidiary Guarantor contained in the
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Subsidiary Guaranty, the Pledge Agreement and the Security
Agreement are true and correct in all material respects on and
as of such date, as though made on and as of such date (except
to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations
and warranties shall be true and correct in all material
respects as of such earlier date).
(j) Solvency Certificate. A solvency certificate from Mr. Anup
Bagaria, Vice President of Holdings in the form of Exhibit N.
(k) Adverse Change. Since September 30, 1997, nothing shall
have occurred (and neither the Administrative Agent, the Syndication
Agent nor the Banks shall have become aware of any facts or conditions
not previously known) which the Administrative Agent, the Syndication
Agent or the Required Banks shall reasonably determine has had, or
could reasonably be expected to have, a Material Adverse Effect.
(l) Governmental and Third Party Approvals. All governmental
and third party approvals and consents necessary in connection with
this Agreement and the other Loan Documents shall have been obtained
and be in full force and effect.
(m) Litigation. There shall be no actions, suits or
proceedings pending or threatened (i) with respect to any Loan Document
or (ii) which the Administrative Agent, the Syndication Agent or the
Required Banks shall reasonably determine could reasonably be expected
to have a Material Adverse Effect.
(n) Shareholders' Agreements, Management Agreements and Tax
Sharing Agreements.
(i) All agreements entered into by Holdings or any of
its Subsidiaries governing the terms and relative rights of
its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its
capital stock;
(ii) all tax sharing, tax allocation or similar
agreements, if any, entered into by Holdings or any of its
Subsidiaries; and
(iii) all material management and consulting
agreements entered into by Holdings or any of its
Subsidiaries.
(o) Financial Statements.
(i) The Pro Forma Balance Sheet;
(ii) the Projections;
(iii) the audited consolidated financial statements
of each of Old ALM and NLP for their 1995 and 1996 fiscal
years, (x) the unaudited consolidated financial statements
of Old ALM for the seven-month period ended July 31, 1997,
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(y) the unaudited consolidated financial statements of NLP for
the nine-month period ended September 30, 1997 and (z) the
unaudited consolidated financial statements of the Borrower
for the two-month period ended September 30, 1997; and
(iv) a draft of the audited consolidated financial
statements of Holdings for its fiscal year ended December 31,
1997.
(p) Insurance. Evidence of insurance complying with the
requirements of Section 7.05 for the business and properties of
Holdings and its Subsidiaries.
5.02 Conditions to all Borrowings and the Issuance of any Letters of
Credit. The obligation of each Bank to make any Revolving Loan hereunder and the
obligation of each Issuing Bank to issue, renew or amend any Letter of Credit is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date or date of issuance, as the case may be:
(a) Notice. The Administrative Agent shall have received a
Notice of Borrowing; or in the case of any issuance of any Letter of
Credit, the respective Issuing Bank and the Administrative Agent shall
have received a Letter of Credit Application, as required under Section
3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI and in the other
Loan Documents shall be true and correct in all material respects on
and as of such Borrowing Date or date of issuance (except to the extent
such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct in all material respects
as of such earlier date);
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or issuance of such Letter of
Credit; and
(d) No Material Adverse Effect. Since September 30, 1997, no
events have occurred which, individually or in the aggregate, have had,
or could reasonably be expected to have, a Material Adverse Effect.
(e) Financial Statements. The Administrative Agent and the
Syndication Agent shall have received, and shall be reasonably
satisfied with, the draft of the audited consolidated financial
statements of Holdings for its fiscal year ended December 31, 1997.
Each Notice of Borrowing or Letter of Credit Application submitted by the
Borrower hereunder shall be deemed to constitute a representation and warranty
by Holdings and the Borrower hereunder, as of the date of each such notice or
application and as of the date of each Borrowing that the applicable conditions
in Section 5.01 (with respect to such credit events to occur on the
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Closing Date) and in this Section 5.02 (with respect to credit events to occur
on and after the Closing Date) are satisfied.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants with respect
to itself and its Subsidiaries to the Administrative Agent, each Issuing Bank
and each Bank as of the Closing Date and as of the date of each Borrowing of
Revolving Loans or issuance, renewal or amendment of each Letter of Credit that:
6.01 Existence and Power. Each of Holdings and each of its
Subsidiaries:
(a) is a corporation, partnership or limited liability
company, as the case may be, duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization;
(b) has the power and authority and has or will have on or
prior to the date required to be obtained all governmental licenses,
authorizations, consents and approvals to execute, deliver and perform
its obligations under the Loan Documents to which it is a party and has
duly executed and delivered each such Loan Document, in each case other
than filings necessary to perfect the security interest in the
Collateral under the Security Agreement (which filings have been made
to the extent that this representation and warranty is made (or deemed
made) after 10 days after the Closing Date);
(c) is duly qualified to do business, and is licensed and in
good standing, under the laws of each jurisdiction where its ownership,
lease or operation of property or the nature or conduct of its business
requires such qualification or license except where the failure so to
qualify, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to
the extent that the failure to do so, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.02 Authorization; No Contravention. The execution, delivery and
performance by each of Holdings and each of its Subsidiaries of any Loan
Document to which such Person is party have been duly authorized by all
necessary corporate, partnership or limited liability company action, as the
case may be, and do not and will not:
(a) contravene the terms of any of such Person's charter or
by-laws (or equivalent organizational documents);
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(b) conflict with or result in any breach or contravention of,
or the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Collateral Documents) under,
any document evidencing any material Contractual Obligation to which
such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject;
or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, Holdings or any
of its Subsidiaries of any Loan Document to which any such Person is a party, in
each case other than filings necessary to perfect the security interest in the
Collateral under the Security Agreement (which filings have been made to the
extent that this representation and warranty is made (or deemed made) after 10
days after the Closing Date).
6.04 Binding Effect. This Agreement and each other Loan Document to
which Holdings or any of its Subsidiaries is a party constitute the legal, valid
and binding obligations of Holdings and each of its Subsidiaries to the extent
such Person is a party thereto, enforceable against such Person in accordance
with their respective terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles of general
applicability.
6.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of Holdings or the Borrower,
threatened at law, in equity, in arbitration or before any Governmental
Authority, against Holdings or any of its Subsidiaries or any of their
respective properties or assets which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document; or
(b) either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
6.06 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by Holdings, the Borrower or any
Subsidiary Guarantor. Neither Holdings nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligation in any respect which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.07 ERISA Compliance. Schedule 6.07 sets forth, as of the Closing
Date, each Plan; each Plan (and each related trust, insurance contract or fund)
is in substantial compliance with its terms and with all applicable laws,
including, without limitation, ERISA and the Code; each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event
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has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability that is in excess of $100,000 and the aggregate Unfunded
Current Liabilities in respect of all Plans does not exceed $1,000,000; no Plan
which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the Code
or ERISA, or has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions
required to be made with respect to a Plan have been timely made; neither
Holdings nor any Subsidiary of Holdings nor any ERISA Affiliate has incurred any
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the Code or expects to incur any such material liability under any of
the foregoing sections with respect to any Plan; no condition exists which
presents a material risk to Holdings or any Subsidiary of Holdings or any ERISA
Affiliate of incurring a material liability to or on account of a Plan pursuant
to the foregoing provisions of ERISA and the Code; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan which is
subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending, expected
or threatened; using actuarial assumptions and computation methods consistent
with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of
Holdings and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the Closing Date, or if later, the date of the
most recent Borrowing Date or the date of the most recent issuance of a Letter
of Credit, would not exceed $250,000; each group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has
covered employees or former employees of Holdings, any Subsidiary of Holdings or
any ERISA Affiliate has at all times been operated in substantial compliance
with the provisions of Part 6 of subtitle B of Title I of ERISA and Section
4980B of the Code; no lien imposed under the Code or ERISA on the assets of
Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists or is
likely to arise on account of any Plan; and Holdings and its Subsidiaries may
cease contributions to or terminate any employee benefit plan maintained by any
of them without incurring any material liability.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Revolving
Loans are intended to be and shall be used solely for the purposes set forth in
and permitted by Section 7.13.
6.09 Title to Properties. Holdings and each of its Subsidiaries have
good record and marketable title in fee simple to, or valid leasehold interests
in, all material property owned or leased by them, free and clear of all Liens
other than Permitted Liens.
6.10 Taxes. Each of Holdings and each of its Subsidiaries has filed all
federal and state income tax returns and all other material tax returns,
domestic and foreign, required to be filed by it (after giving effect to all
extensions duly obtained) and has paid all taxes and
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assessments payable by it (after giving effect to all extensions duly obtained)
which have become due, except for taxes contested in good faith and adequately
disclosed and fully provided for on the financial statements of Holdings and its
Subsidiaries in accordance with GAAP. Holdings and each of its Subsidiaries have
at all times paid, or have provided adequate reserves (in the good faith
judgment of the management of Holdings) for the payment of, all federal, state,
local and foreign income taxes applicable for all prior fiscal years and for the
current fiscal year to date. There is no material action, suit, proceeding,
investigation, audit or claim now pending or, to the best knowledge of Holdings
and the Borrower threatened, by any authority regarding any taxes relating to
Holdings or any of its Subsidiaries. Except for extensions of the time to file
tax returns that have been duly obtained, as of the Closing Date, neither
Holdings nor any of its Subsidiaries has entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Holdings or any of
its Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of Holdings or any of its Subsidiaries not to be
subject to the normally applicable statute of limitations.
6.11 Financial Statements. All balance sheets, statements of operations
and other financial data of Holdings and its Subsidiaries which have been or
shall hereafter be furnished to the Administrative Agent and the Banks for the
purposes of or in connection with this Agreement or any transaction contemplated
hereby have been prepared in accordance with GAAP and do and will present
fairly, in all material respects, the financial condition of Holdings and its
Subsidiaries as of the dates thereof and the results of their operations for the
period(s) covered thereby. The Projections which have been furnished by (or on
behalf of) Holdings pursuant to Section 5.01(o)(ii) represent management's good
faith estimates of future performance based upon historical financial
information and assumptions which management believes to be reasonable, it being
recognized that such projections are not to be viewed as facts and do not
constitute a warranty as to the future performance of Holdings or its
Subsidiaries and that actual results may vary from projected results and such
variances may be material.
6.12 Securities Law, etc.; Compliance. All transactions contemplated by
this Agreement and the other Loan Documents comply with (x) Regulations G, T, U
and X of the Federal Reserve Board and (y) all other applicable laws and any
rules and regulations thereunder.
6.13 Governmental Regulation. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940 or
a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a holding
company", within the meaning of the Public Utility Holding Company Act of 1935.
6.14 Labor Controversies. There are no labor controversies pending or,
to the best of Holdings' and the Borrower's knowledge, threatened against it or
any of its Subsidiaries which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
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6.15 Subsidiaries. Holdings has no Subsidiaries, except, on the Closing
Date, those Subsidiaries which are identified in Schedule 6.15 and, thereafter,
those Subsidiaries permitted to be formed or acquired in compliance with the
terms hereof.
6.16 Patents, Trademarks, etc. Each of Holdings and each of its
Subsidiaries owns (or is licensed to use) and possesses all such patents, patent
rights, trademarks, trademark rights, trade names, trade name rights, service
marks, service mark rights, copyrights, permits, licenses and authorizations as
it considers necessary for the conduct of the business of Holdings and its
Subsidiaries as now conducted without, individually or in the aggregate, any
infringement upon rights of other Persons which could reasonably be expected to
have a Material Adverse Effect.
6.17 Accuracy of Information. All factual information heretofore or
contemporaneously herewith furnished by or on behalf of Holdings or any of its
Subsidiaries in writing to the Administrative Agent or any Bank for purposes of
or in connection with this Agreement or any transaction contemplated hereby and
all other such factual information hereafter furnished by or on behalf of
Holdings or any of its Subsidiaries to the Administrative Agent or any Bank will
be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information, in the light of the
circumstances existing at the time such information was delivered, not
misleading.
6.18 Hazardous Materials. Neither Holdings nor any of its Subsidiaries
have caused or permitted any Hazardous Material to be disposed of or otherwise
released, either from, on or under any property currently or formerly legally or
beneficially owned, leased or operated by, or otherwise used by, Holdings or any
of its Subsidiaries, which, either individually or in the aggregate, has or
could reasonably be expected to have a Material Adverse Effect. No such property
has ever been used as a dump site or storage site for any Hazardous Materials or
otherwise contains or contained Hazardous Materials, which, either individually
or in the aggregate, has or could reasonably be expected to have a Material
Adverse Effect. The failure, if any, of Holdings or any of its Subsidiaries, in
connection with their current and former properties or their businesses, to be
in compliance with any Environmental Law or to obtain any permit, certificate,
license, approval and other authorization under such Environmental Laws has not
had, nor is reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries have entered into, have agreed to or are subject to any judgment,
decree or order or other similar requirement of any Governmental Authority under
any Environmental Law, including without limitation, relating to compliance or
to investigation, cleanup, remediation or removal of Hazardous Materials, which,
either individually or in the aggregate, has or could reasonably be expected to
have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries
have contractually assumed any liabilities or obligations under any
Environmental Law which, either individually or in the aggregate, have or could
reasonably be expected to have a Material Adverse Effect. There are no facts or
circumstances which exist that could reasonably be expected to give rise to
liabilities with respect to Hazardous Materials or any Environmental Law, which,
either individually or in the aggregate, have or could reasonably be expected to
have a Material Adverse Effect.
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6.19 Collateral Documents.
(i) The provisions of the Pledge Agreement will be, on and
after the Closing Date, effective to create, in favor of the Collateral
Agent for the benefit of the Banks and the Collateral Agent, legal,
valid and enforceable security interests in all of the Collateral
described therein, and upon the taking of and continued possession of
such Collateral by the Collateral Agent on or prior to the Closing
Date, the Pledge Agreement shall constitute, as of and after the
Closing Date, a fully perfected security interest in such Collateral
superior in right to any other security interests, existing or future,
which any Person may have against such Collateral, except to the
extent, if any, otherwise provided in the Pledge Agreement; and
(ii) the provisions of the Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of the Banks
and the Collateral Agent, a legal, valid and enforceable security
interest in all right, title and interest in all of the Collateral
described therein, and the Security Agreement, upon the filing of Form
UCC-1 financing statements or the appropriate equivalent (which filing,
if this representation is being made more than 10 days after the
Closing Date, has been made), create a fully perfected first priority
lien on, and security interest in, all right, title and interest in all
of the Collateral described in the Security Agreement to the extent
that such security interests can be perfected by the filing of a
financing statement under the UCC or in which a filing may be made in
the United States Patent and Trademark Office or in the United States
Copyright Office, subject to no other Liens other than Permitted Liens.
6.20 Solvency. On and as of the Closing Date and after giving effect to
all Indebtedness being incurred or assumed and Liens created by the Credit
Parties in connection therewith and on and as of each Borrowing Date and after
giving effect thereto (a) the sum of the assets, at a fair valuation on a
going-concern basis, of each of the Borrower on a stand-alone basis and of
Holdings and its Subsidiaries taken as a whole will exceed its debts; (b) each
of the Borrower on a stand-alone basis and Holdings and its Subsidiaries taken
as a whole has not incurred and does not intend to incur, and does not believe
that it will incur, debts beyond its ability to pay such debts as such debts
mature; and (c) each of the Borrower on a stand alone basis and Holdings and its
Subsidiaries taken as a whole will have sufficient capital with which to conduct
its business. For purposes of this Section 6.20, "debt" means any liability on a
claim, and "claim" means (i) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii)
right to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
6.21 Representations and Warranties in the other Documents. All
representations and warranties in the Acquisition Documents, in the Borrower
Senior Note Documents and in the
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Holdings Senior Discount Note Documents were true and correct in all material
respects at the time as of which such representations and warranties were made
(or deemed made).
6.22 Capitalization.
(a) On the Closing Date, the authorized capital stock of
Holdings consists of 200,000 shares of common stock, $.01 par value per
share ("Holdings Common Stock"), of which 100,000 shares issued and
outstanding. All outstanding shares of capital stock of Holdings have
been duly and validly issued and are fully paid and non-assessable.
Holdings does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or
any agreement providing for the issuance (contingent or otherwise) of,
or any calls, commitments or claims of any character relating to, its
capital stock, except (i) for options to purchase shares of Holdings'
Common Stock which may be issued from time to time to directors,
officers and employees of Holdings or any of its Subsidiaries and (ii)
as may be set forth in any of the shareholders' agreements delivered
pursuant to Section 5.01(n).
(b) On the Closing Date, the authorized capital stock of the
Borrower consists of 1,000 shares of common stock, $.01 par value per
share, all of which are issued and outstanding and owned by Holdings.
All outstanding shares of capital stock of the Borrower have been duly
and validly issued, are fully paid and nonassessable. The Borrower does
not have outstanding any securities convertible into or exchangeable
for its capital stock or outstanding any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock.
6.23 Special Purpose Corporation. Holdings engages in no significant
business activities and has no significant assets (other than the capital stock
of the Borrower, immaterial assets used for the performance of those activities
permitted to be performed by Holdings pursuant to Section 8.13(b) and any
obligations held by it to the extent permitted by Section 8.05(vi)) or material
liabilities (other than those incurred under this Agreement, under the other
Loan Documents to which it is a party and under the Holdings Senior Discount
Note Documents).
6.24 Insurance. Schedule 6.24 sets forth a true and complete listing of
all insurance maintained by Holdings and its Subsidiaries as of the Closing
Date, and with the amounts insured (and any deductibles) set forth therein.
ARTICLE VII.
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower agrees with the Administrative Agent
and each Bank that, until all Revolving Commitments and Letters of Credit have
terminated and all
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Obligations (other than indemnities for which no request for payment has been
made) have been paid and performed in full:
7.01 Financial Statements. Holdings and the Borrower shall deliver to
the Administrative Agent and each Bank in form and detail reasonably
satisfactory to the Administrative Agent and the Required Banks:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year of Holdings, (i) a copy of the consolidated and
consolidating balance sheets of Holdings and its Subsidiaries as at the
end of such fiscal year and the related consolidated and consolidating
statements of income or operations, shareholders' equity and cash flows
for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, and (x) in the case of the
consolidated financial statements, certified by Arthur Andersen L.L.P.
or another nationally-recognized independent public accounting firm
reasonably acceptable to the Administrative Agent, together with a
report of such accounting firm stating that in the course of its
regular audit of the financial statements of Holdings and its
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge
of any Default or Event of Default which has occurred and is continuing
or, if in the opinion of such accounting firm a Default or an Event of
Default has occurred and is continuing, a statement as to the nature
thereof, and (y) in the case of the consolidating financial statements,
certified by a Responsible Officer of Holdings as being complete and
correct and fairly presenting in all material respects, in accordance
with GAAP, the financial position and the results of operations of
Holdings and its Subsidiaries, and (ii) management's discussion and
analyses of the material operational and financial developments during
such fiscal year. The accountant's opinion referred to above shall not
be qualified or limited because of a restricted or limited examination
by such accountant of any material portion of the records of Holdings
or any of its Subsidiaries;
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year of
Holdings, (i) a copy of the unaudited consolidated and consolidating
balance sheets of Holdings and its Subsidiaries as of the end of such
fiscal quarter and the related consolidated and consolidating
statements of income or operations, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day
of such fiscal quarter and for the elapsed portion of the fiscal year
ended with the last day of such fiscal quarter, and certified by a
Responsible Officer of Holdings as being complete and correct and
fairly presenting in all material respects, in accordance with GAAP
(subject to normal year-end audit adjustments and the absence of
footnote disclosure), the financial position and the results of
operations of Holdings and its Subsidiaries, and (ii) management's
discussion and analyses of the material operational and financial
developments during such fiscal quarter and for the elapsed portion of
the fiscal year ended with the last day of such fiscal quarter;
(c) as soon as available, but not later than 30 days after the
end of each fiscal month of each fiscal year of Holdings (other than
the last fiscal month of any fiscal
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quarter) a copy of the unaudited consolidated and consolidating balance
sheets of Holdings and its Subsidiaries as at the end of such fiscal
month and the related consolidated and consolidating statements of
income and cash flows for such fiscal month and for the elapsed portion
of the fiscal year ended with the last day of such fiscal month, in
each case setting forth comparative figures for the corresponding
fiscal month in the prior fiscal year and comparable budgeted figures
for such fiscal month, provided, however, monthly consolidated
financial statements only have to be delivered pursuant to this Section
7.01 (c) from and after Holdings' fiscal month ending October 31, 1998;
and
(d) as soon as available, but not later than 30 days following
the first day of each fiscal year of Holdings, a budget (including
budgeted statements of income and sources and uses of cash and balance
sheets) prepared by Holdings for each of the twelve months of such
fiscal year prepared in reasonable detail.
7.02 Certificates; Other Information. Holdings and the
Borrower shall furnish to the Administrative Agent and each Bank:
(a) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a Compliance Certificate;
(b) to the extent not previously delivered with respect to any
Adjustment Date, concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a Total Leverage
Ratio Certificate duly executed by a Responsible Officer of Holdings;
(c) promptly after Holdings' or any of its Subsidiaries'
receipt thereof, a copy of any "management letter" received from its
certified public accountants and management's response thereto;
(d) promptly after the same are sent, copies of all financial
statements and reports which Holdings sends to its shareholders
generally; and promptly after the same are filed, copies of all
financial statements and regular, periodical or special reports which
Holdings or any of its Subsidiaries may make to, or file with, the
Securities and Exchange Commission; and
(e) promptly, such additional business, financial and other
information with respect to Holdings or any of its Subsidiaries as the
Administrative Agent or any Bank may from time to time reasonably
request.
7.03 Notices. Holdings and the Borrower shall, promptly upon (and in
any event within five days after) any Responsible Officer of Holdings or the
Borrower obtaining knowledge thereof, give notice (accompanied by a reasonably
detailed explanation with respect thereto) promptly to the Administrative Agent,
each Issuing Bank and each Bank of:
(a) the occurrence of any Default or Event of Default;
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(b) any litigation, arbitration or governmental investigation
or proceeding which has been instituted or, to the knowledge of a
Responsible Officer of Holdings or the Borrower, is threatened against
Holdings or any of its Subsidiaries or to which any of their respective
properties is subject (i) which could reasonably be expected to result
in a Material Adverse Effect or (ii) relates to this Agreement, any
other Loan Document or any of the transactions contemplated hereby;
(c) one or more of the following environmental matters, unless
such environmental matters could not, individually or when aggregated
with all other such environmental matters, be reasonably expected to
have a Material Adverse Effect:
(i) any pending or, to the knowledge of a Responsible
Officer of Holdings or the Borrower, threatened Environmental
Claim against Holdings or any of its Subsidiaries or any real
property owned, leased or operated by Holdings or any of its
Subsidiaries;
(ii) any condition or occurrence on or arising from
any real property owned, leased or operated by Holdings or any
of its Subsidiaries that (a) results in noncompliance by
Holdings or any of its Subsidiaries with any applicable
Environmental Law or (b) could be expected to form the basis
of an Environmental Claim against Holdings or any of its
Subsidiaries or any such real property;
(iii) any condition or occurrence on any real
property owned, leased or operated by Holdings or any of its
Subsidiaries that could be expected to cause such real
property to be subject to any restrictions on the ownership,
occupancy, use or transferability by Holdings or any of its
Subsidiaries of such real property under any Environmental
Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any real property owned, leased or operated by
Holdings or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency; provided, that in any event Holdings shall deliver to
the Administrative Agent and each Bank all notices received by
Holdings or any of its Subsidiaries from any government or
governmental agency under, or pursuant to, CERCLA which
identify Holdings or any of its Subsidiaries as potentially
responsible parties for remediation costs or which otherwise
notify Holdings or any of its Subsidiaries of potential
liability under CERCLA; and
(d) that a Reportable Event has occurred (except to the extent that
Holdings has previously delivered to the Banks a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66,
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.67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with
respect to such Plan within the following 30 days; that an accumulated funding
deficiency, within the meaning of Section 412 of the Code or Section 302 of
ERISA, has been incurred or an application may be or has been made for a waiver
or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code or Section 303 or 304 of ERISA with respect to a Plan; that any
contribution required to be made with respect to a Plan has not been timely
made; that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan which is subject to Title IV of ERISA;
that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that Holdings, any Subsidiary of
Holdings or any ERISA Affiliate will or may incur any liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with
respect to a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that Holdings or
any Subsidiary of Holdings may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan. Holdings will deliver to each of
the Banks copies of any records, documents or other information that must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA. Holdings will also deliver to each of the Banks a complete copy of the
annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of annual reports and any records,
documents or other information required to be furnished to the PBGC, and any
material notices received by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan shall be delivered to the Banks no later than
ten (10) days after the date such annual report has been filed with the Internal
Revenue Service or such records, documents and/or information has been furnished
to the PBGC or such notice has been received by Holdings, the Subsidiary or the
ERISA Affiliate, as applicable.
7.04 Books, Records and Inspections; Annual Meetings.
(a) Holdings shall, and shall cause each of
its Subsidiaries to, keep proper books of record and accounts in which
full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Holdings shall, and shall
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative
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Agent or any Bank to visit and inspect, under guidance of officers of
Holdings or such Subsidiary, any of the properties of Holdings or such
Subsidiary and, under guidance of officers of Holdings or such
Subsidiary, to examine the books of account of Holdings or such
Subsidiary and discuss the affairs, finances and accounts of Holdings
or such Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all upon reasonable prior
notice and at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or such Bank may
reasonably request.
(b) At a date to be mutually agreed upon between the
Administrative Agent and Holdings occurring on or prior to the 120th
day after the close of each fiscal year of Holdings, Holdings shall, at
the request of the Administrative Agent, hold a meeting with all of the
Banks at which meeting shall be reviewed the financial results of
Holdings and its Subsidiaries for the previous fiscal year and the
budgets presented for the current fiscal year of Holdings.
7.05 Maintenance of Property; Insurance.
(a) Holdings shall, and shall cause each of its Subsidiaries
to, (i) keep all property necessary to the business of Holdings and its
Subsidiaries in reasonably good working order and condition, ordinary
wear and tear excepted, (ii) maintain with financially sound and
reputable insurance companies insurance on all such property in at
least such amounts and against at least such risks as is consistent and
in accordance with industry practice for companies similarly situated
owning similar properties in the same general areas in which Holdings
or any of its Subsidiaries operates, and (iii) furnish to the
Administrative Agent, on each date on which financial statements are
delivered pursuant to Section 7.01(a), full information as to the
insurance carried.
(b) Holdings shall, and shall cause each of its Subsidiaries
to, at all times keep its property insured in favor of the Collateral
Agent, and all policies or certificates of an insurance broker (or
certified copies thereof) with respect to such insurance (and any other
insurance maintained by Holdings and/or such Subsidiaries) (i) shall be
endorsed for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as loss payee and/or
additional insured), (ii) shall state that such insurance policies
shall not be cancelled without at least 30 days' prior written notice
thereof (or 10 days' prior written notice in the case of nonpayment of
premium) by the respective insurer to the Collateral Agent (or such
shorter period of time as a particular insurance company policy
generally provides) and (iii) shall be deposited with the Collateral
Agent.
(c) If Holdings or any of its Subsidiaries shall fail to
insure its property in accordance with this Section 7.05, or if
Holdings or any of its Subsidiaries shall fail to so endorse and
deposit all policies or certificates with respect thereto, the
Collateral Agent shall have the right (but shall be under no
obligation) to procure such insurance and
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Holdings and the Borrower agree to reimburse the Collateral Agent for
all reasonable costs and expenses of procuring such insurance.
7.06 Corporate Franchises. Holdings shall, and shall cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Section 7.06 shall
prevent (i) sales of assets and other transactions by Holdings or any of its
Subsidiaries in accordance with Section 8.02 or (ii) the withdrawal by Holdings
or any of its Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
7.07 Compliance with Law; Contractual Obligations. Holdings shall, and
shall cause each of its Subsidiaries to, comply with all Requirements of Law of
any Governmental Authority and with all Contractual Obligations, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.08 Payment of Taxes. Holdings shall pay and discharge, and shall
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims for sums that have become due and payable which,
if unpaid, might become a Lien not otherwise permitted under Section 8.01(i);
provided, that neither Holdings nor any of its Subsidiaries shall be required to
pay any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.
7.09 Contributions. Holdings shall contribute as a common equity
contribution to the capital of the Borrower upon its receipt thereof, any cash
proceeds received by Holdings after the Closing Date from any asset sale, any
incurrence of Indebtedness, any Recovery Event, any sale or issuance of its
equity, any cash capital contributions received by Holdings or any tax refund
received by Holdings.
7.10 End of Fiscal Years; Fiscal Quarters. Holdings shall, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.11 Additional Security; Further Assurances. (a) Holdings shall, and
shall cause each of the other Credit Parties to, grant to the Collateral Agent
security interests and mortgages in such material assets and properties of
Holdings and the other Credit Parties as are not covered by the original
Security Documents, and as may be reasonably requested from time to time by the
Administrative Agent or the Required Banks (collectively, the "Additional
Security Documents"). All such security interests and mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Administrative Agent and shall constitute valid and enforceable perfected
security interests and mortgages superior to and
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prior to the rights of all third Persons and subject to no other Liens except
for Permitted Liens. The Additional Security Documents or instruments related
thereto shall have been duly recorded or filed in such manner and in such places
as are required by law to establish, perfect, preserve and protect the Liens in
favor of the Collateral Agent required to be granted pursuant to the Additional
Security Documents and all taxes, fees and other charges payable in connection
therewith shall have been paid in full.
(b) Holdings shall, and shall cause each of the other Credit Parties
to, at the expense of Holdings and the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, Holdings
and the Borrower will cause to be delivered to the Collateral Agent such
opinions of counsel, title insurance and other related documents as may be
reasonably requested by the Administrative Agent to assure itself that this
Section 7.11 has been complied with.
(c) Holdings and the Borrower agree that each action required above by
this Section 7.11 shall be completed as soon as possible, but in no event later
than 90 days after such action is either requested to be taken by the
Administrative Agent or the Required Banks or required to be taken by Holdings
and/or the other Credit Parties pursuant to the terms of this Section 7.11;
provided that, in no event, will Holdings or any of its Subsidiaries be required
to take any action, other than using its best efforts, to obtain consents from
third parties with respect to its compliance with this Section 7.11.
7.12 Foreign Subsidiaries Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required Banks deliver
evidence, in form and substance mutually satisfactory to the Administrative
Agent and the Borrower, with respect to any Foreign Subsidiary which has not
already had all of its stock pledged pursuant to the Pledge Agreement that (i) a
pledge (x) of 66-2/3% or more of the total combined voting power of all classes
of capital stock of such Foreign Subsidiary entitled to vote, and (y) of any
promissory note issued by such Foreign Subsidiary to Holdings or any of its
Domestic Subsidiaries, (ii) the entering into by such Foreign Subsidiary of a
security agreement in substantially the form of the Security Agreement and (iii)
the entering into by such Foreign Subsidiary of a guaranty in substantially the
form of the Subsidiary Guaranty, in any such case could reasonably be expected
to cause the undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then in the
case of a failure to deliver the evidence described in clause (i) above, that
portion of such Foreign Subsidiary's outstanding capital stock or any promissory
notes so issued by such Foreign Subsidiary, in each case not theretofore pledged
pursuant to the Pledge Agreement shall be pledged to the Collateral Agent for
the benefit of the Banks pursuant to the Pledge Agreement (or another pledge
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agreement in substantially similar form, if needed), and in the case of a
failure to deliver the evidence described in clause (ii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security
agreement in substantially similar form, if needed), granting the Collateral
Agent for the benefit of the Banks a security interest in all of such Foreign
Subsidiary's assets and securing the Obligations of the Borrower under the Loan
Documents and, in the event the Subsidiary Guaranty shall have been executed by
such Foreign Subsidiary, the obligations of such Foreign Subsidiary thereunder,
and in the case of a failure to deliver the evidence described in clause (iii)
above, such Foreign Subsidiary shall execute and deliver the Subsidiary Guaranty
(or another guaranty in substantially similar form, if needed), guaranteeing the
Obligations of the Borrower under the Loan Documents, in each case to the extent
that the entering into such Security Agreement or Subsidiary Guaranty is
permitted by the laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this Section 7.12 to be in form and substance
reasonably satisfactory to the Administrative Agent.
7.13 Use of Proceeds; Margin Regulations.
(a) All proceeds of the Revolving Loans shall be used for the
working capital and general corporate purposes of the Borrower and its
Subsidiaries, including to make Permitted Acquisitions.
(b) Holdings and the Borrower shall ensure that no part of any
Revolving Loan or Letter of Credit will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock or will violate or be inconsistent with the
provisions of Regulations G, T, U and X of the Federal Reserve Board.
ARTICLE VIII.
NEGATIVE COVENANTS
Each of Holdings and the Borrower agrees with the Administrative Agent
and each Bank that, until all Revolving Commitments and Letters of Credit have
terminated and all Obligations (other than indemnities for which no request for
payment has been made) have been paid and performed in full:
8.01 Liens. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume, or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Holdings or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 8.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
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(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(ii) Liens in respect of property or assets of Holdings or any
of its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money,
such as carriers', warehousemen's, materialmen's and mechanics' liens
and other similar Liens arising in the ordinary course of business, and
(x) which do not in the aggregate materially detract from the value of
Holdings' or such Subsidiary's property or assets or materially impair
the use thereof in the operation of the business of Holdings or such
Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Closing Date which are listed,
and the property subject thereto described, in Schedule 8.01, but only
to the respective date, if any, set forth in such Schedule 8.01 for the
removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on
Schedule 8.01, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of Holdings or any of its
Subsidiaries;
(iv) Liens created pursuant to the Collateral Documents;
(v) licenses, sublicenses, leases or subleases granted to
other Persons not materially interfering with the conduct of the
business of Holdings or any of its Subsidiaries;
(vi) Liens upon assets of the Borrower or any of its
Subsidiaries subject to Capital Lease Obligations to the extent such
Capital Lease Obligations are permitted by Section 8.04(iv), provided
that (x) such Liens only serve to secure the payment of Indebtedness
arising under such Capital Lease Obligation and (y) the Lien
encumbering the asset giving rise to the Capital Lease Obligation does
not encumber any other asset of Holdings or any of its Subsidiaries;
(vii)Liens placed upon property acquired after the Closing
Date and used in the ordinary course of business of the Borrower or any
of its Subsidiaries at the time of the acquisition thereof by the
Borrower or any such Subsidiary or within 90 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such property or extensions, renewals
or replacements of any of the foregoing for the same or a lesser
amount, provided that (x) the aggregate outstanding principal amount of
all Indebtedness secured by Liens permitted by this clause (vii), when
added to the
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aggregate outstanding principal of all Indebtedness secured by Liens
permitted under clause (vi) of this Section 8.01, shall not at any time
outstanding exceed $5,000,000 and (y) in all events, the Lien
encumbering the property so acquired does not encumber any other asset
of Holdings or any of its Subsidiaries;
(viii) easements, rights-of-way, restrictions, zoning rights,
encroachments and other similar charges or encumbrances, and minor
title deficiencies, in each case not securing Indebtedness and not
materially interfering with the conduct of the business of Holdings or
any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
(x) statutory and common law landlords' liens under leases to
which Holdings or any of its Subsidiaries is a party;
(xi) (x) Liens (other than Liens imposed under ERISA) incurred
in the ordinary course of business in connection with workers
compensation claims, unemployment insurance and social security
benefits and (y) Liens securing the performance of bids, tenders,
leases and contracts in the ordinary course of business, statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money), provided
that the aggregate outstanding amount of obligations secured by Liens
permitted by this clause (xi)(y) (and the value of all cash and
property encumbered by Liens permitted pursuant to this clause (xi)(y))
shall not at any time exceed $1,000,000; and
(xii)Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition, provided that (i) any Indebtedness that is
secured by such Liens is permitted to exist under Section 8.04(ix) and
(ii) such Liens are not incurred in connection with or anticipation of
such Permitted Acquisition and do not attach to any other asset of
Holdings or any of its Subsidiaries.
In connection with the granting of Liens of the type described in clauses (vi)
and (vii) of this Section 8.01 by the Borrower or any of its Subsidiaries, the
Administrative Agent and the Collateral Agent shall be authorized to take any
actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject to
such Liens).
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of all or any part of its property
or assets, or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets
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(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person (or agree to do any
of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted (although any Capital Expenditures constituting a
Permitted Acquisition shall be governed by clause (ix) of this Section
8.02 and not by this clause (i));
(ii) each of the Borrower and its Subsidiaries may make sales
of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell
obsolete or worn-out equipment or materials;
(iv) each of the Borrower and its Subsidiaries may sell assets
(other than the capital stock of any Subsidiary Guarantor), so long as
(w) no Default or Event of Default then exists or would result
therefrom, (x) each such sale is in an arm's-length transaction and the
Borrower or the respective Subsidiary receives at least fair market
value (as determined in good faith by the Borrower or such Subsidiary,
as the case may be), (y) at least 85% of the total consideration
received by the Borrower or such Subsidiary is cash and is paid at the
time of the closing of such sale, and (z) the aggregate amount of the
proceeds received from all assets sold pursuant to this clause (iv)
shall not exceed $5,000,000 in any fiscal year of the Borrower;
(v) Investments may be made to the extent permitted by Section
8.05;
(vi) each of the Borrower and its Subsidiaries may lease (as
lessee) or license (as licensee) real or personal property (so long as
any such lease or license does not create a Capital Lease Obligation
except to the extent permitted by Section 8.04(iv));
(vii)each of the Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of
business, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof;
(viii) each of the Borrower and its Subsidiaries may grant
licenses, sublicenses, leases or subleases to other Persons in the
ordinary course of business and not materially interfering with the
conduct of the business of the Borrower or any of its Subsidiaries;
(ix) the Borrower and its Wholly-Owned Subsidiaries may
acquire all or substantially all of the assets of any Person (or all or
substantially all of the assets of a product line or division of any
Person) or 100% (or at least 51% to the extent provided below) of the
capital stock or other equity interests of any Person (any such
acquisition permitted by this clause (ix), a "Permitted Acquisition"),
so long as (i) no Default or Event of Default then exists or would
result therefrom, (ii) each of the representations and warranties
contained in Article VI shall be true and correct in all material
respects both
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before and after giving effect to such Permitted Acquisition, (iii) any
Liens or Indebtedness assumed, incurred or issued in connection with
such acquisition are otherwise permitted under Section 8.01 or 8.04, as
the case may be, (iv) at least 10 Business Days prior to the
consummation of any Permitted Acquisition, Holdings shall have
delivered to the Administrative Agent and each of the Banks (A) a
certificate of a Responsible Officer of Holdings certifying (and
showing the calculations therefor in reasonable detail) that Holdings
would have been in compliance with the financial covenants set forth in
Sections 8.07, 8.08 and 8.09 for the Measurement Period then most
recently ended prior to the date of the consummation of such Permitted
Acquisition, in each case with such financial covenants to be
determined on a pro forma basis as if such Permitted Acquisition had
been consummated on the first day of such Measurement Period (and
assuming that any Indebtedness incurred, issued or assumed in
connection therewith had been incurred, issued or assumed on the first
day of, and had remained outstanding throughout, such Measurement
Period), it being understood, however, that with respect to any
Permitted Acquisition consummated prior to June 30, 1998, Holdings
shall be in pro forma compliance with the financial ratio levels set
forth in Sections 8.07, 8.08, and 8.09 in respect of the Measurement
Period ending on June 30, 1998 and (B) in the case of any Permitted
Acquisition in which the aggregate consideration equals or exceeds
$5,000,000, projections (in reasonable detail) prepared by a
Responsible Officer of Holdings for the period from the date of the
consummation of such Permitted Acquisition to the date which is one
year thereafter calculated after giving effect to the respective
Permitted Acquisition, demonstrating that the level of financial
performance measured by the financial covenants set forth in Sections
8.07, 8.08 and 8.09 shall be better than or equal to such level as
would be required to provide that no Default or Event of Default will
exist under such financial covenants, as compliance with such financial
covenants will be required through the date which is one year from the
date of the consummation of the respective Permitted Acquisition, (v)
the only consideration paid by the Borrower or any of its Wholly-Owned
Subsidiaries in connection with any such Permitted Acquisition consists
solely of cash (including as a result of any earnout, non-compete or
deferred compensation arrangements), Indebtedness incurred, assumed or
issued to the extent permitted by Section 8.04, Holdings Common Stock
and/or Qualified Holdings Preferred Stock, (vi) no more than $5,000,000
in the aggregate in any fiscal year of the Borrower may be expended on
Permitted Acquisitions in which the Borrower or a Wholly-Owned
Subsidiary thereof acquires less than 100% of the capital stock of any
Person and then only so long as the Borrower or such Wholly-Owned
Subsidiary controls the board of directors of such Person, (vii) the
aggregate consideration paid in connection with all Permitted
Acquisitions effected in any fiscal year of the Borrower (including,
without limitation, any earnout, non-compete or deferred compensation
arrangements, the aggregate principal amount of any Indebtedness
assumed, incurred or issued in connection therewith and the fair market
value of any Holdings Common Stock or Qualified Holdings Preferred
Stock issued in connection therewith (as determined in good faith by
Holdings)) does not exceed $10,000,000, although the Borrower or a
Wholly-Owned Subsidiary thereof also may consummate the acquisition of
Legal Communications, Ltd. in fiscal year 1998 so long as (A) the
aggregate consideration paid in connection with such Permitted
Acquisition does not exceed $21,000,000 and (B) each
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of the other conditions set forth in this Section 8.02(ix) are complied
with, and (viii) immediately after giving effect to any Permitted
Acquisition, the aggregate unutilized Revolving Commitments shall be at
least $10,000,000;
(x) any Subsidiary of the Borrower may transfer any of its
assets to the Borrower and may be merged, consolidated or liquidated
with or into the Borrower so long as the Borrower is the surviving
corporation of any such merger, consolidation or liquidation; and
(xi) any Subsidiary of the Borrower may transfer any of its
assets to a Subsidiary Guarantor and may be merged, consolidated or
liquidated with or into any Subsidiary Guarantor so long as (i) in the
case of any such merger, consolidation or liquidation, the Subsidiary
Guarantor is the surviving corporation and (ii) in addition to the
requirements of preceding clause (i), in the case of any such merger,
consolidation or liquidation involving a Wholly-Owned Subsidiary of the
Borrower, the Wholly-Owned Subsidiary is the surviving corporation of
such merger, consolidation or liquidation.
To the extent the Required Banks waive the provisions of this Section 8.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 8.02 (other than to Holdings or a Subsidiary thereof), such
Collateral shall be sold free and clear of the Liens created by the Collateral
Documents, and the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate in order to effect the
foregoing.
8.03 Dividends. Holdings will not, and will not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries, except that:
(i) (x) any Subsidiary of the Borrower may pay cash Dividends
to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y)
any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends
to its shareholders generally so long as the Borrower or its respective
Subsidiary which owns the equity interest or interests in the
Subsidiary paying such Dividends receives at least its proportionate
share thereof (based upon its relative holdings of the equity interests
in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of equity
interests in such Subsidiary);
(ii) so long as there shall exist no Default or Event of
Default (both before and after giving effect to the payment thereof),
the Borrower may pay cash Dividends to Holdings to enable Holdings to
promptly repurchase outstanding shares of its capital stock (or options
to purchase such capital stock) held by officers or employees of
Holdings or any of its Subsidiaries following the death, disability,
retirement or termination of employment of such officers or employees,
provided that the aggregate amount of all such Dividends and
repurchases made pursuant to this clause (ii) shall not exceed $250,000
in any fiscal year of Holdings;
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(iii) the Borrower may pay cash Dividends to Holdings so long
as the proceeds thereof are promptly used by Holdings to pay operating
and corporate overhead costs and expenses in the ordinary course of
business (including, without limitation, outside directors and
professional fees, expenses and indemnities), provided that the
aggregate amount of cash Dividends paid pursuant to this clause (iii)
shall not exceed $250,000 in any fiscal year of Holdings; and
(iv) the Borrower may pay cash Dividends to Holdings in
connection with any amounts actually owing by it in respect of taxes,
provided that any refunds received by Holdings are promptly returned to
the Borrower; and
(v) the Borrower may pay cash Dividends to Holdings to enable
Holdings to make payments of liquidated damages to the holders of the
Holdings Senior Discount Notes in accordance with the terms thereof,
provided that the aggregate amount of Dividends paid pursuant to this
clause (v) shall not exceed $100,000.
8.04 Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Loan Documents;
(ii) existing Indebtedness (other than the Holdings Senior
Discount Notes and the Borrower Senior Notes) outstanding on the
Closing Date and listed on Schedule 8.04, without giving effect to any
subsequent extension, renewal or refinancing thereof except to the
extent set forth on Schedule 8.04, provided that the aggregate
principal amount of the Indebtedness to be extended, renewed or
refinanced does not increase from that amount outstanding at the time
of any such extension, renewal or refinancing;
(iii) Indebtedness under Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this
Section 8.04;
(iv) Indebtedness of the Borrower and its Subsidiaries
evidenced by Capital Lease Obligations, provided that in no event shall
the aggregate principal amount of Capital Lease Obligations permitted
by this clause (iv), when added to the aggregate principal amount of
Indebtedness outstanding under clause (v) of this Section 8.04, exceed
$5,000,000 at any time outstanding;
(v) Indebtedness subject to Liens permitted under Sections
8.01(vii);
(vi) intercompany Indebtedness among the Borrower and its
Subsidiaries to the extent permitted by Sections 8.05(xi) and
8.05(xii);
(vii) Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Borrower Senior Note Documents in an
aggregate principal amount not to exceed $175,000,000 (which amount may
be increased to $210,000,000 so long as no
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Default or Event of Default then exists or would result therefrom) (in
each case as reduced by any repayments of principal thereof);
(viii) Indebtedness of Holdings under the Holdings Senior
Discount Note Documents in an initial aggregate principal amount not to
exceed $35,000,000, which amount may be increased to $63,275,000 solely
through accretion (as reduced by any repayments of principal thereof);
(ix) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition or Indebtedness of the Borrower or a Subsidiary
thereof assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness, provided that (i) such Indebtedness was not
incurred in connection with or anticipation of such Permitted
Acquisition, (ii) such Indebtedness does not constitute debt for
borrowed money (other than in connection with industrial revenue or
industrial development bond financing), it being understood and agreed
that Capital Lease Obligations and purchase money Indebtedness shall
not constitute debt for borrowed money for purposes of this clause (ix)
and (iii) at the time of such Permitted Acquisition such Indebtedness
does not exceed 10% of the total value of the assets of the Subsidiary
so acquired, or the assets so acquired, as the case may be; and
(x) additional unsecured Indebtedness incurred by the Borrower
or any of its Subsidiaries in an aggregate principal amount not to
exceed $2,000,000 at any one time outstanding for all such Persons
taken together.
8.05 Advances, Investments and Loans. Holdings will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(each of the foregoing an "Investment" and, collectively, "Investments"), except
that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary trade terms of the Borrower or such
Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents, provided that during any time that Revolving
Loans are outstanding the aggregate amount of cash and Cash Equivalents
permitted to be held by the Borrower and its Subsidiaries shall not
exceed $5,000,000 for any period of five consecutive Business Days;
(iii)Holdings and its Subsidiaries may hold the Investments
held by them on the Closing Date and described on Schedule 8.05,
provided that any additional
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Investments made with respect thereto shall be permitted only if
independently justified under the other provisions of this Section
8.05;
(iv) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in good
faith settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
officers and employees so long as the aggregate principal amount
thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$500,000;
(vi) Holdings may acquire and hold obligations of one or more
officers or employees of Holdings or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
capital stock of Holdings so long as no cash is paid by Holdings or any
of its Subsidiaries to such officers or employees in connection with
the acquisition of any such obligations;
(vii) the Borrower and its Subsidiaries may acquire and hold
promissory notes issued by the purchaser of assets in connection with a
sale of such assets to the extent permitted by Section 8.02;
(viii) the Borrower and its Wholly-Owned Subsidiaries may make
Permitted Acquisitions to the extent permitted by Section 8.02(ix);
(ix) the Borrower and its Subsidiaries may enter into Interest
Rate Protection Agreements to the extent permitted by Section
8.04(iii);
(x) Holdings may make cash contributions to the capital of the
Borrower and the Borrower and the Subsidiary Guarantors may make cash
contributions to the capital of their respective Subsidiaries which are
Subsidiary Guarantors;
(xi) the Borrower and the Subsidiary Guarantors may make
intercompany loans and advances between or among one another
(collectively, "Intercompany Loans"), so long as (x) each Intercompany
Loan shall be evidenced by an Intercompany Note that is pledged to the
Collateral Agent pursuant to the Pledge Agreement and (y) each
Intercompany Loan made to the Borrower shall contain the subordination
provisions set forth in Exhibit M;
(xii) the Borrower and the Subsidiary Guarantors may make
additional loans and cash contributions to their respective
Subsidiaries which are not Subsidiary Guarantors in an aggregate amount
not to exceed $500,000 at any time outstanding (determined without
regard to any write-downs or write-offs thereof) so long as any such
loans that are made by a Credit Party are evidenced by an Intercompany
Note that is pledged pursuant to, and to the extent required by, the
Pledge Agreement; and
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(xiii) the Borrower and its Subsidiaries may make additional
Investments in an aggregate amount not to exceed $1,000,000 in any
fiscal year of the Borrower (determined without regard to any
write-downs or write-offs thereof).
8.06 Transactions with Affiliates. Holdings will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Holdings or such Subsidiary as would reasonably be obtained by Holdings or such
Subsidiary at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that the following in any event shall be
permitted:
(i) Dividends may be paid to the extent provided in Section
8.03;
(ii) loans may be made and other transactions may be entered
into by Holdings and its Subsidiaries to the extent permitted by
Sections 8.02, 8.04 and 8.05;
(iii) customary fees may be paid to non-officer directors of
Holdings and its Subsidiaries;
(iv) so long as no Default or Event of Default shall exist,
the Borrower may pay monitoring or management fees to WP Management or
an Affiliate thereof quarterly in arrears in an aggregate amount not to
exceed $250,000 per quarter (whether or not actually paid at the end of
such quarter or deferred and paid in any subsequent quarter, provided,
however, that in no event shall more than $500,000 be paid in any
quarter), plus the reasonable out-of-pocket expenses incurred by WP
Management or an Affiliate thereof in performing management services
for the Borrower (it being understood and agreed that the reimbursement
of such reasonable out-of-pocket expenses may be made whether or not
any Default or Event of Default exists); and
(v) so long as no Default or Event of Default shall exist, the
Borrower and its Subsidiaries may make payments to Wasserstein and its
Affiliates in respect of fees for any financial advisory, financing,
underwriting or placement services or in respect of investment banking
activities, including, without limitation, in connection with Permitted
Acquisitions and Asset Sales, so long as such payments are reasonable
and customary and are approved by a majority of the Board of Directors
of the Borrower in good faith.
8.07 Consolidated Interest Coverage Ratio. Holdings and the Borrower
will not permit the Consolidated Interest Coverage Ratio for any Measurement
Period ending on the last day of a fiscal quarter set forth below to be less
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1998 1.50:1.00
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Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1998 1.50:1.00
December 31, 1998 1.50:1.00
March 31, 1999 1.50:1.00
June 30, 1999 1.50:1.00
September 30, 1999 1.50:1.00
December 31, 1999 1.75:1.00
March 31, 2000 1.75:1.00
June 30, 2000 1.75:1.00
September 30, 2000 1.75:1.00
December 31, 2000 2.00:1.00
March 31, 2001 2.00:1.00
June 30, 2001 2.00:1.00
September 30, 2001 2.00:1.00
December 31, 2001
and the last day of each
fiscal quarter thereafter 2.25:1.00
8.08 Consolidated Fixed Charge Coverage Ratio. Holdings and the
Borrower will not permit the Consolidated Fixed Charge Coverage Ratio for any
Measurement Period ending on the last day of a fiscal quarter set forth below to
be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1998 1.00:1.00
September 30, 1998 1.00:1.00
December 31, 1998 1.00:1.00
March 31, 1999 1.00:1.00
June 30, 1999 1.00:1.00
September 30, 1999 1.00:1.00
December 31, 1999 1.00:1.00
March 30, 2000 1.00:1.00
June 30, 2000 1.00:1.00
September 30, 2000 1.00:1.00
December 31, 2000
and the last day of
each fiscal quarter 1.15:1.00
8.09 Maximum Total Leverage Ratio. Holdings and the Borrower will not
permit the Consolidated Total Leverage Ratio at any time during a period set
forth below to be greater than the ratio set forth opposite such period below:
Period Ratio
------ -----
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Period Ratio
------ -----
June 30, 1998 through and
including December 30, 1998 7.75:1.00
December 31, 1998 through and
including December 30, 1999 7.50:1.00
December 31, 1999 through and
including December 30, 2000 6.75:1.00
December 31, 2000 through and
including December 30, 2001 6.00:1.00
December 31, 2001 through and
including December 30, 2002 5.50:1.00
Thereafter 5.00:1.00
8.10 Limitation on Voluntary Payments and Modification of Certain
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; etc. Holdings will not, and will not permit any of its
Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities
before due for the purpose of paying when due) any Borrower Senior Note
or any Holdings Senior Discount Note; provided, however, from and after
April 1, 1999, the Borrower may voluntarily redeem or repurchase
outstanding Borrower Senior Notes pursuant to this clause (i) so long
as (x) no Default or Event of Default then exists or would result
therefrom, (g) no Revolving Loans are outstanding at the time of such
redemption or repurchase and immediately after giving effect thereto
and (z) no more than $10,000,000 in the aggregate is expended in
respect of such redemptions or repurchases (exclusive of amounts
representing accrued and unpaid interest).
(ii) make (or give any notice in respect of) any prepayment or
redemption of any Borrower Senior Note or any Holdings Senior Discount
Note as a result of any asset sale, change of control or similar event
(including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due
for the purpose of paying when due any Borrower Senior Note or any
Holdings Senior Discount Note);
(iii) amend or modify, or permit the amendment or modification
of, any provision of any Borrower Senior Note Document or any Holdings
Senior Discount Note Document, other than an amendment, in form and
substance reasonably satisfactory to Bank of America (or any successor
Administrative Agent), permitting an increase in the principal amount
of the Borrower Senior Notes from $175,000,000 to up to $210,000,000;
or
(iv) amend, modify or change its certificate of incorporation
(including, without limitation, by the filing or modification of any
certificate of designation) or by-
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laws (or the equivalent organizational documents) or any agreement
entered into by it with respect to its capital stock, or enter into any
new agreement with respect to its capital stock, unless such amendment,
modification, change or other action contemplated by this clause (iv)
could not reasonably be adverse to the interests of the Banks.
8.11 Limitation on Certain Restrictions on Subsidiaries. Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Subsidiary to (a) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits owned by Holdings or any Subsidiary of Holdings, or
pay any Indebtedness owed to Holdings or any Subsidiary of Holdings, (b) make
loans or advances to Holdings or any Subsidiary of Holdings or (c) transfer any
of its properties or assets to Holdings or any Subsidiary of Holdings, except
for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Loan Documents, (iii) the
Borrower Senior Note Documents, (iv) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of Holdings or any
Subsidiary of Holdings, (v) customary provisions restricting assignment of any
licensing agreement entered into by Holdings or any Subsidiary of Holdings in
the ordinary course of business, (vi) restrictions on the transfer of any asset
subject to a Lien permitted by Sections 8.01(iii), (vi), (vii) and (xii) so long
as such restrictions are not applicable to any property or any Subsidiary of
Holdings other than the specific property subject to such Lien, and (vii)
restrictions on the transfer of any asset pending the close of the sale of such
asset.
8.12 Limitation on Issuance of Capital Stock.
(a) Holdings will not, and will not permit any of its
Subsidiaries to, issue (i) any preferred stock other than Qualified
Holdings Preferred Stock issued by Holdings or (ii) any redeemable
common stock (other than common stock that is redeemable at the sole
option of Holdings or such Subsidiary).
(b) Holdings will not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into,
capital stock, except (i) for transfers and replacements of then
outstanding shares of capital stock, (ii) for stock splits, stock
dividends and issuances which do not decrease the percentage ownership
of Holdings or any of its Subsidiaries in any class of the capital
stock of such Subsidiary, (iii) to qualify directors to the extent
required by applicable law or (iv) for issuances by newly created or
acquired Subsidiaries in accordance with the terms of this Agreement.
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8.13 Business.
(a) Holdings and its Subsidiaries will not engage in any
business other than the businesses engaged in by the Borrower and its
Subsidiaries as of the Closing Date and reasonable extensions thereof
and activities incidental thereto.
(b) Notwithstanding the foregoing or anything in this
Agreement, Holdings will not engage in any business and will not own
any significant assets or have any material liabilities other than its
ownership of the capital stock of the Borrower and having those
liabilities which it is responsible for under this Agreement, the other
Loan Documents to which it is a party and the Holdings Senior Discount
Note Documents, provided that Holdings may engage in those activities
that are incidental to (x) the maintenance of its corporate existence
in compliance with applicable law, (y) legal, tax and accounting
matters in connection with any of the foregoing activities and (z) the
entering into, and performing its obligations under, this Agreement and
the other Transaction Documents to which it is a party.
8.14 Limitation on Creation of Subsidiaries. Notwithstanding anything
to the contrary contained in this Agreement, Holdings will not, and will not
permit any of its Subsidiaries to, establish, create or acquire after the
Closing Date any Subsidiary, provided that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish, create and, to the extent
permitted by this Agreement, acquire Subsidiaries so long as (i) the capital
stock or other equity interests of each such new Subsidiary is pledged pursuant
to, and to the extent required by, the Pledge Agreement and the certificates (if
any) representing such stock or other equity interests, together with stock or
other powers duly executed in blank, are delivered to the Collateral Agent for
the benefit of the Banks, and (ii) each such new Domestic Subsidiary, and to the
extent required by Section 7.12, each such new Foreign Subsidiary, executes a
Guarantor Supplement. In addition, each new Domestic Subsidiary, and to the
extent required by Section 7.12, each such new Foreign Subsidiary, shall execute
and deliver, or cause to be executed and delivered, all other relevant
documentation of the type described in Article V as such new Subsidiary would
have had to deliver if such new Subsidiary were a Credit Party on the Closing
Date.
ARTICLE IX
EVENT OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Revolving
Loan or any amount of any Letter of Credit Obligation, or (ii) within
three Business Days after the same shall become due, any interest, fee
or any other amount payable hereunder or pursuant to any other Loan
Document; or
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(b) Representation or Warranty. Any representation or warranty
by Holdings or any of its Subsidiaries made or deemed made herein or in
any other Loan Document, or which is contained in any certificate,
document or financial or other statement furnished by Holdings or any
of its Subsidiaries at any time under this Agreement or under any other
Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. Holdings or any of its Subsidiaries
fails to perform or observe any term, covenant or agreement contained
in Section 7.03(a), 7.10, 7.13 or Article VIII; or
(d) Other Defaults. Holdings or any of its Subsidiaries fails
to perform or observe any other term or covenant contained in this
Agreement or in any other Loan Document, and such default shall
continue unremedied for a period of 30 days after the date upon which
written notice thereof is given to the Borrower by the Administrative
Agent or any Bank; or
(e) Cross-Default. Holdings or any of its Subsidiaries (i)
fails to make any payment in respect of any Indebtedness having an
aggregate principal amount of $5,000,000 or more when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on
the date of such failure; or (ii) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on
the date of such failure if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and
payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. Holdings or any of its
Subsidiaries (i) generally fails to pay its debts as they become due;
(ii) commences any Insolvency Proceeding with respect to itself; or
(iii) takes any action to effectuate or authorize any of the foregoing;
or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against Holdings or any of its
Subsidiaries, or any writ, judgment, warrant of attachment, execution
or similar process, is issued or levied against a substantial part of
Holdings' or any of its Subsidiaries' properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement,
filing or levy; (ii) Holdings or any of its Subsidiaries admits the
material allegations of a petition against it in any Proceeding, or an
order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency
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Proceeding; or (iii) Holdings or any of its Subsidiaries acquiesces in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under
Section 412 of the Code or Section 302 of ERISA or a waiver of such
standard or extension of any amortization period is sought or granted
under Section 412 of the Code or Section 303 or 304 of ERISA, a
Reportable Event shall have occurred, a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV
of ERISA shall be subject to the advance reporting requirement of PBGC
Regulation Section 4043.61 (without regard to subparagraph (b)(1)
thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected
to occur with respect to such Plan within the following 30 days, any
Plan which is subject to Title IV of ERISA shall have had or is likely
to have a trustee appointed to administer such Plan, any Plan which is
subject to Title IV of ERISA is, shall have been or is likely to be
terminated or to be the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution
required to be made with respect to a Plan has not been timely made,
Holdings or any Subsidiary of Holdings or any ERISA Affiliate has
incurred or is likely to incur any liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code
or on account of a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or Holdings or any Subsidiary of Holdings has incurred or is
likely to incur liabilities pursuant to one or more employee welfare
benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans; (b) there shall result from
any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a
liability; and (c) such lien, security interest or liability,
individually, and/or in the aggregate, in the opinion of the Required
Banks, has had, or could reasonably be expected to have, a Material
Adverse Effect; or
(i) Judgments. One or more judgments or decrees shall be
entered against Holdings or any of its Subsidiaries involving a
liability (not paid or not covered by a reputable and solvent insurance
company) of $5,000,000 or more for all such judgments and decrees and
all such judgments or decrees shall not have been vacated, discharged
or stayed or bonded pending appeal within 30 days from the entry
thereof; or
(j) Change of Control. Any Change of Control shall occur; or
(k) Collateral; Guaranties.
(i) Except in each case to the extent resulting from
the failure of the Collateral Agent to retain possession of
the applicable Pledged Securities, any
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Collateral Document (other than the Guaranties) shall cease to
be in full force and effect, or shall cease to give the
Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby in favor of the Collateral
Agent; or
(ii) any Guaranty or any provision thereof shall
cease to be in full force and effect, or any Guarantor or any
Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under its Guaranty.
9.02 Remedies. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Banks,
(a) declare the Revolving Commitment of each Bank and any
obligation of each Issuing Bank to issue Letters of Credit to be
terminated, whereupon all such Revolving Commitments and obligation
shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding
Revolving Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to
be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower and Holdings;
(c) demand that the Borrower Cash Collateralize Letter of
Credit Obligations to the extent of outstanding and wholly or partially
undrawn Letters of Credit, whereupon the Borrower shall so Cash
Collateralize;
(d) exercise on behalf of itself, the Issuing Banks and the
Banks all rights and remedies available to it and the Banks under the
Loan Documents or applicable law; and
(e) apply any cash collateral as provided in Section 3.07 to
the payment of outstanding Obligations;
provided, however, that upon the occurrence of any event specified above in
paragraph (f) or (g) of Section 9.01 with respect to Holdings, the Borrower or
any Significant Subsidiary of the Borrower, the obligation of each Bank to make
Revolving Loans and any obligation of each Issuing Bank to issue Letters of
Credit shall automatically terminate, and all reimbursement obligations under
Letters of Credit and the unpaid principal amount of all outstanding Revolving
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act or notice by the Administrative Agent, any
Issuing Bank or any Bank, which are hereby expressly waived by the Borrower and
Holdings.
9.03 Rights Not Exclusive. The rights provided for in this Agreement
and in the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now existing or hereafter
arising.
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ARTICLE X
THE GUARANTY
10.01 Guaranty from Holdings.
(a) In order to induce the Banks to make Revolving Loans to
the Borrower under this Agreement and to induce the Issuing Banks to
issue Letters of Credit and to induce the Guaranteed Creditors to enter
into the Interest Rate Protection Agreements and Other Hedging
Agreements, Holdings hereby unconditionally and irrevocably guarantees
the prompt payment and performance in full by the Borrower when due
(whether at stated maturity, by acceleration or otherwise) of all
Guaranteed Obligations of the Borrower. The obligations of Holdings
hereunder are those of a primary obligor, and not merely a surety, and
are independent of the Guaranteed Obligations of the Borrower. A
separate action or actions may be brought against Holdings whether or
not an action is brought against the Borrower, any other guarantor or
other obligor in respect of the Guaranteed Obligations or whether the
Borrower, any other guarantor or any other obligor in respect of the
Guaranteed Obligations is joined in any such action or actions.
Holdings waives, to the fullest extent permitted by applicable law, the
benefit of any statute of limitation affecting its liability hereunder
and agrees that its liability hereunder shall not be subject to any
right of set-off, counterclaim or recoupment (each of which rights is
hereby waived to the fullest extent permitted by applicable law).
(b) Holdings guarantees that the obligations guaranteed by it
hereby will be paid and performed strictly in accordance with the terms
of this Agreement, the other Loan Documents and the applicable Interest
Rate Protection Agreements and Other Hedging Agreements regardless of
any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Administrative Agent, the Collateral Agent, the Issuing Banks, the
Banks or the other Guaranteed Creditors with respect thereto. This
guaranty is a guaranty of payment not collection. The liability of
Holdings under this guaranty shall be absolute and unconditional
irrespective of, and Holdings hereby irrevocably waives (to the fullest
extent permitted by applicable law) any defenses it may now or
hereafter have in any way relating to, any and all of the following:
(i) any lack of genuineness, validity, legality or
enforceability against the Borrower or any other guarantor of
this Agreement, any other Loan Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any
document, agreement or instrument relating hereto or any
assignment or transfer of this Agreement, any other Loan
Document or any Interest Rate Protection Agreement or Other
Hedging Agreement or any defense that the Borrower may have
with respect to its liability hereunder or thereunder;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any waiver, indulgence, compromise,
renewal, extension, amendment, modification of, or addition,
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consent, supplement to, or consent to departure from, or any
other action or inaction under or in respect of, this
Agreement, any other Loan Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any
document, instrument or agreement relating to the Guaranteed
Obligations or any other instrument or agreement referred to
herein or any assignment or transfer of this Agreement or any
Interest Rate Protection Agreement or Other Hedging Agreement;
(iii) any release or partial release of any other
guarantor or other obligor in respect of the Guaranteed
Obligations;
(iv) any exchange, impairment, release or
non-perfection of any collateral for all or any of the
Guaranteed Obligations, or any release, or amendment or waiver
of, or consent to departure from, any guaranty or security,
for any or all of the Guaranteed Obligations;
(v) any furnishing of any additional security for any
of the Guaranteed Obligations;
(vi) the liquidation, bankruptcy, insolvency or
reorganization of the Borrower, any other guarantor or other
obligor in respect of the Guaranteed Obligations or any action
taken with respect to this guaranty or otherwise by any
trustee or receiver, or by any court, in any such proceeding;
(vii) any modification or termination of any
intercreditor or subordination agreement pursuant to which the
claims of other creditors of the Borrower or any guarantor are
subordinated to those of the Banks, the Issuing Banks, the
Administrative Agent, the Collateral Agent or the other
Guaranteed Creditors; or
(viii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, the Borrower or Holdings.
(c) This guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance
of the Guaranteed Obligations, or any part thereof, is, upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise
pursuant to applicable law, rescinded or reduced in amount or must
otherwise be restored or returned by any of the Administrative Agent,
any Issuing Bank, any Bank, the Collateral Agent or the other
Guaranteed Creditors, all as though such payment or performance had not
been made.
(d) If an event permitting the acceleration of any of the
Guaranteed Obligations shall at any time have occurred and be
continuing and such acceleration shall at such time be prevented by
reason of the pendency against the Borrower of a case or proceeding
under any bankruptcy or insolvency law, Holdings agrees that, for
purposes of this guaranty and its obligations hereunder, the Guaranteed
Obligations shall be deemed to have been accelerated and Holdings shall
forthwith pay such Guaranteed Obligations
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(including interest which but for the filing of a petition in
bankruptcy with respect to the Borrower would accrue on such Guaranteed
Obligations, whether or not interest is an allowed claim under
applicable law), and the other obligations hereunder, forthwith upon
demand.
(e) Holdings hereby waives (i) promptness, diligence,
presentment, notice of nonperformance, protest or dishonor, notice of
acceptance and any and all other notices with respect to any of the
Guaranteed Obligations or this Agreement, any other Loan Document or
any Interest Rate Protection Agreement or Other Hedging Agreement, and
(ii) to the extent permitted by applicable law, any right to require
that any Administrative Agent, the Collateral Agent, any Issuing Bank,
any Bank or any other Guaranteed Creditor protect, secure, perfect or
insure any Lien in or any Lien on any property subject thereto or
exhaust any right or pursue any remedy or take any action against the
Borrower, any other guarantor or any other Person or any collateral or
security or to any balance of any deposit accounts or credit on the
books of the Administrative Agent, the Collateral Agent, any Issuing
Bank, any Bank or any other Guaranteed Creditor in favor of the
Borrower.
(f) Holdings expressly waives until the Guaranteed Obligations
are irrevocably paid in full in cash any and all rights of subrogation,
reimbursement, contribution and indemnity (contractual, statutory or
otherwise), including any claim or right of subrogation under the
Bankruptcy Code or any successor statute, arising from the existence or
performance of this guaranty and Holdings irrevocably waives until the
Guaranteed Obligations are irrevocably paid in full in cash any right
to enforce any remedy which the Administrative Agent, the Collateral
Agent, the Issuing Banks, the Banks or the other Guaranteed Creditors
now have or may hereafter have against the Borrower, and waives, to the
fullest extent permitted by law, until the Guaranteed Obligations are
irrevocably paid in full in cash any benefit of, and any right to
participate in, any security now or hereafter held by the
Administrative Agent, the Collateral Agent, any Issuing Bank, any Bank
or any other Guaranteed Creditor.
(g) If, in the exercise of any of its rights and remedies, the
Administrative Agent, the Collateral Agent, any Issuing Bank, any Bank
or any other Guaranteed Creditor shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against
the Borrower or any other Person, whether because of any applicable
laws pertaining to "election of remedies" or the like, Holdings hereby
consents to such action and waives any claim based upon such action (to
the extent permitted by applicable law). Any election of remedies which
results in the denial or impairment of the right of the Administrative
Agent, the Collateral Agent, any Issuing Bank, any Bank or any other
Guaranteed Creditor to seek a deficiency judgment against any Credit
Party shall not impair Holdings' obligation to pay the full amount of
the Guaranteed Obligations.
(h) This guaranty is a continuing guaranty and shall (i)
remain in full force and effect until payment in full of the Guaranteed
Obligations and all other amounts
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payable under this guaranty and the termination of the Commitments;
(ii) be binding upon Holdings, its successors and assigns; and (iii)
inure, together with the rights and remedies hereunder, to the benefit
of the Guaranteed Creditors and their respective successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Guaranteed Creditor may, subject to the
terms of this Agreement or the applicable Interest Rate Protection
Agreement or Other Hedging Agreement, assign or otherwise transfer its
rights and obligations under this Agreement to any other Person, and
such other Person shall thereupon become vested with all the benefits
in respect hereof granted to such Bank pursuant to this guaranty or
otherwise, all as provided in, and to the extent set forth in, this
Agreement.
(i) Any obligations of the Borrower to Holdings, now or
hereafter existing, are hereby subordinated to the Guaranteed
Obligations. Such obligations of the Borrower to Holdings, if the
Administrative Agent or the Required Banks so request, shall be
enforced and amounts recovered shall be received by Holdings as trustee
for the Guaranteed Creditors and the proceeds thereof shall be paid
over to the Banks on account of the Guaranteed Obligations, but without
reducing or affecting in any manner the liability of Holdings under the
provisions of this guaranty.
(j) Upon failure of the Borrower to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity,
by acceleration or otherwise, Holdings hereby agrees immediately on
demand by any of the Guaranteed Creditors to pay or cause to be paid in
accordance with the terms hereof an amount equal to the full unpaid
amount of the Guaranteed Obligations then due in Dollars.
(k) All payments by Holdings hereunder shall be made free and
clear of, and without deduction or withholding for or on account of,
any Taxes, unless such deduction or withholding is required by law. If
Holdings shall be required by law to make any such deduction or
withholding, then Holdings shall pay such additional amounts as may be
necessary in order that the net amount received by the applicable Bank,
the Issuing Bank or the Administrative Agent, as the case may be, after
all deductions and withholdings, shall be equal to the full amount that
such Person would have received, after all deductions and withholdings,
had the Borrower discharged its obligations (including its tax gross-up
obligations) pursuant to Section 4.01.
Any amounts deducted or withheld by Holdings for or on account
of Taxes shall be paid over to the government or taxing authority
imposing such Taxes on a timely basis, and Holdings shall provide the
applicable Bank, the Issuing Bank or the Administrative Agent, as the
case may be, as soon as practicable with such tax receipts or other
official documentation (and such other certificates, receipts and other
documents as may reasonably be requested by such Person) with respect
to the payment of such Taxes as may be available.
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ARTICLE XI
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
THE ISSUING BANK, THE SYNDICATION AGENT AND THE ARRANGERS
11.01 Appointment and Authorization.
(a) Each of the Banks and each of the Issuing Banks hereby
irrevocably appoints, designates and authorizes Bank of America as
Administrative Agent and as Collateral Agent (for purposes of this
Article XI, the term "Agent" shall mean Bank of America in its capacity
as Administrative Agent and as Collateral Agent) to take such action on
its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank or any Issuing Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
(b) Each Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Article XI with respect to
any acts taken or omissions suffered by such Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued by it and
the Letter of Credit Applications pertaining to the Letters of Credit
as fully as if the term "Agent", as used in this Article XI, included
such Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to such Issuing
Bank.
11.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
11.03 Liability of Agent. None of the Agent, its Affiliates or any of
their officers, directors, employees, agents or attorneys-in-fact (collectively,
the "Agent-Related Persons") shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document (except for their own gross negligence or willful
misconduct), or (b) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by Holdings, the Borrower or
any Subsidiary or Affiliate thereof, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan
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Document, or for any failure of the Borrower, Holdings or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower, Holdings or any of
their respective Subsidiaries or Affiliates.
11.04 Reliance by Agent.
(a) The Banks agree that the Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Borrower, Holdings or any
Subsidiary Guarantor), independent accountants and other experts
selected by the Agent. The Banks agree that the Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Banks or, as required by Section
12.01, all the Banks as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request
or consent of the Required Banks or, as required by Section 12.01 all
the Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01 as it relates to the occurrence of the
Closing Date, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter either sent by the Agent to such
Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of the Agent responsible
for the transactions contemplated by the Loan Documents shall have
received notice from such Bank prior to the Closing Date specifying in
reasonable detail its objection thereto and either such objection shall
not have been withdrawn by notice to the Agent to that effect or such
Bank shall not have made available to the Agent such Bank's ratable
portion of any Borrowing to be made on such date.
11.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks or the Issuing Bank, unless
the Agent shall have received written notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating
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that such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Banks and the Issuing
Banks. The Agent shall take such action with respect to such Default or Event of
Default as shall be requested by the Required Banks in accordance with Article
IX; provided, however, that unless and until the Agent shall have received any
such request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
11.06 Credit Decision. Each Bank expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it and that
no act by the Agent hereinafter taken, including any review of the affairs of
Holdings and its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of Holdings and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Borrower hereunder. Each Bank also represents
that it will, independently and without reliance upon the Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Holdings and its Subsidiaries. Except for notices, reports
and other documents expressly herein required to be furnished to the Banks by
the Agent, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Borrower, Holdings and their Subsidiaries which may come into the possession of
any of the Agent-Related Persons.
11.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify, upon demand, each of the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), ratably
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind whatsoever which may at any time (including at any time following the
expiration of the Letters of Credit and the repayment of the Loans and the
termination or resignation of the Agent) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement,
any other Loan Document or any document contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by any such Person under or in connection with any of the foregoing;
provided, however, that no Bank shall be liable for the payment to any of the
Agent-Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank shall reimburse the Agent upon
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demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by the Agent in connection with the administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrower. Without limiting
the generality of the foregoing, if the Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not delivered, was not
properly executed, or because such Bank failed to notify the Agent of a change
in circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify the Agent
fully for all amounts paid as a result thereof, directly or indirectly, by the
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the Agent under this
Section 11.07, together with all costs and expenses (including Attorney Costs).
The obligation of the Banks in this Section shall survive the payment of all
Obligations hereunder.
11.08 Agent in Individual Capacity. Bank of America and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory or other business with Holdings and its Subsidiaries
and Affiliates as though Bank of America were not the Agent or an Issuing Bank
hereunder and without notice to or consent of the Banks. With respect to its
Revolving Loans and participation in Letters of Credit, Bank of America shall
have the same rights and powers under this Agreement and the other Loan
Documents as any other Bank and may exercise the same as though it were not the
Agent or an Issuing Bank, and the terms "Bank" and "Banks" shall include Bank of
America in its individual capacity.
11.09 Successor Agent. The Agent may resign as Agent upon 30 days'
notice to the Banks and the Borrower. If the Agent shall resign as Agent under
this Agreement, the Required Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be subject to the
approval of the Borrower if no Event of Default has occurred and is continuing,
such approval not to be unreasonably withheld or delayed. If no successor agent
is appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Banks and subject to the approval
of the Borrower if no Event of Default has occurred and is continuing, such
approval not to be unreasonably withheld or delayed, a successor agent from
among the Banks or any Bank Affiliate. Any successor Agent appointed under this
Section 11.09 shall be a commercial bank organized under the laws of the United
States or any State thereof, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI and Sections 12.04 and 12.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a
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retiring Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Banks
appoint a successor agent as provided for above.
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11.10 The Arrangers and the Syndication Agent. Each Arranger
and the Syndication Agent, in such capacity, shall have no duties or
responsibilities, and shall incur no obligations or liabilities, under this
Agreement. Each Bank acknowledges that it has not relied, and will not rely, on
any Arranger or the Syndication Agent in deciding to enter into this Agreement.
ARTICLET XII
MISCELLANEOUS
12.01 Amendments and Waivers.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document and no consent with respect to any departure by the
Borrower, Holdings or any Subsidiary Guarantor therefrom, shall be effective
unless the same shall be in writing and signed by the respective Credit Parties
party thereto and the Required Banks and acknowledged by the Administrative
Agent, and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment or consent shall, unless in writing and
signed by all the Banks affected thereby and acknowledged by the Administrative
Agent, do any of the following:
(i) increase or extend any Revolving Commitment of
such Bank (or reinstate any Revolving Commitment terminated
pursuant to Section 9.02(a)) (except as provided in Section
12.07);
(ii) postpone or delay any date for any payment of
interest or fees due to the Banks (or any of them) hereunder
or under any other Loan Document or extend the Revolving
Termination Date;
(iii) reduce the principal of, or the rate of
interest specified herein on, any Revolving Loan or Letter of
Credit Borrowing (other than with respect to post-default
rates), or of any fees or other amounts payable hereunder or
under any other Loan Document or reduce the Applicable Margin
provided for herein (it being understood that any amendment or
modification to the financial definitions in this Agreement
shall not constitute a reduction in the rate of interest or
fees for the purposes of this clause (iii));
(iv) reduce the percentage of the Revolving
Commitments or of the aggregate unpaid principal amount of the
Revolving Loans which shall be required for the Banks or any
of them to take any action hereunder;
(v) amend this Section 12.01, to the extent that any
such amendment would alter any of the voting requirements set
forth in the other provisions of this Section 12.01, or amend
the definition of the term "Required Banks" or any
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provision of this Agreement expressly requiring the consent of
all the Banks in order to take or refrain from taking any
action; or
(vi) release the guaranty of Holdings under its
guaranty pursuant to Article X or discharge any Subsidiary
Guarantor from its obligations under any Subsidiary Guaranty,
or release all or substantially all of the Collateral except,
in all such cases, in accordance with the express provisions
thereof;
and, provided further, that (A) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Banks in addition to the
Required Banks or all the Banks, as the case may be, affect the rights
or duties of the Issuing Banks under this Agreement or any Letter of
Credit Related Document, and (B) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to
the Required Banks or all the Banks, as the case may be, affect the
rights or duties of the Administrative Agent or under this Agreement or
any other Loan Document.
(b) If, in connection with any proposed change, waiver,
discharge or any termination to any of the provisions of this Agreement
as contemplated by clauses (ii) through (vi), inclusive, of the first
proviso to Section 12.01(a), the consent of the Required Banks is
obtained but the consent of one or more other Banks whose consent is
required is not obtained, then the Borrower shall have the right, so
long as all non-consenting Banks whose individual consent is required
are treated the same, to replace each such non-consenting Bank or Banks
with one or more Replacement Banks pursuant to Section 4.08(b) so long
as at such time of such replacement, each such Replacement Bank
consents to the proposed change, waiver, discharge or termination.
12.02 Notices.
(a) All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context
expressly otherwise provides, facsimile transmission) and mailed,
transmitted by facsimile or delivered, (A) if to the Borrower,
Holdings, the Administrative Agent or any Issuing Bank, to the address
or facsimile number specified for notices on the applicable signature
page hereof; (B) if to any Bank, to the notice address of such Bank set
forth on Schedule 1.01(a); or (C) as directed to the Borrower or the
Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties, and as directed to
each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent.
(b) All such notices, requests and communications shall be
effective when delivered or transmitted by facsimile machine,
respectively, provided that any matter transmitted by the Borrower by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on the applicable signature page
hereof or on Schedule 1.01(a), and (ii) shall be followed promptly by a
hard copy original thereof; except that notices to the Administrative
Agent shall not be effective until
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actually received by the Administrative Agent, and notices pursuant to
Article III to each Issuing Bank shall not be effective until actually
received by such Issuing Bank.
(c) The Borrower acknowledges and agrees that any agreement of
the Administrative Agent, the Issuing Banks and the Banks in Articles
II and III herein to receive certain notices by telephone and facsimile
is solely for the convenience and at the request of the Borrower. The
Administrative Agent, the Issuing Banks and the Banks shall be entitled
to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative
Agent, the Issuing Banks and the Banks shall not have any liability to
such Borrower or any other Person on account of any action taken or not
taken by the Administrative Agent, the Issuing Banks or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Loans and drawings under Letters of Credit
shall not be affected in any way or to any extent by any failure by the
Administrative Agent, the Issuing Banks and the Banks to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent, the Issuing Banks and the Banks of
a confirmation which is at variance with the terms understood by the
Administrative Agent, the Issuing Banks or the Banks to be contained in
the telephonic or facsimile notice.
12.03 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent, any Issuing
Bank or any Bank, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
12.04 Costs and Expenses. The Borrower shall, whether or not
the transactions contemplated hereby shall be consummated:
(a) pay or reimburse on demand for all reasonable costs and
expenses incurred by the Administrative Agent, the Syndication Agent
and each Arranger in connection with the development, preparation,
delivery, administration, syndication of the Commitments under and
execution of, and any amendment, supplement, waiver or modification to
(in each case, whether or not consummated), this Agreement, any other
Loan Document and any other documents prepared in connection herewith
or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the Attorney Costs incurred by the
Administrative Agent, the Syndication Agent or any Arranger with
respect thereto;
(b) pay or reimburse each Bank, each Issuing Bank and the
Administrative Agent on demand for all reasonable costs and expenses
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding) under this Agreement (including
the guaranty contained in Article X), any other Loan Document, and any
such other documents,
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including Attorney Costs incurred by the Administrative Agent, any
Issuing Bank and any Bank and any cost of any consultants retained by
the Administrative Agent; and
(c) pay or reimburse the Administrative Agent and each Issuing
Bank on demand for all appraisal (including, without duplication, the
allocated cost of internal appraisal services), audit, environmental
inspection and review (including, without duplication, the allocated
cost of such internal services), search and filing costs, fees and
expenses, incurred or sustained by the Administrative Agent in
connection with the matters referred to under clause (b) of this
Section 12.04.
12.05 Indemnity. Whether or not the transactions contemplated
hereby shall be consummated, the Borrower shall pay, indemnify, and hold each
Bank, each Issuing Bank, the Administrative Agent, each Arranger, the
Syndication Agent and each of their respective officers, directors, employees,
counsel, agents and attorneys- in-fact (each, an "Indemnified Person") harmless
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs) of any kind or nature whatsoever with respect to (a)
any investigation, litigation or proceeding (including any Insolvency
Proceeding) related to this Agreement or the Loan Documents or the Loans or the
Letters of Credit, or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto and (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the surface
or subsurface of any property owned, leased or at any time operated by Holdings
or any of its Subsidiaries, the generation, storage, transportation, handling or
disposal of Hazardous Materials at any location by Holdings or any of its
Subsidiaries, whether or not owned, leased or operated by Holdings or any of its
Subsidiaries, the noncompliance of any property owned, leased or operated by
Holdings or any of its Subsidiaries with Environmental Laws (including
applicable permits thereunder) applicable to any such property, or any
Environmental Claim asserted against Holdings, any of its Subsidiaries or any
property owned, leased or at any time operated by Holdings or any of its
Subsidiaries, (all the foregoing described in (a) and (b) above, collectively,
the "Indemnified Liabilities"); provided, however, that the Borrower shall have
no obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct of such
Indemnified Person as the same is determined by a final judgment of a court of
competent jurisdiction. The obligations in this Section 12.05 shall survive
payment of all other Obligations.
12.06 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither the Borrower nor Holdings
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and each Bank.
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12.07 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Borrower,
the Administrative Agent and Bank of Americas as an Issuing Bank, which consents
shall not be unreasonably withheld or delayed, at any time assign and delegate
to one or more Eligible Assignees (provided that no written consent of the
Borrower shall be required either in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is a Bank Affiliate of such
Bank or at any time that an Event of Default shall exist) (each an "Assignee")
all, or any ratable part of all, of the Revolving Loans, Revolving Commitment
and the other rights and obligations of such Bank hereunder; provided, however,
that any such assignment to an Eligible Assignee which is not a Bank or a Bank
Affiliate shall be in a minimum amount equal to the lesser of $5,000,000 or the
full amount of the assignor Bank's Revolving Loans and Revolving Commitment; and
provided, still further, that the Borrower, the Issuing Banks and the
Administrative Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Borrower
and the Administrative Agent by such Bank and the Assignee; (ii) such Bank and
its Assignee shall have delivered to the Borrower and the Administrative Agent
an Assignment and Acceptance in the form of Exhibit K ("Assignment and
Acceptance"); (iii) such assignment is recorded by the Administrative Agent in
the Register pursuant to Section 2.02; and (iv) the assignor Bank or Assignee
has paid to the Agent a processing fee in the amount of $3,500; and provided,
still further, that any assignment must include an equal percentage of the
assignor Bank's Revolving Commitment and Revolving Loans.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that the requirements of paragraph (a) above are
satisfied, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents. Anything
herein to the contrary notwithstanding, any Bank assigning all of its Revolving
Loans, Revolving Commitment and other rights and obligations hereunder to an
Assignee shall continue to have the benefit of all indemnities hereunder
following such assignment.
(c) Immediately upon each Assignee's making its payment under
the Assignment and Acceptance and the recordation of same by the Administrative
Agent in the Register pursuant to Section 2.02, this Agreement, shall be deemed
to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Aggregate Revolving
Commitment and the outstanding Revolving Loans arising therefrom.
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(d) Any Bank may at any time sell to one or more banks or
other Persons (a "Participant") participating interests in any Loans, the
Commitments of such Bank and the other interests of such Bank (the "Originating
Bank") hereunder and under the other Loan Documents; provided, however, that (i)
the Originating Bank's obligations under this Agreement shall remain unchanged,
(ii) the Originating Bank shall remain solely responsible for the performance of
such obligations, (iii) the Borrower, the Issuing Bank and the Administrative
Agent shall continue to deal solely and directly with the Originating Bank in
connection with the Originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant shall have rights to
approve any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, provided that such Participant shall have
the right to approve any amendment, consent or waiver described in clauses (ii)
and (iii) of the first proviso to Section 12.01. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections
4.01, 4.03 and 12.05, subject to the same limitations, as though it were also a
Bank hereunder, subject to clause (f) below, and if amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the extent permitted under applicable law, be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, (i) any Bank may assign
all or any portion of the Revolving Loans held by it to any Federal Reserve Bank
or the United States Treasury as collateral security pursuant to Regulation A of
the Federal Reserve Board and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Revolving
Loans made by the Borrower or Holdings to or for the account of the assigning or
pledging Bank in accordance with the terms of this Agreement shall satisfy the
Borrower's or Holdings' obligations hereunder in respect to such assigned
Revolving Loans to the extent of such payment and (ii) with the consent of the
Administrative Agent, any Bank which is a fund may pledge all or any portion of
its Revolving Loans to its trustee in support of its obligations to its trustee.
No such assignment shall release the assigning Bank from its obligations
hereunder.
(f) No Participant shall be entitled to receive any greater
payment under Sections 4.01 or 4.03 than such Originating Bank would have been
entitled to receive with respect to the rights transferred unless such transfer
is made with the Borrower's prior written consent.
12.08 Confidentiality. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information provided to it by Holdings, the Borrower or any Subsidiary of
Holdings, or by the Administrative Agent on Holdings', the Borrower's or such
Subsidiary's behalf, in connection with this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement;
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except to the extent such information (a) was or becomes generally available to
the public other than as a result of a disclosure by the Bank, or (b) was or
becomes available on a non-confidential basis from a source other than the
Borrower or Holdings, provided that such source is not bound by a
confidentiality agreement with the Borrower or Holdings, known to the Bank;
provided further, however, that any Bank may disclose such information (i) at
the request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of such Bank by
any such authority; (ii) pursuant to subpoena or other court process; (iii) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Administrative Agent, such Bank or
their respective Affiliates may be party; (v) to the extent reasonably required
in connection with the exercise of any remedy hereunder or under any other Loan
Document; and (vi) to such Bank's independent auditors, other professional
advisors and employees of such Bank's Bank Affiliates (or any Affiliate of such
Bank engaged in capital market transactions generally) retained by such Bank in
connection with this Agreement so long as such Persons agree to maintain the
confidentiality of all such information disclosed to them. Notwithstanding the
foregoing, the Borrower authorizes each Bank to disclose to any Participant or
Assignee (each, a "Transferee") and to any prospective Transferee, such
financial and other information in such Bank's possession concerning the
Borrower or its Subsidiaries or Holdings which has been delivered to the
Administrative Agent or the Banks pursuant to this Agreement or which has been
delivered to the Administrative Agent or the Banks by the Borrower or Holdings
in connection with the Banks' credit evaluation of the Borrower prior to
entering into this Agreement; provided that, unless otherwise agreed by the
Borrower or Holdings, such Transferee agrees in writing to such Bank to keep
such information confidential to the same extent required of the Banks
hereunder.
12.09 Set-off. In addition to any rights and remedies of the
Banks provided by law, if an Event of Default occurs and is continuing, each
Bank is authorized at any time and from time to time, without prior notice to
the Borrower or Holdings, any such notice being waived by the Borrower and
Holdings to the fullest extent permitted by law, to set off and apply, to the
extent permitted by applicable law, any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing to, such Bank to or for the credit or the account
of the Borrower or Holdings against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Bank shall have made demand under this Agreement or any other Loan
Document and although such Obligations may be contingent or unmatured. Each Bank
agrees promptly to notify the Borrower or Holdings and the Administrative Agent
after any such set-off and application made by such Bank; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this Section 12.09 are in
addition to the other rights and remedies (including other rights of set-off)
which the Bank may have.
12.10 Notification of Addresses, Lending Offices, etc. Each
Bank shall notify the Administrative Agent in writing of any changes in the
address to which notices to the Bank should be directed, of addresses of its
Lending Office, of payment instructions in respect of all
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payments to be made to it hereunder and of such other administrative information
as the Administrative Agent shall reasonably request.
12.11 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
12.12 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
12.13 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the parties hereto and
their permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents
(other than the Arrangers and the Syndication Agent). None of the Administrative
Agent, the Syndication Agent, any Arranger, any Issuing Bank or any Bank shall
have any obligation to any Person not a party to this Agreement or any other
Loan Document.
12.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
PARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
12.15 Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
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LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION 12.15 AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
12.16 Domicile of Loans. Each Bank may transfer and carry its
Revolving Loans at, to or for the account of any office, Subsidiary or Affiliate
of such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Revolving Loans pursuant to this Section 12.16 would,
at the time of such transfer, result in increased costs under Sections 4.01,
4.03 or 4.06 from those being charged by the respective Bank prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
transfer).
12.17 Financial Information. Notwithstanding anything to
contrary contained in Sections 5.01(o)(i) and 5.01(o)(iv), the Banks hereby
agree that the Pro Forma Balance Sheet required by Section 5.01(o)(i) and the
draft of the audited consolidated financial statements of Holdings for its
fiscal year ended December 31, 1997 required by Section 5.01(o)(iv) do not need
to be delivered on or prior to the Closing Date, but instead are required to be
delivered, (x) in the case of the Pro Forma Balance Sheet, on or prior to April
8, 1998, and (y) in the case of the draft of the audited consolidated financial
statements of Holdings for its fiscal year ended December 31, 1997, on or prior
to any Borrowing of Revolving Loans.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
AMERICAN LAWYER MEDIA HOLDINGS, INC.
By: /s/ Anup Bagaria
-------------------------------
Neme: Anup Bagaria
Title: Vice President
Address for notices:
c/o Wassertein Perella & Co., Inc.
31 West 52nd Street, 27th Floor
New York, NY 10019
Attn:. Anup Bagaria
Facsimile: (212) 969-7879
Tel: (212) 969-2609
AMERICAN LAWYER MEDIA, INC.
By: /s/ Anup Bagaria
-------------------------------
Name: Anup Bagaria
Title: Vice President
Address for notices:
c/o Wassertein Perella & Co., Inc.
31 West 52nd Street, 27th Floor
New York, NY 10019
Attn:. Anup Bagaria
Facsimile: (212) 969-7879
Tel: (212) 969-2609
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By /s/ Dietmar Schiel
-------------------------------
Title: Vice President
Address for Notices of
Borrowing/Conversions/
Continuations, payments,
presentments and other
administrative matters:
1850 Gateway Boulevard, 5th Floor
Concord, CA 94520
Attn: Agency Administrative
Services #5596
Josephine T. Flores,
Assistant Vice President
Facsimile: (510) 675-8500
Tel: (510) 675-8374
Address for all other notices
(including with respect to
amendments and waivers:
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn:. Agency Management Services
#108321
Dietmar Schiel, Vice
President
Facsimile: (415) 436-3425
Tel: (415) 436-2769
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as an Issuing Bank
By /s/ Andrea Katter
-------------------------------
Title: Managing Director
Address for notices:
Bank of America National Trust and
Savings Association
CBG Letters of Credit (#32054)
200 W. Jackson Blvd., 17th Floor
Chicago, IL 60606
Attn: Gail S. Miller
Facsimile: (312) 987-6828
Tel: (312) 923-5924
with a copy to:
1850 Gateway Boulevard, 5th Floor
Concord, CA 94520
Attn.: Agency Administrative
Services #5596
Josephine T. Flores,
Assistant Vice President
Facsimile: (510) 675-8500
Tel: (510) 675-8374
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By /s/ Andrea Katter
-------------------------------
Title: Managing Director
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BANCAMERICA ROBERTSON STEPHENS
as an Arranger
By /s/ Amy S. Trapp
-------------------------------
Title: Managing Director
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BANKBOSTON, N.A., as Bank and
as an Issuing Bank
By /s/ Jennifer R. Buras
-------------------------------
Title: Director
Address for notices:
100 Federal Street, 01-08-08
Boston, MA 02110
Attn: Jennifer R. Buras
Director
Facsimile: (617) 434-3401
Tel: (617) 434-5790
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BANCBOSTON SECURITIES INC.,
as Syndication Agent and as an Arranger
By /s/ Julia D. Van Trees
-------------------------------
Title: Managing Director
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