\n
\nSCHEDULE 1.01(a) Lending Offices
\nSCHEDULE 1.01(b) Revolving Commitments
\nSCHEDULE 1.01(c) Subsidiary Guarantors
\nSCHEDULE 6.07 Plans
\nSCHEDULE 6.15 Subsidiaries
\nSCHEDULE 6.24 Insurance
\nSCHEDULE 8.01 Existing Liens
\nSCHEDULE 8.04 Existing Indebtedness
\nSCHEDULE 8.05 Existing Investments<\/p>\nEXHIBIT A Form of Notice of Borrowing
\nEXHIBIT B Form of Notice of Conversion\/Continuation
\nEXHIBIT C Form of Pledge Agreement
\nEXHIBIT D Form of Subsidiary Guaranty
\nEXHIBIT E Form of Guarantor Supplement
\nEXHIBIT F Form of Security Agreement
\nEXHIBIT G Form of Total Leverage Ratio Certificate
\nEXHIBIT H Form of Jones, Day, Reavis & Pogue Opinion
\nEXHIBIT I Form of White & Case LLP Opinion
\nEXHIBIT J Form of Compliance Certificate
\nEXHIBIT K Form of Assignment and Acceptance
\nEXHIBIT L Form of Intercompany Note
\nEXHIBIT M Form of Subordination Provisions
\nEXHIBIT N Form of Solvency Certificate
\nEXHIBIT O Form of Section 4.01(f)(i) Certificate<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
CREDIT AGREEMENT<\/p>\n
CREDIT AGREEMENT, dated as of March 25, 1998, among AMERICAN LAWYER
\nMEDIA HOLDINGS, INC., a Delaware corporation (“Holdings”), AMERICAN LAWYER
\nMEDIA, INC., a Delaware corporation (the “Borrower”), the several lenders from
\ntime to time party to this Agreement (the “Banks”), BANK OF AMERICA NATIONAL
\nTRUST AND SAVINGS ASSOCIATION, as Issuing Bank, BANK OF AMERICA NATIONAL TRUST
\nAND SAVINGS ASSOCIATION, as Administrative Agent, BANCBOSTON SECURITIES INC., as
\nSyndication Agent, and BANCAMERICA ROBERTSON STEPHENS and BANCBOSTON SECURITIES
\nINC., as Arrangers.<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, subject to and upon the terms and conditions set forth herein,
\nthe Banks are willing to make available to the Borrower the revolving credit
\nfacility provided for herein;<\/p>\n
NOW, THEREFORE, in consideration of the mutual agreements, provisions
\nand covenants contained herein, the parties agree as follows:<\/p>\n
ARTICLE I.<\/p>\n
DEFINITIONS<\/p>\n
1.01 Defined Terms. As used in this Agreement, the capitalized terms in
\nthe preamble and the recitals hereto shall have the meanings therein given them,
\nand the following words and terms shall have the meanings specified below:<\/p>\n
“Acquired Entity or Business” has the meaning specified in the
\ndefinition of “Consolidated Net Income”.<\/p>\n
“Acquisition” means the acquisition by the Borrower of all the issued
\nand outstanding shares of capital stock of NLP pursuant to, and in accordance
\nwith the terms of, the Acquisition Agreement.<\/p>\n
“Acquisition Agreement” means the Purchase Agreement, dated as of
\nOctober 23, 1997, by and among Boston Ventures Limited Partnership IV, Boston
\nVentures Limited Partnership IVA, James A. Finkelstein and the Borrower.<\/p>\n
“Acquisition Documents” means the Acquisition Agreement and all other
\ndocumentation entered into pursuant to the Acquisition Agreement.<\/p>\n
“Additional Security Documents” has the meaning specified in Section
\n7.11.<\/p>\n
“Adjusted Consolidated EBITDA” means, for any period, Consolidated
\nEBITDA for such period, adjusted by adding thereto up to $10,000,000 of
\nDevelopment Costs actually incurred by Holdings and its Subsidiaries for such
\nperiod, provided that such Development Costs shall only be added back to the
\nextent that (i) same reduced Consolidated Net Income for such period and (ii) as
\nof the last day of such period, Holdings and its Subsidiaries had unrestricted
\ncash and Cash Equivalents on their balance sheet in an amount equal to the
\namount of such Development Costs plus $3,000,000 (net of the aggregate
\noutstanding principal amount of Revolving Loans as of the last day of such
\nperiod (other than Revolving Loans incurred to finance a Permitted Acquisition
\nand to pay the fees and expenses related thereto)).<\/p>\n
“Adjusted Consolidated Net Income” means, for any period, Consolidated
\nNet Income for such period plus, without duplication, the amount of all net
\nnon-cash charges (including, without limitation, depreciation, amortization,
\ndeferred tax expense and non-cash interest expense, but excluding any net
\nnon-cash charges reflected in Adjusted Consolidated Working Capital) and net
\nnon-cash losses which were included in arriving at Consolidated Net Income for
\nsuch period less the amount of all net non-cash gains (exclusive of items
\nreflected in Adjusted Consolidated Working Capital) included in arriving at
\nConsolidated Net Income for such period.<\/p>\n
“Adjusted Consolidated Working Capital” means, at any time,
\nConsolidated Current Assets (but excluding therefrom all cash and Cash
\nEquivalents) less Consolidated Current Liabilities at such time.<\/p>\n
“Adjustment Date” means (A) the earlier of (x) the date which is 90
\ndays after Holdings’ fiscal quarter ending December 31, 1998 and (y) the date
\nwhich is two Business Days after Holdings has delivered a Total Leverage Ratio
\nCertificate to the Administrative Agent in accordance with Section 12.02 as of
\nthe end of a fiscal quarter (the “First Adjustment Date”) and (B) after the
\nFirst Adjustment Date, the earlier of (x) each date which is 45 days after the
\nend of a fiscal quarter of Holdings (or, in the case of the fourth fiscal
\nquarter of Holdings, 90 days after the end of such fiscal quarter) and (y) the
\ndate which is two Business Days after Holdings has delivered a Total Leverage
\nRatio Certificate to the Administrative Agent in accordance with Section 12.02
\nas of the end of a fiscal quarter.<\/p>\n
“Administrative Agent” means Bank of America in its capacity as agent
\nfor the Banks hereunder, and any successor agent.<\/p>\n
“Administrative Agent’s Payment Office” means the address for payments
\nset forth on the signature page hereto in relation to the Administrative Agent
\nor such other address as the Administrative Agent may from time to time specify
\nin accordance with Section 12.02.<\/p>\n
“Affiliate” means, with respect to any Person, any other Person (i)
\ndirectly or indirectly controlling, controlled by, or under direct or indirect
\ncommon control with, such Person or (ii) that directly or indirectly owns more
\nthan 5% of any class of the capital stock of, or equity interests in, such
\nPerson. A Person shall be deemed to control another Person if such <\/p>\n
-2-<\/p>\n
Person possesses, directly or indirectly, the power to direct or cause the
\ndirection of the management and policies of such other Person, whether through
\nthe ownership of voting securities, by contract or otherwise.<\/p>\n
“Agent” means Bank of America, in its capacity as Administrative Agent
\nand as Collateral Agent, in each case for the Banks hereunder, and shall include
\nany successor to the Agent appointed pursuant to Article XI.<\/p>\n
“Agent-Related Persons” has the meaning specified in Section 11.03.<\/p>\n
“Aggregate Revolving Commitment” means the combined Revolving
\nCommitments of the Banks in the initial principal amount of $40,000,000 as such
\namount may be reduced from time to time pursuant to this Agreement.<\/p>\n
“Agreement” means this Credit Agreement as from time to time amended,
\nmodified or supplemented.<\/p>\n
“ALM Acquisition” means Cranberry Partners, LLC (the predecessor of
\nAmerican Lawyer Media Holdings, Inc.).<\/p>\n
“Applicable Excess Cash Flow Percentage” means 50%, provided that so
\nlong as no Default or Event of Default then exists and the Consolidated Total
\nLeverage Ratio on the respective Excess Cash Flow Payment Date (before giving
\neffect to any such repayment on such date) is less than 5.00:1.00 as
\ndemonstrated in the Total Leverage Ratio Certificate delivered to the
\nAdministrative Agent in accordance with Section 12.02 at such time, then the
\nforegoing percentage shall instead be 25%.<\/p>\n
“Applicable Margin” means the margin to be added to the Base Rate or
\nthe Eurodollar Rate, as the case may be, in accordance with Section 2.09(a).<\/p>\n
“Arranger” means each of BancAmerica Robertson Stephens and BancBoston
\nSecurities Inc.<\/p>\n
“Asset Sale” means the direct or indirect sale, lease (other than
\noperating leases entered into in the ordinary course of business), transfer,
\nconveyance or other disposition (including, without limitation, dispositions
\npursuant to sale and leaseback transactions), in a single transaction or a
\nseries of transactions, by Holdings or any of its Subsidiaries to any Person
\n(other than to Holdings or any of its Wholly-Owned Subsidiaries) of any property
\nor assets of Holdings or any of its Subsidiaries, other than sales of assets
\npursuant to Sections 8.02(ii), (iii), (vii), (viii), (x) and (xi).<\/p>\n
“Assignee” has the meaning specified in Section 12.07(a).<\/p>\n
“Assignment and Acceptance” has the meaning specified in Section
\n12.07(a).<\/p>\n
-3-<\/p>\n
“Attorney Costs” means and includes all reasonable fees and
\ndisbursements of any law firm or other external counsel and, without
\nduplication, the allocated cost of internal legal services and all reasonable
\ndisbursements of internal counsel.<\/p>\n
“Bank Affiliate” means an Affiliate of a Bank, including, in the case
\nof any Bank that is a fund that invests in loans, any other fund that invests in
\nloans and is managed or advised by the same investment advisor of such Bank or
\nby an Affiliate of such investment advisor.<\/p>\n
“Bank of America” means Bank of America National Trust and
\nSavings Association, a national banking association, in its individual capacity.<\/p>\n
“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11
\nU.S.C. Section 101, et seq.).<\/p>\n
“Banks” has the meaning specified in the preamble hereto i.e. at any
\ntime, each Bank with a Revolving Commitment or with outstanding Revolving Loans.<\/p>\n
“Base Rate” means, for any day, the higher of (a) the Reference Rate or
\n(b) the Federal Funds Rate plus 1\/2%, in each case as in effect for such day.<\/p>\n
“Base Rate Loan” means each Revolving Loan that bears interest based on
\nthe Base Rate.<\/p>\n
“Borrower” has the meaning specified in the preamble hereto.<\/p>\n
“Borrower Senior Note Documents” means the Borrower Senior Note
\nIndenture, the Borrower Senior Notes and all other documents and agreements
\nexecuted and delivered pursuant to the Borrower Senior Note Indenture.<\/p>\n
“Borrower Senior Note Exchange Offer” means the exchange offer for the
\nBorrower Senior Notes pursuant to the applicable Borrower Senior Note Documents
\nfor new Borrower Senior Notes which have been registered under the Securities
\nAct of 1933, as amended.<\/p>\n
“Borrower Senior Note Indenture” means the Indenture, dated as December
\n22, 1997, among the Borrower, the Subsidiary Guarantors and The Bank of New
\nYork, as trustee, as amended, modified or supplemented from time to time in
\naccordance with the terms hereof and thereof.<\/p>\n
“Borrower Senior Notes” means the Borrower’s 9-3\/4% senior notes due
\n2007 (which term includes the senior notes of the Borrower issued as part of the
\nBorrower Senior Note Exchange Offer).<\/p>\n
“Borrowing” means a borrowing hereunder consisting of Revolving Loans
\nmade to the Borrower on the same Borrowing Date by the Banks ratably according
\nto their respective Revolving Commitment Percentages and in the case of
\nEurodollar Loans, having the same <\/p>\n
-4-<\/p>\n
Interest Periods, provided that any Base Rate Loans incurred pursuant to Section
\n4.02 shall be considered as part of the related Borrowing of Eurodollar Loans.<\/p>\n
“Borrowing Date” means, in relation to any Revolving Loan, the date of
\nthe borrowing of such Revolving Loan as specified in the relevant Notice of
\nBorrowing.<\/p>\n
“Business Day” means any day other than a Saturday, Sunday or other day
\non which commercial banks in San Francisco, Chicago or New York City are
\nauthorized or required by law to close and, if such term is used in relation to
\nany Eurodollar Loan or the Interest Period therefor, any such day on which
\ndealings are carried on by and between banks in Dollar deposits in the
\napplicable interbank market.<\/p>\n
“Capital Adequacy Regulation” means any guideline, request or directive
\nof any central bank or other Governmental Authority, or any other law, rule or
\nregulation, whether or not having the force of law (but with which a Bank
\ncustomarily complies) regarding capital adequacy of any Bank or of any
\ncorporation controlling a Bank.<\/p>\n
“Capital Expenditures” means, for any period and with respect to any
\nPerson, the aggregate of all expenditures by such Person and its Subsidiaries
\nfor the acquisition or leasing of fixed or capital assets or additions to
\nequipment (including replacements, capitalized repairs and improvements during
\nsuch period) which is capitalized under GAAP on a consolidated balance sheet of
\nsuch Person and its Subsidiaries.<\/p>\n
“Capital Lease” has the meaning specified in the definition of “Capital
\nLease Obligations”.<\/p>\n
“Capital Lease Obligations” means all monetary obligations of Holdings
\nor any of its Subsidiaries under any leasing or similar arrangement which, in
\naccordance with GAAP, is classified as a capital lease (“Capital Lease”).<\/p>\n
“Cash Collateralize” means to pledge and deposit with or deliver to the
\nAdministrative Agent, for the benefit of the Administrative Agent, the Issuing
\nBanks and the Banks, as collateral for the Letter of Credit Obligations, cash or
\ndeposit account balances pursuant to documentation in form and substance
\nreasonably satisfactory to the Administrative Agent and the Issuing Banks (which
\ndocuments are hereby consented to by the Banks). Derivatives of such term shall
\nhave corresponding meanings. Cash collateral shall be invested in Cash
\nEquivalents of a tenor reasonably satisfactory to the Administrative Agent and
\nas instructed by the Borrower, which Cash Equivalents shall be held in the name
\nof the Borrower and under the control of the Administrative Agent in a manner
\nreasonably satisfactory to the Collateral Agent.<\/p>\n
“Cash Equivalents” means any or all of the following: (i) obligations
\nof, or guaranteed as to interest and principal by, the United States Government
\nmaturing within one year after the date on which such obligations are purchased;
\n(ii) marketable direct obligations issued by any State of the United States or
\nany political subdivision of any such State or any public instrumentality
\nthereof maturing within one year after the date on which such obligations <\/p>\n
-5-<\/p>\n
are purchased and, at the time of such purchase, have one of the two highest
\nratings obtainable from either Moody’s or S&P; (iii) open market commercial
\npaper of any corporation (other than Holdings, the Borrower or any of its
\nSubsidiaries) incorporated under the laws of the United States or any State
\nthereof or the District of Columbia rated P-1 or its equivalent by Moody’s or
\nA-1 or its equivalent or higher by S&P; (iv) time deposits or certificates of
\ndeposit maturing within one year after the issuance thereof issued by commercial
\nbanks organized under the laws of any country which is a member of the OECD and
\nhaving a combined capital and surplus in excess of $500,000,000 or which is a
\nBank; (v) repurchase agreements with a term of not more than seven days with
\nrespect to securities described in clause (i) above entered into with an office
\nof a bank or trust company meeting the criteria specified in clause (iv) above;
\n(vi) bankers’ acceptances with maturities not exceeding one year and overnight
\nbank deposits in each case with an office of a bank or trust company meeting the
\ncriteria specified in clause (iv) above; and (vii) money market, mutual or
\nsimilar funds substantially all of whose investments are comprised of the
\ninvestments described in clauses (i) through (vi) above and which have net
\nassets of not less than $500,000,000 and have at least one of the two highest
\nratings obtainable from either Moody’s or S&P.<\/p>\n
“CERCLA” means the Comprehensive Environmental Response, Compensation,
\nand Liability Act of 1980, as the same may be amended from time to time, 42
\nU.S.C. ss. 9601 et seq.<\/p>\n
“Change of Control” means (a) the Permitted Holders shall cease to own
\non a fully diluted basis in the aggregate at least 51% of the economic and
\nvoting interest in Holdings’ capital stock or (b) the Borrower shall cease to be
\na direct Wholly-Owned Subsidiary of Holdings or (c) a “change of control” or
\nsimilar event shall occur under the Borrower Senior Note Documents or the
\nHoldings Senior Discount Note Documents.<\/p>\n
“Closing Date” means the date on which all conditions precedent set
\nforth in Sections 5.01 and 5.02 have been satisfied or waived in accordance with
\nthis Agreement.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended from time to
\ntime, and the regulations promulgated and rulings issued thereunder. Section
\nreferences to the Code are to the Code, as in effect at the date of this
\nAgreement and any subsequent provisions of the Code, amendatory thereof,
\nsupplemental thereto or substituted therefor.<\/p>\n
“Collateral” means all property with respect to which any security
\ninterest has been granted (or purported to be granted) pursuant to any
\nCollateral Document, as well as all Obligations which have been Cash
\nCollateralized.<\/p>\n
“Collateral Agent” means the Administrative Agent acting as collateral
\nagent for the Banks pursuant to the Collateral Documents.<\/p>\n
“Collateral Documents” means the Pledge Agreement, the Subsidiary
\nGuaranty, the Security Agreement, each Additional Security Document and each
\nGuarantor Supplement.<\/p>\n
-6-<\/p>\n
“Compliance Certificate” means the compliance certificate in
\nsubstantially the form of Exhibit J, to be executed by a Responsible Officer of
\nHoldings and delivered pursuant to Section 7.02(a).<\/p>\n
“Consolidated Current Assets” means, at any time, the consolidated
\ncurrent assets of Holdings and its Subsidiaries at such time.<\/p>\n
“Consolidated Current Liabilities” means, at any time, the consolidated
\ncurrent liabilities of Holdings and its Subsidiaries at such time, but excluding
\nthe current portion of any Indebtedness under this Agreement and any other
\nlong-term Indebtedness which would otherwise be included therein.<\/p>\n
“Consolidated EBIT” means, for any period, Consolidated Net Income for
\nsuch period before Consolidated Interest Expense (calculated without regard to
\nthe proviso contained in the definition thereof) and provision for taxes for
\nsuch period and without giving effect to (x) any extraordinary gains or losses
\nor (y) any gains or losses from sales of assets other than from sales of
\ninventory (including advertising space) sold in the ordinary course of business.<\/p>\n
“Consolidated EBITDA” means, for any period, Consolidated EBIT for such
\nperiod, adjusted by (x) adding thereto, without duplication, the sum of (i) the
\namount of all amortization of goodwill and other intangibles (including debt
\nissuance and other deferred financing, legal and accounting costs (including
\nthose associated with the Transaction), depreciation and other non-cash charges
\nto the extent that same were deducted in arriving at Consolidated EBIT for such
\nperiod, (ii) for any Measurement Period which includes any portion of Holdings’
\nfiscal year 1998, up to $1,500,000 of losses in the aggregate that have been
\nincurred on or after January 1, 1998 and are included in such Measurement Period
\nto the extent relating to the on-line businesses of the Borrower or any of its
\nSubsidiaries existing as of January 1, 1998 and to the extent that same were
\ndeducted in arriving at Consolidated EBIT for such period (it being understood
\nand agreed however, that no more than (x) $800,000 of such losses may be added
\nback in respect of the Measurement Period ending on June 30, 1998 and (y)
\n$1,200,000 of such losses may be added back in respect of the Measurement Period
\nending on September 30, 1998) and (iii) for any Measurement Period which
\nincludes any portion of Holdings’ fiscal year 1997, 1998 or 1999 and in which
\nthe Borrower or any of its Subsidiaries acquired an Acquired Entity or Business
\npursuant to a Permitted Acquisition, up to $1,500,000 of losses in the aggregate
\nthat have been incurred by all such Acquired Entities or Businesses and are
\nincluded in such Measurement Period to the extent relating to the on-line
\nbusinesses of such Acquired Entities or Businesses and to the extent that such
\nlosses were deducted in arriving at Consolidated EBIT for such period, although
\nno such losses of any Acquired Entity or Business shall be added back pursuant
\nto this clause (iii) if the revenues generated by the on-line business of such
\nAcquired Entity or Business accounted for more that 20% of the aggregate
\nrevenues of such Acquired Entity or Business for such Measurement Period and (y)
\nsubtracting therefrom any cash expenses, cash charges or cash payments arising
\nfrom any non-cash expenses or non-cash charges that were added back to
\nConsolidated EBITDA pursuant to clause (x)(i) above in a previous period;
\nprovided that, for the purposes of determining the Consolidated Total Leverage
\nRatio, and subject to the further proviso below, (x) in the case of the
\nMeasurement Period ending <\/p>\n
-7-<\/p>\n
on June 30, 1998, Consolidated EBITDA for such Measurement Period shall be the
\nsum of (A) Holdings’ and its Subsidiaries’ pro forma Consolidated EBITDA for the
\nperiod July 1, 1997 to December 31, 1997 less Internet Services for such period
\n(with such amounts to be calculated in the same manner as in the Offering
\nMemorandum dated December 17, 1997 relating to the Holdings Senior Discount
\nNotes) plus (B) the actual Consolidated EBITDA for the period January 1, 1998 to
\nJune 30, 1998, as calculated above in this definition and (y) in the case of the
\nMeasurement Period ending on September 30, 1998, Consolidated EBITDA for such
\nMeasurement Period shall be the sum of (A) Holdings’ and its Subsidiaries’ pro
\nforma Consolidated EBITDA for the period September 30, 1997 to December 31, 1997
\nless Internet Services for such period (with such amounts to be calculated in
\nthe same manner as in the Offering Memorandum dated December 17, 1997 relating
\nto the Holdings Senior Discount Notes) plus (B) the actual Consolidated EBITDA
\nfor the period January 1, 1998 to September 30, 1998, as calculated above in
\nthis definition, and provided, further, that the division of the Borrower
\ncomprised of the assets of Corporate Presentations, Inc. shall be included in
\nthe calculation of Consolidated EBITDA for the Measurement Periods ending June
\n30, 1998, September 30, 1998 and December 31, 1998 by taking into account the
\nactual EBITDA of Corporation Presentations, Inc. (calculated in a manner similar
\nto that set forth above but without making the adjustments described in clauses
\n(ii) and (iii) above) for the relevant Measurement Period ending on each such
\ndate. Notwithstanding anything to the contrary contained above in this
\ndefinition, (x) in no event shall more than $700,000 of Internet Services (as
\ncalculated pursuant to the Offering Memorandum referenced above) in the
\naggregate be added back to Consolidated EBIT in respect of the period July 1,
\n1997 through December 31, 1997 and (y) in no event shall more than $300,000 of
\nInternet Services (as calculated pursuant to the Offering Memorandum referenced
\nabove) in the aggregate be added back to Consolidated EBIT in respect of the
\nperiod October 1, 1997 through December 31, 1997 .<\/p>\n
“Consolidated Fixed Charge Coverage Ratio” means, for any period, the
\nratio of (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated
\nFixed Charges for such period.<\/p>\n
“Consolidated Fixed Charges” means, for any period, the sum, without
\nduplication, of (i) Consolidated Interest Expense for such period, (ii) the
\namount of all Capital Expenditures made by Holdings and its Subsidiaries for
\nsuch period (other than (x) Capital Expenditures to the extent financed with
\nequity proceeds, Asset Sale proceeds, insurance proceeds or Indebtedness (other
\nthan with Revolving Loans) and (y) Capital Expenditures made in fiscal year 1998
\nbut only to the extent that such Capital Expenditures were financed with
\ninternally generated funds and so as long as the amount of cash and Cash
\nEquivalents held by Holdings and its Subsidiaries as of the last day of such
\nperiod equals or exceeds the amount of such Capital Expenditures made by
\nHoldings and its Subsidiaries during fiscal year 1998 (net of the aggregate
\noutstanding principal amount of Revolving Loans on the last day of such period),
\nother than Revolving Loans incurred to finance a Permitted Acquisition and to
\npay the fees and expenses related thereto), (iii) the scheduled principal amount
\nof all amortization payments on all Indebtedness (including, without limitation,
\nthe principal component of all Capitalized Lease Obligations but excluding the
\nRefinancing) of Holdings and its Subsidiaries for such period (as determined on
\nthe first day of such period), (iv) the amount of all cash payments made by<\/p>\n
-8-<\/p>\n
Holdings and its Subsidiaries in respect of taxes or tax liabilities for such
\nperiod and (v) the amount of all Development Costs incurred by Holdings and its
\nSubsidiaries for such period.<\/p>\n
“Consolidated Interest Coverage Ratio” means, for any period, the ratio
\nof (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated Interest
\nExpense for such period.<\/p>\n
“Consolidated Interest Expense” means, for any period, the total
\nconsolidated interest expense of Holdings and its Subsidiaries for such period
\n(calculated without regard to any limitations on the payment thereof) plus,
\nwithout duplication, that portion of Capital Lease Obligations of Holdings and
\nits Subsidiaries representing the interest factor for such period, provided that
\n(x) the amortization of debt issuance and deferred financing, legal and
\naccounting costs with respect to this Agreement, the Borrower Senior Notes and
\nthe Holdings Senior Discount Notes, (y) all fees and expenses incurred in
\nconnection with the Transaction and (z) all interest expense on the Holdings
\nSenior Discount Notes to the extent accrued prior to December 15, 2002, in each
\ncase shall be excluded from Consolidated Interest Expense to the extent same
\nwould otherwise have been included therein.<\/p>\n
“Consolidated Net Income” means, for any period, the net income (or
\nloss) of Holdings and its Subsidiaries for such period, determined on a
\nconsolidated basis (after any deduction for minority interests), provided that
\n(i) in determining Consolidated Net Income, the net income of any other Person
\nwhich is not a Subsidiary of Holdings or is accounted for by Holdings by the
\nequity method of accounting shall be included only to the extent of the payment
\nof cash dividends or distributions by such other Person to Holdings or a
\nSubsidiary thereof during such period, (ii) the net income of any Subsidiary of
\nthe Borrower shall be excluded to the extent that the declaration or payment of
\ncash dividends or similar distributions by that Subsidiary of that net income is
\nnot at the date of determination permitted by operation of its charter or any
\nagreement, instrument or law applicable to such Subsidiary, (iii) the net income
\n(or loss) of any other Person acquired by such specified Person or a Subsidiary
\nof such Person in a pooling of interests transaction for any period prior to the
\ndate of such acquisition shall be excluded, and (iv) in determining compliance
\nwith Section 8.09 and in determining the Applicable Margin, the commitment fee
\nand the letter of credit fee hereunder there shall be included (to the extent
\nnot already included) in determining Consolidated Net Income for any period the
\nnet income (or loss) of any Person, business, property or asset acquired during
\nsuch period pursuant to a Permitted Acquisition and not subsequently sold or
\notherwise disposed of by Holdings or one of its Subsidiaries during such period
\n(each such Person, business, property or asset acquired and not subsequently
\ndisposed of during such period, an “Acquired Entity or Business”), in each case
\nbased on the actual net income (or loss) of such Acquired Entity or Business for
\nthe entire period (including the portion thereof occurring prior to such
\nacquisition).<\/p>\n
“Consolidated Total Indebtedness” means, at any time, the principal
\namount of all Indebtedness of Holdings and its Subsidiaries at such time
\n(excluding the Holdings Senior Discount Notes) determined on a consolidated
\nbasis to the extent that such Indebtedness would be accounted for as debt on the
\nliability side of a balance sheet in accordance with GAAP plus, without
\nduplication, (i) the maximum amount available to be drawn under all letters of
\ncredit <\/p>\n
-9-<\/p>\n
(including any Letters of Credit), bankers acceptances and similar obligations
\nissued for the account of Holdings and its Subsidiaries and all unpaid drawings
\nor reimbursement obligations in respect thereof, (ii) the principal amount of
\nall bonds issued by Holdings and its Subsidiaries in connection with workers’
\ncompensation obligations, lease obligations, surety and similar obligations, and
\n(iii) the amount of all Contingent Obligations of Holdings and its Subsidiaries
\ndetermined on a consolidated basis in respect of Indebtedness of other Persons
\nof the type described above in this definition.<\/p>\n
“Consolidated Total Leverage Ratio” means, at any time, the ratio of
\n(i) Consolidated Total Indebtedness at such time to (ii) Adjusted Consolidated
\nEBITDA for the Measurement Period then most recently ended.<\/p>\n
“Contingent Obligation” means, as applied to any Person, any obligation
\nof such Person as a result of such Person being a general partner of the other
\nPerson, unless the underlying obligation is expressly made non-recourse as to
\nsuch general partner, and any direct or indirect liability of that Person with
\nrespect to any Indebtedness, lease, dividend, letter of credit or other
\nobligation (the “primary obligations”) of another Person (the “primary
\nobligor”), including any obligation of that Person, whether or not contingent,
\n(a) to purchase, repurchase or otherwise acquire such primary obligations or any
\nproperty constituting direct or indirect security therefor; (b) to advance or
\nprovide funds (i) for the payment or discharge of any such primary obligation,
\nor (ii) to maintain working capital or equity capital of the primary obligor or
\notherwise to maintain the net worth or solvency or any balance sheet item, level
\nof income or financial condition of the primary obligor; (c) to purchase
\nproperty, securities or services primarily for the purpose of assuring the owner
\nof any such primary obligation of the ability of the primary obligor to make
\npayment of such primary obligation; or (d) otherwise to assure or hold harmless
\nthe holder of any such primary obligation against loss in respect thereof; in
\neach case, including arrangements wherein the rights and remedies of the holder
\nof the primary obligation are limited to repossession or sale of certain
\nproperty of such Person. The amount of any Contingent Obligation shall be deemed
\nequal to the stated or determinable amount of the primary obligation in respect
\nof which such Contingent Obligation is made (or if less, the stated or
\ndeterminable amount of such Contingent Obligation) or, if not stated or if
\nindeterminable, the maximum reasonably anticipated liability in respect thereof.<\/p>\n
“Continuation Date” means any date on which the Borrower elects to
\ncontinue a Eurodollar Loan as a Eurodollar Loan for a further Interest Period in
\naccordance with the provisions of Section 2.04.<\/p>\n
“Contractual Obligations” means, as to any Person, any provision of any
\nsecurity issued by such Person or of any agreement, undertaking, contract,
\nindenture, mortgage, deed of trust or other instrument, document or agreement to
\nwhich such Person is a party or by which it or any of its property is bound.<\/p>\n
“Conversion Date” means any date on which the Borrower elects to
\nconvert a Base Rate Loan to a Eurodollar Loan, or a Eurodollar Loan to a Base
\nRate Loan, in each case in accordance with the provisions of Section 2.04.<\/p>\n
-10-<\/p>\n
“Credit Party” means each of Holdings, the Borrower and each Subsidiary
\nGuarantor.<\/p>\n
“Default” means any event or circumstance which, with the giving of
\nnotice, the lapse of time, or both, would (if not cured or otherwise remedied
\nduring such time) constitute an Event of Default.<\/p>\n
“Development Costs” means those identifiable initial one-time start-up
\ncosts incurred by Holdings and its Subsidiaries in connection with their
\nimplementation (as opposed to an acquisition) of new publications such as books,
\nnewspapers, magazines, web sites, supplements and the like and as may be
\nreasonably approved by Bank of America (or any successor Administrative Agent)
\nand the Syndication Agent.<\/p>\n
“Disbursement Date” has the meaning specified in Section 3.03(b).<\/p>\n
“Dividend” with respect to any Person means that such Person has
\ndeclared or paid a dividend or returned any equity capital to its stockholders
\nas such or made any other distribution, payment or delivery of property or cash
\nto its stockholders as such, or redeemed, retired, purchased or otherwise
\nacquired, directly or indirectly, for a consideration any shares of any class of
\nits capital stock outstanding on or after the Effective Date (or any options or
\nwarrants issued by such Person with respect to its capital stock), or set aside
\nany funds for any of the foregoing purposes, or shall have permitted any of its
\nSubsidiaries to purchase or otherwise acquire for a consideration any shares of
\nany class of the capital stock of such Person outstanding on or after the
\nClosing Date (or any options or warrants issued by such Person with respect to
\nits capital stock). Without limiting the foregoing, “Dividends” with respect to
\nany Person shall also include all cash payments made or required to be made by
\nsuch Person with respect to any stock appreciation rights plans, equity
\nincentive or achievement plans or any similar plans or setting aside of any
\nfunds for the foregoing purposes.<\/p>\n
“Dollars” and “$” each mean lawful money of the United States.<\/p>\n
“Domestic Lending Office” has the meaning provided in the definition of
\n“Lending Office”.<\/p>\n
“Domestic Subsidiary” means each Subsidiary of Holdings that is
\nincorporated under the laws of the United States or any State or territory
\nthereof.<\/p>\n
“Eligible Assignee” means and includes (a) a commercial bank or (b) a
\nfinancial institution, a fund or other “accredited investor” (as defined in
\nRegulation D of the Securities Act) that is engaged in making, purchasing or
\notherwise investing in commercial loans in the ordinary course of its business.<\/p>\n
“Environmental Claims” means all actions, suits, proceedings or claims
\nby any Governmental Authority or other Person alleging potential liability or
\nresponsibility for violation of any Environmental Law or for release or injury
\nto the environment or threat to public health, personal injury (including
\nsickness, disease or death), property damage, natural resources <\/p>\n
-11-<\/p>\n
damage, or otherwise alleging liability or responsibility for damages (punitive
\nor otherwise), cleanup, removal, remedial or response costs, restitution, civil
\nor criminal penalties, injunctive relief, or other type of relief, resulting
\nfrom or based upon (a) the presence, placement, discharge, emission or release
\n(including intentional and unintentional, negligent and non-negligent, sudden or
\nnon-sudden, accidental or non-accidental placement, spills, leaks, discharges,
\nemissions or releases) of any Hazardous Material at, in, or from property,
\nwhether or not owned by Holdings or any of its Subsidiaries, or (b) any other
\ncircumstances forming the reasonable basis of any violation, or alleged
\nviolation, of any Environmental Law.<\/p>\n
“Environmental Law” has the meaning specified in the definition of
\n“Hazardous Material”.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time, and the regulations promulgated and rulings issued
\nthereunder. Section references to ERISA are to ERISA, as in effect at the date
\nof this Agreement and any subsequent provisions of ERISA, amendatory thereof,
\nsupplemental thereto or substituted therefor.<\/p>\n
“ERISA Affiliate” means each person (as defined in Section 3(9) of
\nERISA) which together with Holdings or a Subsidiary of Holdings would be deemed
\nto be a “single employer” (i) within the meaning of Section 414(b), (c), (m) or
\n(o) of the Code or (ii) as a result of Holdings or a Subsidiary of Holdings
\nbeing a general partner of such person.<\/p>\n
“Eurodollar Lending Office” has the meaning provided in the definition
\nof “Lending Office”.<\/p>\n
“Eurodollar Loan” means a Revolving Loan that bears interest based on
\nthe Eurodollar Rate.<\/p>\n
“Eurodollar Rate” means, for any Interest Period with respect to
\nEurodollar Loans comprising part of the same Borrowing, the per annum rate of
\ninterest (rounded upward to the next 1\/100th of 1%) determined by the
\nAdministrative Agent (whose determination shall be conclusive in the absence of
\nmanifest error) as follows:<\/p>\n
Eurodollar Rate = Eurodollar Base Rate<\/p>\n
1.00 – Eurodollar Reserve Percentage<\/p>\n
Where,<\/p>\n
“Eurodollar Reserve Percentage” means for any day for any Interest
\n Period the maximum reserve percentage (expressed as a decimal, rounded
\n upward to the next 1\/100th of 1%) in effect on such day (whether or not
\n applicable to any Bank) under regulations issued from time to time by
\n the Federal Reserve Board for determining the maximum reserve
\n requirement (including any emergency, supplemental or other marginal
\n reserve requirement) with respect to Eurocurrency funding (currently
\n referred to as <\/p>\n
-12-<\/p>\n
“Eurocurrency liabilities”). The Eurodollar Rate for any outstanding
\n Eurodollar Loans shall be adjusted automatically as of the effective
\n date of any change in the Eurodollar Reserve Percentage.<\/p>\n
“Eurodollar Base Rate” means the interest rate per annum (rounded
\nupward to the next 1\/16 of 1%) at which deposits in Dollars are offered by Bank
\nof America’s applicable Lending Office to major banks in the offshore market at
\nor about 11:00 a.m. (New York City time), two Business Days before the first day
\nof the applicable Interest Period in an aggregate amount approximately equal to
\nthe amount of the Loan made by Bank of America with respect to such Eurodollar
\nLoan and for a period of time comparable to the number of days in the applicable
\nInterest Period.<\/p>\n
The determination of the Eurodollar Reserve Percentage and the
\nEurodollar Base Rate by the Administrative Agent shall be conclusive in the
\nabsence of manifest error.<\/p>\n
“Event of Default” means any of the events or circumstances specified
\nin Section 9.01.<\/p>\n
“Excess Cash Flow” means, for any period, the remainder of (a) the sum
\nof (i) Adjusted Consolidated Net Income for such period and (ii) the decrease,
\nif any, in Adjusted Consolidated Working Capital from the first day to the last
\nday of such period, minus (b) the sum of (i) the amount of all Capital
\nExpenditures made by Holdings and its Subsidiaries during such period (other
\nthan Capital Expenditures to the extent financed with equity proceeds, Asset
\nSale proceeds or insurance proceeds or Indebtedness (other than with Revolving
\nLoans), (ii) the aggregate amount of permanent principal payments of
\nIndebtedness for borrowed money of Holdings and its Subsidiaries during such
\nperiod (other than repayments of Revolving Loans, provided that repayments of
\nRevolving Loans shall be deducted in determining Excess Cash Flow if such
\nrepayments were made as a voluntary prepayment with internally generated funds
\nand were accompanied by a voluntary reduction to the Aggregate Revolving
\nCommitment)), (iii) the amount of all Permitted Acquisitions made by Holdings
\nand its Subsidiaries during such period (other than Permitted Acquisitions to
\nthe extent financed with equity proceeds, the issuance of capital stock, Asset
\nSale proceeds or Indebtedness (other than with Revolving Loans) and (iv) the
\nincrease, if any, in Adjusted Consolidated Working Capital from the first day to
\nthe last day of such period.<\/p>\n
“Excess Cash Payment Date” means the date occurring 90 days after the
\nlast day of each fiscal year of Holdings (beginning with its fiscal year ending
\non December 31, 1998).<\/p>\n
“Excess Cash Payment Period” means, with respect to the repayment
\nrequired on each Excess Cash Payment Date, the immediately preceding fiscal year
\nof Holdings.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended.<\/p>\n
“Existing Investors” means U.S. Equity Partners, L.P., U.S. Equity
\nPartners (Offshore), L.P. and\/or other Affiliates of Wasserstein.<\/p>\n
-13-<\/p>\n
“Existing Letter of Credit” has the meaning specified in the definition
\nof Issuing Bank.<\/p>\n
“Federal Funds Rate” means, for any day, the rate set forth in the
\nweekly statistical release designated as H.15(519), or any successor
\npublication, published by the Federal Reserve Board (including any such
\nsuccessor, “H.15(519)”) for such day opposite the caption “Federal Funds
\n(Effective)”. If on any relevant day the appropriate rate for such day is not
\nyet published in H.15(519), the rate for such day will be the arithmetic mean of
\nthe rates for the last transaction in overnight Federal funds arranged prior to
\n9:00 a.m. (New York City time) on that day by each of three leading brokers of
\nFederal funds transactions in New York City selected by the Administrative
\nAgent.<\/p>\n
“Federal Reserve Board” means the Board of Governors of the Federal
\nReserve System or any successor thereto.<\/p>\n
“First Adjustment Date” has the meaning specified in the definition of
\nthe term “Adjustment Date”.<\/p>\n
“Foreign Subsidiary” means each Subsidiary of Holdings which is not a
\nDomestic Subsidiary.<\/p>\n
“Form 4224” has the meaning specified in Section 4.01(f).<\/p>\n
“Form 1001” has the meaning specified in Section 4.01(f).<\/p>\n
“Form W-8” has the meaning specified in Section 4.01(f).<\/p>\n
“GAAP” means generally accepted accounting principles set forth from
\ntime to time in the opinions and pronouncements of the Accounting Principles
\nBoard and the American Institute of Certified Public Accountants and statements
\nand pronouncements of the Financial Accounting Standards Board (or agencies with
\nsimilar functions of comparable stature and authority within the accounting
\nprofession), or in such other statements by such other entity as may be in
\ngeneral use by significant segments of the U.S. accounting profession, which are
\napplicable to the circumstances as of the date of determination.<\/p>\n
“Governmental Authority” means any nation or government, any state or
\nother political subdivision thereof, any central bank (or similar monetary or
\nregulatory authority) thereof, and any entity exercising executive, legislative,
\njudicial, regulatory or administrative functions of or pertaining to government
\nand including, in the case of any Bank that is an insurance company, the
\nNational Association of Insurance Commissioners.<\/p>\n
“Guaranteed Creditors” means and includes each of the Administrative
\nAgent, the Collateral Agent, the Issuing Banks, the Banks and, in the case of
\nany Interest Rate Protection Agreements or Other Hedging Agreements, also any
\nAffiliate of a Bank which has entered into an Interest Rate Protection Agreement
\nor Other Hedging Agreement (even if such Bank subsequently ceases to be a Bank
\nunder this Agreement for any reason).<\/p>\n
-14-<\/p>\n
“Guaranteed Obligations” means (i) the full and prompt payment when due
\n(whether at the stated maturity, by acceleration or otherwise) of the principal
\nand interest on each note issued by, and Revolving Loans made to, the Borrower
\nunder this Agreement and all reimbursement obligations and unpaid drawings with
\nrespect to Letters of Credit, together with all the other obligations (including
\nobligations which, but for the automatic stay under Section 362(a) of the
\nBankruptcy Code, would become due) and liabilities (including, without
\nlimitation, indemnities, fees and interest thereon) of the Borrower to the
\nBanks, the Administrative Agent, the Issuing Banks and the Collateral Agent now
\nexisting or hereafter incurred under, arising out of or in connection with this
\nAgreement or any other Loan Document and the due performance and compliance by
\nthe Borrower with all the terms, conditions and agreements contained in the Loan
\nDocuments and (ii) the full and prompt payment when due (whether at the stated
\nmaturity, by acceleration or otherwise) of all obligations (including
\nobligations which, but for the automatic stay under Section 362(a) of the
\nBankruptcy Code, would become due) of the Borrower owing under any Interest Rate
\nProtection Agreement or Other Hedging Agreement entered into by the Borrower
\nwith any Bank or any other Guaranteed Creditor so long as such Bank or affiliate
\nparticipates in such Interest Rate Protection Agreement or Other Hedging
\nAgreement, and their subsequent assigns, if any, whether now in existence or
\nhereafter arising, and the due performance and compliance with all terms,
\nconditions and agreements contained therein.<\/p>\n
“Guarantor” means Holdings and each Subsidiary Guarantor.<\/p>\n
“Guarantor Supplement” means a supplement to the Subsidiary Guaranty,
\nthe Pledge Agreement and the Security Agreement substantially in the form of
\nExhibit E, whereby a Subsidiary of the Borrower becomes a party to each such
\nLoan Document.<\/p>\n
“Guaranty” means the guaranty of Holdings pursuant to Article X and the
\nSubsidiary Guaranty.<\/p>\n
“Hazardous Material” means and includes (a) any asbestos,
\nurea-formaldehyde, PCBs or dioxins or other material composed of or containing
\nasbestos, PCBs or dioxins, (b) crude oil, any fraction thereof, and any
\npetroleum product, (c) any natural gas, natural gas liquids, liquefied natural
\ngas or other natural gas product or synthetic gas, and (d) any hazardous or
\ntoxic waste, substance or material or pollutant or contaminant defined as such
\nin (or for purposes of) or that may result in the imposition of liability under
\nany “Environmental Law”, defined as the Comprehensive Environmental Response,
\nCompensation and Liability Act, any so-called “Superfund”, or any other
\napplicable Federal, state, local or other statute, law, ordinance, code, rule,
\nregulation, order or decree, as now or at any time hereafter in effect,
\nregulating, relating to, or imposing liability concerning the environment, the
\nimpact of the environment on human health, or any hazardous or toxic waste,
\nsubstance or material or pollutant or contaminant.<\/p>\n
“Holdings” has the meaning specified in the preamble hereto.<\/p>\n
“Holdings Common Stock” has the meaning specified in Section 6.22.<\/p>\n
-15-<\/p>\n
“Holdings Senior Discount Note Documents” means the Holdings Senior
\nDiscount Note Indenture, the Holdings Senior Discount Notes and all other
\ndocuments and agreements executed and delivered pursuant to the Holdings Senior
\nDiscount Note Indenture.<\/p>\n
“Holdings Senior Discount Note Exchange Offer” means the exchange offer
\nfor the Holdings Senior Discount Notes pursuant to the applicable Holdings
\nSenior Discount Note Documents for new Holdings Senior Discount Notes which have
\nbeen registered under the Securities Act of 1933, as amended.<\/p>\n
“Holdings Senior Discount Note Indenture” means the Indenture, dated as
\nof December 22, 1997, between Holdings and The Bank of New York, as trustee, as
\namended, modified or supplemented from time to time in accordance with the terms
\nhereof and thereof.<\/p>\n
“Holdings Senior Discount Notes” means Holdings 12-1\/4% senior discount
\nnotes due 2008.<\/p>\n
“Indebtedness” of any Person means, without duplication, (a) all
\nindebtedness for borrowed money; (b) all obligations issued, undertaken or
\nassumed as the deferred purchase price of property or services (other than
\nordinary course purchase price adjustments); (c) all reimbursement or payment
\nobligations with respect to letters of credit or non-contingent reimbursement or
\npayment obligations with respect to bankers’ acceptances and similar documents;
\n(d) all obligations evidenced by notes, bonds, debentures or similar
\ninstruments, including obligations so evidenced incurred in connection with the
\nacquisition of property, assets or businesses; (e) all indebtedness created or
\narising under any conditional sale or other title retention agreement or sales
\nof accounts receivable, in any such case with respect to property acquired by
\nthe Person (even though the rights and remedies of the seller or bank under such
\nagreement in the event of default are limited to repossession or sale of such
\nproperty); (f) all Capital Lease Obligations; (g) all net obligations with
\nrespect to Interest Rate Protection Agreements and Other Hedging Agreements; (h)
\nall indebtedness referred to in clauses (a) through (g) above and clause (i)
\nbelow secured by (or for which the holder of such Indebtedness has an existing
\nright, contingent or otherwise, to be secured by) any Lien upon or in property
\n(including accounts and contract rights) owned by such Person, even though such
\nPerson has not assumed or become liable for the payment of such Indebtedness,
\nvalued, in the case of Indebtedness not assumed, at the lesser of the amount of
\nsuch obligation and the fair market value of the encumbered property or asset;
\nand (i) all Contingent Obligations. Notwithstanding the foregoing, Indebtedness
\nshall not include trade payables and accrued expenses incurred by any Person in
\naccordance with customary practices and in the ordinary course of business of
\nsuch Person.<\/p>\n
“Indemnified Liabilities” has the meaning provided in Section 12.05.<\/p>\n
“Indemnified Person” has the meaning provided in Section 12.05.<\/p>\n
“Insolvency Proceeding” means (a) any case, action or proceeding before
\nany court or other Governmental Authority relating to bankruptcy,
\nreorganization, insolvency, liquidation, receivership, dissolution, winding-up
\nor relief of debtors or similar proceedings, or <\/p>\n
-16-<\/p>\n
(b) any general assignment for the benefit of creditors, composition,
\nmarshalling of assets for creditors, or other, similar arrangement in respect of
\nits creditors generally; in each case undertaken under U.S. Federal, State or
\nforeign law, including the Bankruptcy Code.<\/p>\n
“Intercompany Loan” has the meaning provided in Section 8.05(xi).<\/p>\n
“Intercompany Note” means a promissory note in the form of Exhibit L.<\/p>\n
“Interest Payment Date” means, (a) with respect to any Base Rate Loan,
\nthe last day of the last calendar month of each calendar quarter and the
\nRevolving Termination Date, and (b) with respect to any Eurodollar Loan, the
\nlast day of each Interest Period applicable to such Eurodollar Loan and the date
\nsuch Eurodollar Loan is repaid or prepaid; provided, however, that if any
\nInterest Period for any Eurodollar Loan exceeds three months, then also the date
\nwhich falls three months after the beginning of such Interest Period and, if
\napplicable, at three month intervals thereafter shall also be an “Interest
\nPayment Date”.<\/p>\n
“Interest Period” means, in relation to any Eurodollar Loan, the period
\ncommencing on the applicable Borrowing Date or any Conversion Date or
\nContinuation Date with respect thereto and ending on the date one, two, three or
\nsix months thereafter, as selected or deemed selected by the Borrower in its
\nNotice of Borrowing or Notice of Conversion\/Continuation, provided that:<\/p>\n
(i) if any Interest Period would otherwise end on a day which is not a
\nBusiness Day, such Interest Period shall be extended to the next succeeding
\nBusiness Day unless the result of such extension would be to carry such Interest
\nPeriod into another calendar month, in which event such Interest Period shall
\nend on the immediately preceding Business Day;<\/p>\n
(ii) any Interest Period that begins on the last Business Day of a
\ncalendar month (or on a day for which there is no numerically corresponding day
\nin the calendar month at the end of such Interest Period) shall end on the last
\nBusiness Day of the calendar month which is one, two, three or six months, as
\nthe case may be, after the calendar month in which such Interest Period began;
\nand<\/p>\n
(iii) no Interest Period shall extend beyond the Revolving Termination
\nDate.<\/p>\n
“Interest Rate Protection Agreement” means an interest rate swap, cap,
\ncollar or similar arrangement entered into to hedge interest rate risk (and not
\nfor speculative purposes).<\/p>\n
“Investment” has the meaning provided in Section 8.05.<\/p>\n
“Issuing Bank” means (i) Bank of America or any Affiliate thereof in
\nits capacity as issuer of one or more Letters of Credit hereunder and (ii)
\nBankBoston, N.A. but solely in respect of the Standby Letter of Credit in the
\namount of $533,217 issued for the benefit of 345 Park Avenue South, L.L.C., and
\nexpiring on December 1, 1998 (the “Existing Letter of Credit”). Upon the
\ntermination of the Existing Letter of Credit and the payment of all amounts (if
\nany) owing in respect thereof, BankBoston, N.A. shall cease to be an Issuing
\nBank hereunder.<\/p>\n
-17-<\/p>\n
“Lending Office” means, with respect to any Bank, the office or offices
\nof such Bank specified as its “Lending Office”, “Domestic Lending Office” or
\n“Eurodollar Lending Office”, as the case may be, on Schedule 1.01(a), or such
\nother office or offices of the Bank as it may from time to time notify the
\nBorrower and the Agent.<\/p>\n
“Letter of Credit” means any letter of credit issued by the Issuing
\nBank pursuant to Article III.<\/p>\n
“Letter of Credit Amendment Application” means an application form for
\namendment of outstanding standby or commercial documentary letters of credit as
\nshall at any time be in use by the respective Issuing Bank, as such Issuing Bank
\nshall request.<\/p>\n
“Letter of Credit Application” means an application form for issuances
\nof standby or commercial documentary letters of credit as shall at any time be
\nin use at the respective Issuing Bank, as such Issuing Bank shall request.<\/p>\n
“Letter of Credit Borrowing” means an extension of credit resulting
\nfrom a drawing under any Letter of Credit which shall not have been reimbursed
\non or before the Business Day following the respective Disbursement Date when
\nmade nor converted into a Borrowing of Revolving Loans under Section 3.03(b).<\/p>\n
“Letter of Credit Commitment” means the aggregate commitment of the
\nIssuing Banks to issue Letters of Credit, the Letter of Credit Obligations in
\nrespect thereof not to exceed in aggregate amount on any date the lesser of (i)
\nthe Aggregate Revolving Commitment on such date and (ii) $2,500,000.<\/p>\n
“Letter of Credit Obligations” means at any time the sum of (a) the
\naggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the
\namount of all outstanding Letter of Credit Borrowings.<\/p>\n
“Letter of Credit Related Documents” means the Letters of Credit, the
\nLetter of Credit Applications, the Letter of Credit Amendment Applications and
\nany other document relating to any Letter of Credit, including any of the
\nrespective Issuing Bank’s standard form documents for letter of credit
\nissuances.<\/p>\n
“Level I” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
“Level II” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
“Level III” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
“Level IV” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
“Level V” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
“Level VI” has the meaning specified in Section 2.09(a)(ii).<\/p>\n
-18-<\/p>\n
“Lien” means any interest in any real or personal property or fixture
\nwhich secures payment or performance of any obligation and shall include any
\nmortgage, lien, pledge, encumbrance, charge or other security interest of any
\nkind, whether arising under a Security Instrument or as a matter of law,
\njudicial process or otherwise, including the retained security title of a
\nconditional vendor or lessor.<\/p>\n
“Loan Documents” means this Agreement (including the guaranty of
\nHoldings set forth in Article X), each Collateral Document and all other
\nagreements, instruments, notes, certificates or other documents evidencing,
\nguaranteeing or securing the Revolving Loans, Letter of Credit Borrowings or the
\nother obligations of Holdings, the Borrower or any Subsidiary Guarantor
\nhereunder or under any Collateral Document.<\/p>\n
“Margin Stock” means “margin stock” as such term is defined in
\nRegulation G, T, U or X of the Federal Reserve Board.<\/p>\n
“Material Adverse Effect” means, relative to any occurrence of whatever
\nnature (including any adverse determination in any litigation, arbitration or
\ngovernmental investigation or proceeding), a material adverse effect on:<\/p>\n
(a) the operations, business, assets, properties, liabilities or
\ncondition (financial or otherwise) of the Borrower or of Holdings and its
\nSubsidiaries taken as a whole; or<\/p>\n
(b) the rights and remedies of the Administrative Agent, the Collateral
\nAgent and the Banks under this Agreement or under any other Loan Document.<\/p>\n
“Measurement Period” means (i) at any time on or prior to September 30,
\n1998 for purposes of determining compliance with Sections 8.07 and 8.08, the
\nperiod from January 1, 1998 through the last day of Holdings’ fiscal quarter
\nthen last ended (taken as one accounting period) and (ii) at any time thereafter
\nand for all other purposes of this Agreement, each period of four consecutive
\nfiscal quarters of Holdings (taken as one accounting period).<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc.<\/p>\n
“Net Debt Proceeds” means, with respect to any incurrence of
\nIndebtedness for borrowed money, the cash proceeds (net of underwriting
\ndiscounts and commissions and other reasonable costs associated therewith)
\nreceived by the respective Person from the respective incurrence of such
\nIndebtedness for borrowed money.<\/p>\n
“Net Insurance Proceeds” means, with respect to any Recovery Event, the
\ncash proceeds (net of reasonable costs and taxes incurred in connection with
\nsuch Recovery Event) received by the respective Person in connection with the
\nrespective Recovery Event.<\/p>\n
“Net Sale Proceeds” means, in connection with any Asset Sale, the cash
\nproceeds (including any cash payments received by way of deferred payment
\npursuant to a promissory note, receivable or otherwise, but only as and when
\nreceived in cash) of such Asset Sale net of (i) reasonable transaction costs
\n(including any underwriting, brokerage or other customary selling <\/p>\n
-19-<\/p>\n
commissions and reasonable legal, advisory and other fees and expenses,
\nincluding title and recording expenses, associated therewith actually incurred),
\n(ii) required debt payments (other than pursuant hereto), (iii) taxes estimated
\nto be paid as a result of such Asset Sale and (iv) any portion of such cash
\nproceeds which Holdings determines in good faith should be reserved for
\npost-closing adjustments or liabilities (to the extent Holdings delivers to the
\nBanks a certificate signed by a Responsible Officer of Holdings as to such
\ndetermination).<\/p>\n
“NLP” means National Law Publishing Company, Inc., a Delaware
\ncorporation.<\/p>\n
“Notice of Borrowing” means a notice given by the Borrower to the
\nAdministrative Agent pursuant to Section 2.03(a), in substantially the form of
\nExhibit A.<\/p>\n
“Notice of Conversion\/Continuation” means a notice given by the
\nBorrower to the Administrative Agent pursuant to Section 2.04(b), in
\nsubstantially the form of Exhibit B.<\/p>\n
“Obligations” means all Revolving Loans, Letter of Credit Borrowings
\nand other indebtedness, advances, debts, liabilities, obligations, indemnities,
\nexpenses (including, without limitation, Attorney Costs), covenants and duties,
\nof any kind or nature, owing by Holdings, the Borrower or any Subsidiary
\nGuarantor to any Bank, the Administrative Agent, the Collateral Agent or any
\nIssuing Banks in connection with this Agreement or any other Loan Document, in
\neach case whether direct or indirect, absolute or contingent, due or to become
\ndue, now existing or hereafter arising, and however acquired (including those
\nacquired by assignment) or arising and whether or not for the payment of money
\nor evidenced by any note, guarantee or other instrument.<\/p>\n
“OECD” means the Organization for Economic Cooperation and Development.<\/p>\n
“OLD ALM” means American Lawyer Media, L.P., the previous owner of the
\nassets acquired by Holdings in the ALM Acquisition.<\/p>\n
“Originating Bank” has the meaning provided in Section 12.07(d).<\/p>\n
“Other Hedging Agreement” means any foreign exchange contracts,
\ncurrency swap agreements, commodity agreements or other similar agreements or
\narrangements designed to protect against the fluctuations in currency or
\ncommodity values.<\/p>\n
“Other Taxes” has the meaning specified in Section 4.01(b).<\/p>\n
“Participant” has the meaning specified in Section 12.07(d).<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation established
\npursuant to Section 4002 of ERISA, or any successor thereto.<\/p>\n
“Permitted Acquisition” has the meaning specified in Section 8.02(ix).<\/p>\n
“Permitted Holders” means Wasserstein and its Affiliates.<\/p>\n
-20-<\/p>\n
“Permitted Liens” has the meaning provided in Section 8.01.<\/p>\n
“Person” means any natural person, corporation, firm, trust,
\npartnership, limited liability company, business trust, association, government,
\ngovernmental agency or authority, or any other entity, whether acting in an
\nindividual, fiduciary, or other capacity.<\/p>\n
“Plan” means any pension plan as defined in Section 3(2) of ERISA,
\nwhich is maintained or contributed to by (or to which there is an obligation to
\ncontribute of) Holdings or a Subsidiary of Holdings or an ERISA Affiliate, and
\neach such plan for the five year period immediately following the latest date on
\nwhich Holdings or a Subsidiary of Holdings or an ERISA Affiliate maintained,
\ncontributed to or had an obligation to contribute to such plan.<\/p>\n
“Pledge Agreement” means the Pledge Agreement in the form of Exhibit C,
\nas amended, modified or supplemented from time to time in accordance with the
\nterms thereof and hereof.<\/p>\n
“Pledged Securities” has the meaning specified in the Pledge Agreement.<\/p>\n
“Pro Forma Balance Sheet” means the pro forma unaudited consolidated
\nbalance sheet of Holdings and its Subsidiaries as of December 31, 1997 after
\ngiving effect to the Transaction and the financing therefor, which pro forma
\nconsolidated balance sheet has been prepared in accordance with GAAP.<\/p>\n
“Projections” means the projections prepared by Holdings, dated January
\n30, 1998 and furnished to the Banks prior to the Closing Date.<\/p>\n
“Qualified Holdings Preferred Stock” means any preferred stock of
\nHoldings so long as the terms of any such preferred stock (i) do not contain any
\nmandatory put, redemption, repayment, sinking fund or other similar provision,
\n(ii) do not require the cash payment of dividends, (iii) do not contain any
\ncovenants, (iv) do not grant the holders thereof any voting rights except for
\n(x) voting rights required to be granted to such holders under applicable law
\nand (y) limited customary voting rights on fundamental matters such as mergers,
\nconsolidations, sales of all or substantially all of the assets of Holdings, or
\nliquidations involving Holdings, and (v) are otherwise reasonably satisfactory
\nto Bank of America (or any successor Administrative Agent) and the Syndication
\nAgent.<\/p>\n
“Recovery Event” means the receipt by Holdings or any of its
\nSubsidiaries of any cash insurance proceeds or condemnation awards payable by
\nreason of theft, loss, physical destruction, damage, taking or any other similar
\nevent with respect to any property or assets of Holdings or any of its
\nSubsidiaries.<\/p>\n
“Reference Rate” means the rate of interest publicly announced from
\ntime to time by Bank of America in San Francisco as its “reference rate”. It is
\na rate set by Bank of America based upon various factors, including Bank of
\nAmerica’s costs and desired return, general economic conditions and other
\nfactors, and is used as a reference point for pricing some loans, which may be
\npriced at, above or below such announced rate. Any change in the Reference Rate<\/p>\n
-21-<\/p>\n
announced by Bank of America shall take effect at the opening of business on the
\nday specified in the public announcement of such change.<\/p>\n
“Register” has the meaning specified in Section 2.02.<\/p>\n
“Regulation D” means Regulation D of the Federal Reserve Board as from
\ntime to time in effect and any successor to all or a portion thereof
\nestablishing reserve requirements.<\/p>\n
“Replaced Bank” has the meaning specified in Section 4.08(b).<\/p>\n
“Replacement Bank” has the meaning specified in Section 4.08(b).<\/p>\n
“Reportable Event” means, an event described in Section 4043(c) of
\nERISA with respect to a Plan that is subject to Title IV of ERISA other than
\nthose events as to which the 30-day notice period is waived under subsection
\n.22, .23, .25, .27 or .28 of PBGC Regulations issued under Section 4043 of
\nERISA.<\/p>\n
“Required Banks” means Banks, the sum of whose Revolving Commitments
\n(or after the termination thereof, outstanding Revolving Loans and Revolving
\nCommitment Percentages of Letter of Credit Obligations) represent at least 51%
\nof the Aggregate Revolving Commitment (or after the termination thereof, the sum
\nof the then total outstanding Revolving Loans and the aggregate Revolving
\nCommitment Percentages of the total outstanding Letter of Credit Obligations at
\nsuch time).<\/p>\n
“Requirement of Law” means, as to any Person, any law (statutory or
\ncommon, including, without limitation, any Environmental Law and ERISA), treaty,
\nrule or regulation or determination of a court or of a Governmental Authority,
\nin each case applicable to or binding upon such Person or any of its property or
\nto which such Person or any of its property is subject.<\/p>\n
“Responsible Officer” means, for Holdings, the Borrower or any
\nSubsidiary thereof, its chairman of the board, its chief executive officer, its
\npresident, any of its executive vice presidents, its chief financial officer,
\nbut in any event, with respect to financial matters, the president or the chief
\nfinancial officer of Holdings.<\/p>\n
“Revolving Commitment” means, for each Bank, the amount set forth
\nopposite such Bank’s name in Schedule 1.01(b) directly below the column entitled
\n“Revolving Commitment,” as such amount may be modified from time to time
\npursuant to the terms hereof.<\/p>\n
“Revolving Commitment Percentage” of any Bank at any time means a
\nfraction (expressed as a percentage) the numerator of which is the Revolving
\nCommitment of such Bank at such time and the denominator of which is the
\nAggregate Revolving Commitment at such time, provided that if the Revolving
\nCommitment Percentage of any Bank is to be determined after the Aggregate
\nRevolving Commitment has been terminated, then the Revolving Commitment
\nPercentages of the Banks shall be determined immediately prior (and without
\ngiving effect) to such termination.<\/p>\n
-22-<\/p>\n
“Revolving Loan” means a loan by a Bank to the Borrower under Section
\n2.01, which may be a Eurodollar Loan or a Base Rate Loan.<\/p>\n
“Revolving Termination Date” means the earlier to occur of (a) March
\n31, 2003 and (b) the date on which the Revolving Commitments shall terminate in
\naccordance with the provisions hereof.<\/p>\n
“S&P” means Standard & Poor’s Ratings Service, a division of McGraw
\nHill, Inc.<\/p>\n
“Section 4.01(f)(i) Certificate” has the meaning specified in Section
\n4.01(f).<\/p>\n
“Security Agreement” means the Security Agreement in the form of
\nExhibit F, as amended, modified or supplemented from time to time in accordance
\nwith the terms thereof and hereof.<\/p>\n
“Security Instrument” means any security agreement, chattel mortgage,
\nassignment, pledge agreement, financing or similar statement or notice,
\ncontinuation statement, other agreement or instrument, or amendment or
\nsupplement to any thereof, providing for, evidencing or perfecting any security
\ninterest.<\/p>\n
“Significant Subsidiary” has the meaning set forth in the Holdings
\nSenior Discount Note Indenture or in the Borrower Senior Note Indenture.<\/p>\n
“Specified Default” means (i) any Default under Section 9.01(a),
\n9.01(f) or 9.01(g), and (ii) any Event of Default.<\/p>\n
“Standby Letter of Credit” has the meaning specified in Section
\n3.01(a).<\/p>\n
“Subsidiary” of a Person means any corporation, association,
\npartnership or other business entity of which more than 50% of the voting stock
\nor other voting equity interests (in the case of Persons other than
\ncorporations) is owned or controlled directly or indirectly by such Person, or
\none or more of the Subsidiaries of the Person, or a combination thereof.<\/p>\n
“Subsidiary Guarantor” means each of the Domestic Subsidiaries of the
\nBorrower listed on Schedule 1.01(c) and each other Domestic Subsidiary of the
\nBorrower (and, to the extent Section 7.12 is operative, each Foreign Subsidiary
\nof the Borrower) that hereafter executes and delivers a Guarantor Supplement.<\/p>\n
“Subsidiary Guaranty” means the Guaranty in the form of Exhibit E, as
\namended, modified or supplemented from time to time in accordance with the terms
\nhereof and thereof.<\/p>\n
“Syndication Agent” means BancBoston Securities Inc.<\/p>\n
“Taxes” has the meaning specified in Section 4.01(a).<\/p>\n
“Total Leverage Ratio Certificate” means a certificate duly executed by
\na Responsible of Holdings, substantially in the form of Exhibit G (with such
\nchanges thereto as <\/p>\n
-23-<\/p>\n
may be agreed upon from time to time by the Administrative Agent and Holdings),
\nand including therein, among other things, calculations supporting the
\ninformation contained therein.<\/p>\n
“Trade Letter of Credit” has the meaning specified in Section 3.01(a).<\/p>\n
“Transaction” means, collectively, (i) the Acquisition and the related
\nrefinancing of certain indebtedness of the Borrower, NLP and their Subsidiaries,
\n(ii) the issuance of the Borrower Senior Notes as part of the Acquisition, (iii)
\nthe issuance of the Holdings Senior Discount Notes as part of the Acquisition,
\n(iv) the $73,500,000 in equity contributions received by Holdings as part of the
\nAcquisition and (v) the entering into of this Agreement and the occurrence of
\nthe Closing Date.<\/p>\n
“Transferee” has the meaning specified in Section 12.08.<\/p>\n
“UCC” means the Uniform Commercial Code as from time to time in effect
\nin the relevant jurisdiction.<\/p>\n
“Unfunded Current Liability” of any Plan means the amount, if any, by
\nwhich the actuarial present value of the accumulated plan benefits under the
\nPlan as of the close of its most recent plan year, determined in accordance with
\nactuarial assumptions at such time consistent with Statement of Financial
\nAccounting Standards No. 87, exceeds the market value of the assets allocable
\nthereto.<\/p>\n
“United States” and “U.S.” each means the United States of America.<\/p>\n
“Voting Stock” of any Person as of any date means the capital stock of
\nsuch Person that is at the time entitled to vote in the election of the Board of
\nDirectors of such Person.<\/p>\n
“Wasserstein” means Wasserstein Perella Group Inc., a Delaware
\ncorporation.<\/p>\n
“WP Management” means WP Management Partners, L.L.C., a Delaware
\nlimited liability company.<\/p>\n
“Wholly-Owned Subsidiary” means, as to any Person, (i) any corporation
\n100% of whose capital stock (other than director’s or other qualifying shares)
\nis at the time owned by such Person and\/or one or more Wholly-Owned Subsidiaries
\nof such Person and (ii) any partnership, association or other entity in which
\nsuch Person and\/or one or more Wholly-Owned Subsidiaries of such Person has a
\n100% equity interest at such time.<\/p>\n
1.02 Other Definitional Provisions.<\/p>\n
(a) Defined Terms. Unless otherwise specified herein or therein, all
\nterms defined in this Agreement shall have such defined meanings when used in
\nany certificate or other document made or delivered pursuant hereto. The meaning
\nof defined terms shall be equally applicable to the singular and plural forms of
\nthe defined terms. Terms (including uncapitalized terms) not otherwise defined
\nherein and that are defined in the UCC shall have the meanings therein
\ndescribed.<\/p>\n
-24-<\/p>\n
(b) The Agreement. The words “hereof”, “herein”, “hereunder” and words
\nof similar import when used in this Agreement shall refer to this Agreement as a
\nwhole and not to any particular provision of this Agreement; and section,
\nsubsection, schedule and exhibit references are to this Agreement unless
\notherwise specified.<\/p>\n
(c) Certain Common Terms.<\/p>\n
(i) The term “documents” includes any and all instruments,
\n documents, agreements, certificates, indentures, notices and other
\n writings, however evidenced.<\/p>\n
i (ii) The terms “including” or “include”
\n are not limiting and mean “including without limitation” or “include
\n without limitation”.<\/p>\n
(d) Performance; Time. Subject to the definition of
\nthe term “Interest Period” in Section 1.01, whenever any performance obligation
\nhereunder shall be stated to be due or required to be satisfied on a day other
\nthan a Business Day, such performance shall be made or satisfied on the next
\nsucceeding Business Day. In the computation of periods of time from a specified
\ndate to a later specified date, the word “from” means “from and including”; the
\nwords “to” and “until” each mean “to but excluding”; and the word “through”
\nmeans “to and including.” If any provision of this Agreement refers to any
\naction taken or to be taken by any Person, or which such Person is prohibited
\nfrom taking, such provision shall be interpreted to encompass any and all means,
\ndirect or indirect, of taking, or not taking, such action.<\/p>\n
(e) Contracts. Unless otherwise expressly provided
\nherein, references to agreements and other contractual instruments shall be
\ndeemed to include all subsequent amendments and other modifications thereto, but
\nonly to the extent such amendments and other modifications are not prohibited by
\nthe terms of any Loan Document.<\/p>\n
(f) Laws. References to any statute or regulation
\nare to be construed as including all statutory and regulatory provisions
\nconsolidating, amending or replacing such statute or regulation.<\/p>\n
1.03 Accounting Principles. Except as provided to the contrary herein,
\nall accounting terms used herein shall be interpreted in accordance with GAAP.
\nUnless the context otherwise clearly requires, all financial computations
\nrequired under this Agreement shall be made in accordance with generally
\naccepted accounting principles applied in a manner consistent with those in
\neffect on December 31, 1997.<\/p>\n
ARTICLE II.<\/p>\n
THE CREDIT FACILITIES<\/p>\n
2.01 Amounts and Terms of Commitments.<\/p>\n
-25-<\/p>\n
Each Bank severally agrees, on the terms and conditions
\n hereinafter set forth, to make Revolving Loans to the Borrower from
\n time to time on any Business Day during the period from the Closing
\n Date to the Revolving Termination Date, in an aggregate amount not to
\n exceed at any time outstanding the amount of such Bank’s Revolving
\n Commitment; provided, however, that, after giving effect to any
\n Borrowing, the aggregate principal amount of all outstanding Revolving
\n Loans plus the aggregate amount of all outstanding Letter of Credit
\n Obligations (exclusive of unpaid drawings under any Letter of Credit
\n which are repaid with the proceeds of, and simultaneously with the
\n incurrence of, the respective incurrence of Revolving Loans), shall not
\n exceed the Aggregate Revolving Commitment. Within such limits, and
\n subject to the other terms and conditions hereof, the Borrower may
\n borrow Revolving Loans under this Section 2.01, prepay pursuant to
\n Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01.<\/p>\n
2.02 Loan Accounts and Register; Notes.<\/p>\n
(a) The Revolving Loans made by, and the Revolving Commitments
\n of, each Bank shall be evidenced by one or more loan accounts
\n maintained by such Bank and the Register maintained by the
\n Administrative Agent in the ordinary course of business. The Register
\n maintained by the Administrative Agent shall, in the event of a
\n discrepancy between the entries in the Administrative Agent’s books and
\n any Bank’s books relating to such matters, be controlling and, absent
\n manifest error, shall be conclusive as to the amount of the Revolving
\n Loans made by the Banks to the Borrower, the interest and payments
\n thereon and any other amounts owing in respect of this Agreement. Any
\n failure to make a notation in the Register or any such loan account or
\n any error in doing so shall not limit or otherwise affect the
\n obligations of the Borrower hereunder to pay any amount owing with
\n respect to the Revolving Loans. The Borrower hereby designates the
\n Administrative Agent to serve as the Borrower’s agent, solely for
\n purposes of this Section 2.02, to maintain a register (the “Register”)
\n on which it will record the Revolving Commitments from time to time of
\n each of the Banks, the Revolving Loans made by each of the Banks and
\n each repayment in respect of the principal amount of the Revolving
\n Loans of each Bank. With respect to any Bank, the transfer of the
\n Revolving Commitments of such Bank and the rights to the principal of,
\n and interest on, any Revolving Loan made pursuant to such Revolving
\n Commitments shall not be effective until such transfer is recorded on
\n the Register maintained by the Administrative Agent with respect to
\n ownership of such Revolving Commitments and Revolving Loans and prior
\n to such recordation all amounts owing to the transferor with respect to
\n such Revolving Commitments and Revolving Loans shall remain owing to
\n the transferor. The registration of assignment or transfer of all or
\n part of any Revolving Commitments and Revolving Loans shall be recorded
\n by the Administrative Agent on the Register only upon the acceptance by
\n the Administrative Agent of a properly executed and delivered
\n Assignment and Acceptance pursuant to Section 12.07(a). The Borrower
\n agrees to indemnify the Administrative Agent from and against any and
\n all losses, claims, damages and liabilities of whatsoever nature which
\n may be imposed on, asserted against or incurred by the Administrative
\n Agent in performing its duties under this Section 2.02.<\/p>\n
-26-<\/p>\n
(b) If requested by any Bank for purposes of Section 12.07(e),
\n the Borrower shall execute and deliver to such Bank (and deliver a copy
\n thereof to the Administrative Agent) one or more promissory notes
\n evidencing the Revolving Loans owing to such Bank pursuant to this
\n Agreement. Any such note shall be in a form prescribed by the Borrower
\n and the Administrative Agent and shall be entitled to all of the rights
\n and benefits of this Agreement and the other Loan Documents.<\/p>\n
2.03 Procedure for Borrowing.<\/p>\n
(a) Each Borrowing of Revolving Loans (other than a Borrowing
\n of Revolving Loans pursuant to Section 3.03(b)) shall be made upon the
\n Borrower’s irrevocable written notice delivered to the Administrative
\n Agent in accordance with Section 12.02 in the form of a Notice of
\n Borrowing (which notice must be received by the Administrative Agent
\n (i) prior to 11:30 a.m. (New York City time) not less than three
\n Business Days prior to the requested Borrowing Date, in the case of
\n Eurodollar Loans and (ii) prior to 11:30 a.m. (New York City time) on
\n the requested Borrowing Date, in the case of Base Rate Loans,
\n specifying:<\/p>\n
(A) the amount of the Borrowing, which shall be in an
\n aggregate minimum principal amount of $1,000,000 or any
\n multiple of $50,000 in excess thereof;<\/p>\n
(B) the requested Borrowing Date, which shall be a
\n Business Day;<\/p>\n
(C) whether the Borrowing is to be comprised of
\n Eurodollar Loans or Base Rate Loans; and<\/p>\n
(D) the duration of the Interest Period, if any,
\n applicable to such Revolving Loans included in such notice. If
\n the Notice of Borrowing shall fail to specify the duration of
\n the Interest Period for any Borrowing comprised of Eurodollar
\n Loans, such Interest Period shall be one month.<\/p>\n
(b) Upon receipt of the Notice of Borrowing, the
\n Administrative Agent will promptly notify each Bank of the contents
\n thereof and of the amount of such Bank’s Revolving Commitment
\n Percentage of the requested Borrowing.<\/p>\n
(c) Each Bank will make the amount of its Revolving Commitment
\n Percentage of each Borrowing available to the Administrative Agent for
\n the account of the Borrower at the Administrative Agent’s Payment
\n Office by 2:00 p.m. (New York City time) on the Borrowing Date
\n requested by the Borrower in funds immediately available to the
\n Administrative Agent. Unless any applicable condition of Article V has
\n not been satisfied, the proceeds of all such Revolving Loans (other
\n than Revolving Loans made pursuant to Section 3.03(b)) will then be
\n made available to the Borrower by the Administrative Agent by wire
\n transfer in accordance with written instructions provided to the
\n Administrative Agent by the Borrower.<\/p>\n
-27-<\/p>\n
(d) Upon the occurrence and during the continuance of any
\n Specified Default, the Borrower shall not have the right to elect (and
\n shall not elect) to have a Revolving Loan be made as a Eurodollar Loan.<\/p>\n
(e) After giving effect to any Borrowing, there shall not be
\n more than eight different Interest Periods in effect in respect of all
\n Revolving Loans.<\/p>\n
2.04 Conversion and Continuation Elections for Revolving
\n Borrowings.<\/p>\n
(a) The Borrower may upon irrevocable written notice to the
\n Administrative Agent in accordance with paragraph (b) below:<\/p>\n
(i) elect to convert on any Business Day, any Base
\n Rate Loans (or any part thereof in an amount of not less than
\n $1,000,000 or an integral multiple of $50,000 in excess
\n thereof) into Eurodollar Loans;<\/p>\n
(ii) elect to convert on the last day of the Interest
\n Period with respect thereto, any Eurodollar Loans (or any part
\n thereof in an amount of not less than $1,000,000 or an
\n integral multiple of $50,000 in excess thereof) into Base Rate
\n Loans; or<\/p>\n
(iii) elect to continue on the last day of the
\n Interest Period with respect thereto, any Eurodollar Loans (or
\n any part thereof in an amount of not less than $1,000,000 or
\n an integral multiple of $50,000 in excess thereof);<\/p>\n
provided, however, (x) that if the aggregate amount of a Borrowing
\n comprised of Eurodollar Loans shall have been reduced, by payment,
\n prepayment or conversion of part thereof to be less than $1,000,000,
\n the Eurodollar Loans comprising such Borrowing shall automatically
\n convert into Base Rate Loans, and on and after such date the right of
\n the Borrower to continue such Loans as, and convert such Loans into,
\n Eurodollar Loans shall terminate and (y) Eurodollar Loans with Interest
\n Periods of more than one month may not be selected until the 90th day
\n after the Closing Date.<\/p>\n
(b) The Borrower shall deliver a Notice of Conversion\/Continuation in
\n accordance with Section 12.02 to be received by the Administrative
\n Agent not later than (i) 11:30 a.m. (New York City time) not less than
\n three Business Days in advance of the Conversion Date or Continuation
\n Date, if the Revolving Loans are to be converted into or continued as
\n Eurodollar Loans and (ii) no later than 11:30 a.m. (New York City time)
\n on the requested Conversion Date, if the Revolving Loans are to be
\n converted into Base Rate Loans, specifying:<\/p>\n
(A) the Revolving Loans to be converted or continued;<\/p>\n
(B) the proposed Conversion Date or Continuation Date
\n which shall be a Business Day;<\/p>\n
-28-<\/p>\n
(C) the aggregate principal amount of Revolving Loans
\n to be converted or continued;<\/p>\n
(D) the nature of the proposed conversion or
\n continuation; and<\/p>\n
(E) the duration of the requested Interest Period, if
\n applicable.<\/p>\n
(c) If upon the expiration of any Interest Period applicable
\n to Eurodollar Loans, the Borrower has failed to select timely a new
\n Interest Period or the Borrower is not permitted to elect a new
\n Interest Period, such Revolving Loans shall automatically convert into
\n Base Rate Loans.<\/p>\n
(d) Upon receipt of a Notice of Conversion\/ Continuation, the
\n Administrative Agent will promptly notify each Bank of the contents
\n thereof, or, if no timely notice is provided by the Borrower, the
\n Administrative Agent will promptly notify each such Bank of the details
\n of any automatic conversion. All conversions and continuations shall be
\n made pro rata according to the respective outstanding principal amounts
\n of the Revolving Loans with respect to which the notice was given.<\/p>\n
(e) Upon the occurrence and during the continuance of any
\n Specified Default, the Borrower shall not elect to have a Revolving
\n Loan converted into or continued as a Eurodollar Loan.<\/p>\n
(f) Notwithstanding any other provision contained in this
\n Agreement, after giving effect to any conversion or continuation of any
\n Revolving Loans, there shall not be more than eight different Interest
\n Periods in effect in respect of all Revolving Loans.<\/p>\n
2.05 Reduction and Termination of Commitments.<\/p>\n
(a) The Borrower may, upon not less than three Business Days’
\n prior notice to the Administrative Agent, terminate the Aggregate
\n Revolving Commitment (including the Letter of Credit Commitment) or
\n permanently reduce the Aggregate Revolving Commitment (including the
\n Letter of Credit Commitment) by an aggregate minimum amount of
\n $5,000,000 or any multiple of $100,000 in excess thereof; provided,
\n however, that no such reduction or termination shall be permitted if
\n after giving effect thereto and to any prepayment of the Revolving
\n Loans made on the effective date thereof, (i) the then outstanding
\n principal amount of the Revolving Loans plus the outstanding Letter of
\n Credit Obligations would exceed the Aggregate Revolving Commitment then
\n in effect or (ii) the aggregate amount of Letter of Credit Obligations
\n would exceed the Letter of Credit Commitment then in effect; and,
\n provided further, that once reduced in accordance with this Section
\n 2.05, the Aggregate Revolving Commitment (including the Letter of
\n Credit Commitment) may not be increased.<\/p>\n
(b) The Aggregate Revolving Commitment (and the Revolving
\n Commitment of each Bank) shall terminate in its entirety on April 15,
\n 1998 unless the Closing Date shall have occurred on or prior to such
\n date.<\/p>\n
-29-<\/p>\n
(c) The Aggregate Revolving Commitment (and the Revolving
\n Commitment of each Bank) shall terminate in its entirety on the
\n Revolving Termination Date.<\/p>\n
(d) The Aggregate Revolving Commitment (and the Revolving
\n Commitment of each Bank) shall terminate in its entirety on the date on
\n which a Change of Control occurs.<\/p>\n
(e) On each date upon which Holdings or any of its
\n Subsidiaries receives any proceeds from any incurrence by Holdings or
\n any of its Subsidiaries of Indebtedness for borrowed money (other than
\n Indebtedness for borrowed money permitted to be incurred under Section
\n 8.04 as in effect on the Closing Date), the Aggregate Revolving
\n Commitment shall be permanently reduced by an amount equal to 100% of
\n the Net Debt Proceeds of the respective incurrence of Indebtedness.
\n Nothing in this clause (e) shall be deemed to permit the issuance of
\n any Indebtedness not otherwise permitted under this Agreement.<\/p>\n
(f) On each date upon which Holdings or any of its
\n Subsidiaries receives any proceeds from any Asset Sale, the Aggregate
\n Revolving Commitment shall be permanently reduced by an amount equal to
\n 100% of the Net Sale Proceeds from such Asset Sale, provided that with
\n respect to no more than $5,000,000 in the aggregate of such Net Sale
\n Proceeds in any fiscal year of Holdings, such Net Sale Proceeds shall
\n not give rise to a reduction pursuant to this clause (f) to the extent
\n that no Default or Event of Default then exists and Holdings has
\n delivered a certificate of one of its Responsible Officers to the
\n Administrative Agent on or prior to such date stating that such Net
\n Sale Proceeds shall be used to purchase replacement assets used or to
\n be used in the Borrower’s or any of its Subsidiaries’ business within
\n 265 days following the date of such Asset Sale (which certificate shall
\n set forth the estimates of the proceeds to be so expended), and
\n provided further, that if all or any portion of such Net Sale Proceeds
\n are not so reinvested within such 265 day period (or such earlier date,
\n if any, as the Board of Directors of the Borrower determines not to so
\n reinvest such Net Sale Proceeds), the Aggregate Revolving Commitment
\n shall be permanently reduced on the last day of such period (or such
\n earlier date, as the case may be) by an amount equal to such remaining
\n portion. Nothing in this clause (f) shall be deemed to permit any Asset
\n Sale not otherwise permitted under this Agreement.<\/p>\n
(g) Within 10 days following each date upon which Holdings or
\n any of its Subsidiaries receives any proceeds from any Recovery Event,
\n the Aggregate Revolving Commitment shall be permanently reduced by an
\n amount equal to 100% of the Net Insurance Proceeds from such Recovery
\n Event, provided that so long as no Default or Event of Default then
\n exists and such proceeds from such Recovery Event do not exceed
\n $2,000,000, such proceeds shall not give rise to a reduction pursuant
\n to this clause (g) on such date to the extent that Holdings has
\n delivered a certificate of one of its Responsible Officers to the
\n Administrative Agent on or prior to such date stating that such
\n proceeds shall be used to replace or restore any properties or assets
\n in respect of which such proceeds were paid within 265 days following
\n the date of receipt of such proceeds (which <\/p>\n
-30-<\/p>\n
certificate shall set forth the estimates of the proceeds to be so
\n expended), and provided further, that (i) if the amount of such
\n proceeds exceeds $2,000,000, then the entire amount of such proceeds
\n and not just the portion in excess of $2,000,000 shall be applied as
\n provided above in this clause (g), and (ii) if all or any portion of
\n such proceeds are not contractually committed to be used within 180
\n days after the date of receipt of such proceeds and are not actually
\n used within 265 days after the date of receipt of such proceeds to
\n effect such restoration or replacement (or such earlier date, if any,
\n as the Board of Directors of the Borrower determines not to so reinvest
\n such Net Insurance Proceeds), the Aggregate Revolving Commitment shall
\n be permanently reduced on the last day of such 180-day or 265-day
\n period, as the case may be (or such earlier date, as the case may be),
\n by an amount equal to such remaining portion.<\/p>\n
(h) On each Excess Cash Payment Date, the Aggregate Revolving
\n Commitment shall be permanently reduced by an amount equal to the
\n Applicable Excess Cash Flow Percentage of the Excess Cash Flow for the
\n relevant Excess Cash Payment Period; provided, however, that no such
\n reduction pursuant to this clause (h) shall be required to the extent
\n that no Default or Event of Default then exists and the Consolidated
\n Total Leverage Ratio on such Excess Cash Payment Date (before giving
\n effect to any such reduction on such date) is less than 4.00:1.00 as
\n demonstrated in the Total Leverage Ratio Certificate delivered to the
\n Administrative Agent in accordance with Section 12.02 at such time.<\/p>\n
(i) Any reduction of the Aggregate Revolving Commitment and
\n the Letter of Credit Commitment pursuant to this Section 2.05 shall be
\n applied pro rata to each Bank’s Revolving Commitment in accordance with
\n such Bank’s Revolving Commitment Percentage. The amount of any such
\n reduction of the Aggregate Revolving Commitment shall not be applied to
\n the Letter of Credit Commitment unless otherwise specified by the
\n Borrower or required by the definition thereof. The Administrative
\n Agent shall promptly notify the Banks of any reduction or termination
\n of the Aggregate Revolving Commitment.<\/p>\n
2.06 Voluntary Prepayments.<\/p>\n
(a) The Borrower may, prior to 11:30 a.m. (New York City
\n time), upon at least three Business Days’ notice to the Administrative
\n Agent in the case of Eurodollar Loans, and prior to 11:30 a.m. (New
\n York City time), upon same day notice on any Business day in the case
\n of Base Rate Loans, ratably prepay Revolving Loans, in whole or in part
\n in amounts of $100,000 or an integral multiple of $50,000 in excess
\n thereof.<\/p>\n
(b) Any notice of prepayment delivered pursuant to this
\n Section 2.06 shall specify the date and amount of such prepayment, the
\n type of Revolving Loans to be prepaid, including whether such
\n prepayment is of Base Rate Loans or Eurodollar Loans or any combination
\n thereof. Each such notice shall be irrevocable by the Borrower and the
\n Administrative Agent will promptly notify each Bank thereof and of such
\n Bank’s Revolving Commitment Percentage of such prepayment. If such
\n notice is given by the <\/p>\n
-31-<\/p>\n
Borrower, the Borrower shall make such prepayment and the payment
\n amount specified in such notice shall be due and payable on the date
\n specified therein, together with accrued interest to each such date on
\n the amount prepaid and the amounts, if any, required pursuant to
\n Section 4.04; provided that interest shall be paid in connection with
\n any such prepayment of Base Rate Loans (other than a prepayment in
\n full) on the next occurring Interest Payment Date.<\/p>\n
2.07 Mandatory Prepayments.<\/p>\n
(a)(i) If on any date the aggregate unpaid principal amount of
\n outstanding Revolving Loans plus the outstanding Letter of Credit
\n Obligations (to the extent not Cash Collateralized pursuant to clause
\n (ii) below or as provided for in Section 3.07) exceeds the Aggregate
\n Revolving Commitment the Borrower shall immediately prepay the amount
\n of such excess.<\/p>\n
(ii) If on any date the aggregate amount of all Letter of
\n Credit Obligations shall exceed the Letter of Credit Commitment, the
\n Borrower shall Cash Collateralize on such date its obligations in
\n respect of Letters of Credit in an amount equal to the excess of the
\n Letter of Credit Obligations over the Letter of Credit Commitment.<\/p>\n
(b) The Borrower shall pay, together with each prepayment made
\n by the Borrower under this Section 2.07, accrued interest on the amount
\n prepaid and any amounts required pursuant to Section 4.04; provided
\n that interest shall be paid in connection with any such prepayment of
\n Base Rate Loans (other than a prepayment in full) on the next occurring
\n Interest Payment Date.<\/p>\n
(c) Any prepayments pursuant to this Section 2.07 made on a
\n day other than an Interest Payment Date for any Revolving Loan shall be
\n applied first to any Base Rate Loans then outstanding and then to
\n Eurodollar Loans with the shortest Interest Periods remaining.<\/p>\n
(d) The Borrower shall repay in full all outstanding Revolving
\n Loans on the date on which a Change of Control occurs.<\/p>\n
2.08 Repayment of Principal.<\/p>\n
The Borrower shall repay in full on the Revolving Termination Date the
\naggregate principal amount of the Revolving Loans outstanding on such date.<\/p>\n
2.09 Interest.<\/p>\n
(a) Each Revolving Loan shall bear interest on the outstanding
\n principal amount thereof from the Borrowing Date applicable thereto
\n until it becomes due at a rate per annum equal to the Base Rate or the
\n Eurodollar Rate, as the case may be, plus the Applicable Margin then in
\n effect as set forth below:<\/p>\n
-32-<\/p>\n
(i) for the period commencing on the Closing Date and ending
\n on the day immediately preceding the First Adjustment Date:<\/p>\n
\n\n Applicable Margin<\/p>\n
\n Base Rate 1.500%
\n Eurodollar Rate 2.500%<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
(ii) from and after the First Adjustment
\n Date, for each period beginning on an Adjustment Date to the next
\n succeeding Adjustment Date, the rate per annum for the relevant type of
\n Revolving Loan set forth below opposite the Consolidated Total Leverage
\n Ratio determined as at the end of the last fiscal quarter ended prior
\n to the first day of such period:<\/p>\n
\n\n Applicable Margin
\n Eurodollar Base
\n Rate Rate
\n —- —-<\/p>\n
\n Consolidated Total Leverage Ratio is less than 5.00 to 1.00 1.250% 0.250%
\n (“Level I”)
\n ———
\n Consolidated Total Leverage Ratio is less than 5.50 to 1.0 but 1.625% 0.625%
\n greater than or equal to 5.00 to 1.00 (“Level II”)
\n ——–
\n Consolidated Total Leverage Ratio is less than 6.00 to 1.00 but 1.875% 0.875%
\n greater than or equal to 5.50 to 1.00 (“Level III”)
\n ———
\n Consolidated Total Leverage Ratio is less than 6.50 to 1.00 but 2.125% 1.125%
\n greater than or equal to 6.00 to 1.00 (“Level IV”)
\n ——–
\n Consolidated Total Leverage Ratio is less than 7.00 to 1.00 but 2.250% 1.250%
\n greater than or equal to 6.50 to 1.00 (“Level V”)
\n ——-
\n Consolidated Total Leverage Ratio is greater than or equal to 2.500% 1.500%
\n 7.00 to 1.00 (“Level VI”)
\n ——–<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
(iii) If by the last day for determining
\n any Adjustment Date, Holdings has failed to deliver a Total Leverage
\n Ratio Certificate as at the end of the fiscal quarter ended immediately
\n prior to such Adjustment Date, interest for the next succeeding period
\n commencing on such Adjustment Date to the next succeeding Adjustment
\n Date shall be computed as if the Consolidated Total Leverage Ratio were
\n at Level VI; provided, however, to the extent that Holdings thereafter
\n delivers a Total Leverage Ratio Certificate in respect of such
\n preceding fiscal <\/p>\n
-33-<\/p>\n
quarter during such succeeding period, interest for the remainder of
\n such succeeding period shall be computed at the rate prescribed by
\n Section 2.09(a)(ii). In addition, at any time that a Specified Default
\n shall exist, the Applicable Margin shall be computed as if the
\n Consolidated Total Leverage Ratio were at Level VI.<\/p>\n
(b) Except as provided in the last sentence of Section 2.09(a)(iii) or
\nin the proviso to the first sentence of Section 2.09(a)(iii), any change in the
\nApplicable Margin due to a change in the Consolidated Total Leverage Ratio shall
\nbe effective on the applicable Adjustment Date and shall apply to all Revolving
\nLoans that are outstanding at any time during the period commencing on such
\nAdjustment Date and ending on the date immediately preceding the next Adjustment
\nDate.<\/p>\n
(c) Interest on each Revolving Loan shall be paid in arrears on each
\nInterest Payment Date. Interest shall also be paid on the date of any prepayment
\nof any portion of Revolving Loans (excluding Base Rate Loans) for the portion of
\nsuch Revolving Loans so prepaid and upon payment (including prepayment) of any
\nRevolving Loans (including Base Rate Loans) in full. In addition, interest which
\naccrues under Section 2.09(d) also shall be paid on demand by the Administrative
\nAgent or the Required Banks.<\/p>\n
(d) If any amount of principal of or interest on any Revolving Loan, or
\nany other regularly scheduled amount payable hereunder or under any other Loan
\nDocument is not paid in full when due (whether at stated maturity, by
\nacceleration, demand or otherwise), the Borrower shall pay interest (after as
\nwell as before judgment) on the overdue principal amount of all outstanding
\nLoans at the applicable rate per annum provided in this Section 2.09 plus 2% and
\non all other overdue amounts (including interest to the extent permitted by
\nlaw), at a rate per annum equal to the Base Rate plus the Applicable Margin plus
\n2%.<\/p>\n
(e) Anything herein to the contrary notwithstanding, the obligations of
\nthe Borrower hereunder shall be subject to the limitation that payments of
\ninterest shall not be required, for any period for which interest is computed
\nhereunder, to the extent (but only to the extent) that contracting for or
\nreceiving such payment by the respective Bank would be contrary to the
\nprovisions of any law applicable to such Bank limiting the highest rate of
\ninterest which may be lawfully contracted for, charged or received by such Bank,
\nand in such event the Borrower shall only pay such Bank interest at the highest
\nrate permitted by applicable law.<\/p>\n
2.10 Fees. In addition to fees described in Section 3.08:<\/p>\n
(a) Commitment Fees.<\/p>\n
The Borrower shall pay to the Administrative Agent for the
\n account of each Bank a commitment fee on the daily unused portion of
\n such Bank’s Revolving Commitment, computed on a quarterly basis in
\n arrears, on each Interest Payment Date for Base Rate Loans based upon
\n the daily utilization for the previous three month period as calculated
\n by the Administrative Agent, equal to (A) for the period from the
\n Closing Date to the First Adjustment Date, 0.50% per annum and (B) from
\n and after the First Adjustment Date, for each period <\/p>\n
-34-<\/p>\n
commencing on an Adjustment Date to the next succeeding Adjustment
\n Date, the rate per annum set forth below opposite the relevant Level of
\n Consolidated Total Leverage Ratio determined as at the end of the last
\n fiscal quarter ended prior to the first day of such period:<\/p>\n
\n\n Consolidated Total Leverage Ratio<\/p>\n
\n Level I 0.300%
\n Level II 0.375%
\n Level III 0.450%
\n Level IV 0.450%
\n Level V 0.500%
\n Level VI 0.500%<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
provided, however, that if by the last day for determining any
\n Adjustment Date, Holdings has failed to deliver a Total Leverage Ratio
\n Certificate as at the end of the fiscal quarter ended immediately prior
\n to such Adjustment Date, the commitment fee for the next succeeding
\n period beginning on such Adjustment Date to the next succeeding
\n Adjustment Date shall be computed as if the Consolidated Total Leverage
\n Ratio were at Level VI; provided further, however, to the extent that
\n Holdings thereafter delivers a Total Leverage Ratio Certificate in
\n respect of such preceding fiscal quarter during such succeeding period
\n the commitment fee for the remainder of such succeeding period shall be
\n computed at the rate prescribed in the table above in this Section
\n 2.10(a)(i). In addition, at any time that a Specified Default shall
\n exist, the commitment fee shall be computed as if the Consolidated
\n Total Leverage Ratio were at Level VI. Such commitment fees shall be
\n paid in arrears on each Interest Payment Date for Base Rate Loans.<\/p>\n
(b) Other Fees. The Borrower shall pay such
\n other fees as have or may be agreed between or among Holdings, the
\n Borrower and the Administrative Agent from time to time.<\/p>\n
2.11 Computation of Fees and Interest.<\/p>\n
(a) All computations of interest payable in respect of Base
\n Rate Loans shall be made on the basis of a year of 365 or 366 days, as
\n the case may be, and actual days elapsed. All other computations of
\n fees and interest under this Agreement shall be made on the basis of a
\n 360-day year (of 12 months with 30 days each) and actual days elapsed.
\n Interest and fees shall accrue during each period during which interest
\n or such fees are computed from the first day thereof to the last day
\n thereof.<\/p>\n
(b) The Administrative Agent will promptly notify the Borrower
\n and the Banks of each determination of the Eurodollar Rate; provided,
\n however, that any failure to do so shall not relieve the Borrower of
\n any liability hereunder. Except as otherwise provided in the last
\n sentence of Section 2.09(a)(iii) or in the proviso to the first
\n sentence of Section 2.09(a)(iii), any change in the interest rate on a
\n Loan resulting from a change <\/p>\n
-35-<\/p>\n
in the Applicable Margin shall become effective as of the opening of
\n business on the relevant Adjustment Date. The Administrative Agent will
\n promptly notify the Borrower and the Banks of the effective date and
\n the amount of each such change, provided, however, that any failure to
\n do so shall not relieve the Borrower of any liability hereunder.<\/p>\n
(c) Each determination of an interest rate by the
\n Administrative Agent shall be conclusive and binding on the Borrower
\n and the Banks in the absence of manifest error.<\/p>\n
2.12 Payments by the Borrower.<\/p>\n
(a) All payments (including prepayments) to be made by the
\n Borrower on account of principal, interest, drawings under Letters of
\n Credit, fees and other amounts required hereunder shall be made, except
\n as otherwise expressly provided herein, without set-off or counterclaim
\n and shall, except as otherwise expressly provided with respect to
\n drawings under Letters of Credit and elsewhere herein, be made to the
\n Administrative Agent for the ratable account of the Banks entitled
\n thereto at the Administrative Agent’s Payment Office, and shall be made
\n in Dollars and in immediately available funds, no later than 2:00 p.m.
\n (New York City time) on the date specified herein. The Administrative
\n Agent will promptly distribute to each Bank its share, if any, of such
\n principal, interest, fees or other amounts, in like funds as received.
\n Any payment which is received by the Administrative Agent later than
\n 2:00 p.m. (New York City time) shall be deemed to have been received on
\n the immediately succeeding Business Day and any applicable interest or
\n fee shall continue to accrue until such payment is deemed to have been
\n received.<\/p>\n
(b) Whenever any payment hereunder shall be stated to be due
\n on a day other than a Business Day, such payment shall be made on the
\n next succeeding Business Day, and such extension of time shall in such
\n case be included in the computation of interest or fees, as the case
\n may be, subject to the provisions set forth in the definition of the
\n term “Interest Period” herein.<\/p>\n
(c) Unless the Administrative Agent shall have received notice
\n from the Borrower prior to the date on which any payment is due to the
\n Banks hereunder that the Borrower will not make the payment in full,
\n the Administrative Agent may assume that the Borrower has made such
\n payment in full to the Administrative Agent as required hereunder on
\n such date in immediately available funds and the Administrative Agent
\n may (but shall not be so required), in reliance upon such assumption,
\n cause to be distributed to each Bank entitled thereto on such due date
\n an amount equal to the amount then due such Bank. If and to the extent
\n the Borrower shall not have made such payment in full to the
\n Administrative Agent, each such Bank shall repay to the Administrative
\n Agent on demand such amount distributed to such Bank, together with
\n interest thereon for each day from the date such amount is distributed
\n to such Bank until the date such Bank repays such amount to the
\n Administrative Agent, at the Federal Funds Rate as in effect for each
\n such day.<\/p>\n
2.13 Payments by the Banks to the Administrative Agent.<\/p>\n
-36-<\/p>\n
(a) Unless the Administrative Agent shall have received notice
\n from a Bank prior to 1:00 p.m. (New York City time) on the date of any
\n proposed Borrowing that such Bank will not make available to the
\n Administrative Agent for the account of the Borrower the amount of such
\n Bank’s Revolving Commitment Percentage of the Revolving Loans included
\n in such Borrowing, the Administrative Agent may assume that each such
\n Bank has made such amount available to the Administrative Agent as
\n required hereunder on the Borrowing Date and the Administrative Agent
\n may (but shall not be so required), in reliance upon such assumption,
\n make available to the Borrower on such date a corresponding amount. If
\n and to the extent any such Bank shall not have made its full amount
\n available to the Administrative Agent in immediately available funds
\n and the Administrative Agent in such circumstances has made available
\n to the Borrower such amount, such Bank shall immediately make such
\n amount available to the Administrative Agent, together with interest at
\n the Federal Funds Rate from the date of such Borrowing to the date on
\n which the Administrative Agent recovers such amount from such Bank or
\n the Borrower. A notice of the Administrative Agent submitted to any
\n Bank with respect to amounts owing under this Section 2.13(a) shall be
\n conclusive, absent manifest error. If such amount is so made available,
\n such payment to the Administrative Agent shall constitute such Bank’s
\n Revolving Loan on the Borrowing Date for all purposes of this
\n Agreement. If such amount is not made available to the Administrative
\n Agent on the next Business Day following such Borrowing Date, the
\n Administrative Agent may notify the Borrower of such failure to fund
\n and, upon demand by the Administrative Agent, the Borrower shall pay
\n such amount to the Administrative Agent for the Administrative Agent’s
\n account, together with interest thereon for each day elapsed since such
\n Borrowing Date, at a rate per annum equal to the interest rate
\n applicable at the time to the Revolving Loans comprising such
\n Borrowing.<\/p>\n
(b) The failure of any Bank to make any Revolving Loan on any
\n Borrowing Date shall not relieve any other Bank of any obligation
\n hereunder to make a Revolving Loan on such Borrowing Date, but no Bank
\n shall be responsible for the failure of any other Bank to make the
\n Revolving Loan to be made by such other Bank on any Borrowing Date.<\/p>\n
2.14 Sharing of Payments, etc.<\/p>\n
(a) If, other than as expressly provided elsewhere herein, any
\n Bank shall obtain on account of the Obligations owing to it any payment
\n (whether voluntary, involuntary, through the exercise of any right of
\n set-off, or otherwise) in excess of its Revolving Commitment Percentage
\n of payments on account of the respective Obligations of the same kind
\n obtained by all the Banks entitled thereto, such Bank shall forthwith
\n (i) notify the Administrative Agent of such fact, and (ii) purchase
\n from the other such Banks such participations in such Obligations made
\n by them as shall be necessary to cause such purchasing Bank to share
\n the excess payment ratably with each of them; provided, however, that
\n if all or any portion of such excess payment is thereafter recovered
\n from the purchasing Bank, such purchase shall to that extent be
\n rescinded and each other such Bank shall repay to the purchasing Bank
\n the purchase price paid therefor, together with <\/p>\n
-37-<\/p>\n
an amount equal to such paying Bank’s Revolving Commitment Percentage
\n (according to the proportion of (A) the amount of such paying Bank’s
\n required repayment to (B) the total amount so recovered from the
\n purchasing Bank) of any interest or other amount paid or payable by the
\n purchasing Bank in respect of the total amount so recovered. The
\n Administrative Agent will keep records (which shall be conclusive and
\n binding in the absence of manifest error) of participations purchased
\n pursuant to this Section 2.14 and will in each case notify the Banks
\n following any such purchases.<\/p>\n
(b) The Borrower agrees that any Bank so
\n purchasing a participation from another Bank pursuant to this Section
\n 2.14 may, to the fullest extent permitted by law, exercise all its
\n rights of payment (including the right of set-off, but subject to
\n Section 12.09) with respect to such participation as fully as if such
\n Bank were the direct creditor of the Borrower in the amount of such
\n participation.<\/p>\n
-38-<\/p>\n
2.15 Security and Guaranties.<\/p>\n
(a) All Obligations of the Borrower, Holdings and the
\n Subsidiary Guarantors under this Agreement and all other Loan Documents
\n to which they are a party shall be secured in accordance with the
\n Collateral Documents.<\/p>\n
(b) All Obligations of the Borrower under this Agreement and
\n all other Loan Documents to which it is a party shall be
\n unconditionally guaranteed by Holdings pursuant to Article X and by the
\n Subsidiary Guarantors pursuant to the Subsidiary Guaranty.<\/p>\n
ARTICLE III.<\/p>\n
THE LETTERS OF CREDIT<\/p>\n
3.01 The Letter of Credit Subfacility.<\/p>\n
(a) On the terms and conditions set forth herein, (i) each
\n Issuing Bank agrees, (A) from time to time, on any Business Day during
\n the period from the Closing Date to the date which is 30 days prior to
\n the Revolving Termination Date to issue (x) irrevocable sight standby
\n Letters of Credit (each such standby Letter of Credit, a “Standby
\n Letter of Credit”) for the account of the Borrower and (y) irrevocable
\n sight commercial Letters of Credit (each such commercial Letter of
\n Credit, a “Trade Letter of Credit” and each such Trade Letter of Credit
\n and each Standby Letter of Credit, a “Letter of Credit”) for the
\n account of the Borrower, and to amend or renew Letters of Credit
\n previously issued by it, in accordance with Sections 3.02(c) and
\n 3.02(d), and (B) to honor drafts under the Letters of Credit; and (ii)
\n the Banks severally agree to participate in Letters of Credit issued
\n for the account of the Borrower; provided, however, that no Issuing
\n Bank shall issue any Letter of Credit if as of the date of, and after
\n giving effect to, the issuance of such Letter of Credit, (x) the
\n aggregate amount of all Letter of Credit Obligations (exclusive of
\n unpaid drawings under any Letter of Credit which are repaid with the
\n proceeds of, and simultaneously with the incurrence of, the respective
\n incurrence of Revolving Loans) plus the aggregate principal amount of
\n all Revolving Loans shall exceed the Aggregate Revolving Commitment, or
\n (y) the Letter of Credit Obligations (exclusive of unpaid drawings
\n under any Letter of Credit which are repaid with the proceeds of, and
\n simultaneously with the incurrence of, the respective incurrence of
\n Revolving Loans) shall exceed the Letter of Credit Commitment. All
\n Letters of Credit shall be denominated in Dollars. Notwithstanding
\n anything to the contrary contained herein, BankBoston, N.A. shall be
\n the Issuing Bank only in respect of the Existing Letter of Credit and
\n with the Existing Letter of Credit being deemed issued for all purposes
\n of this Agreement on the Closing Date.<\/p>\n
-39-<\/p>\n
(b) No Issuing Bank shall be under any obligation to issue any
\n Letter of Credit if:<\/p>\n
(i) any order, judgment or decree of any Governmental
\n Authority shall by its terms purport to enjoin or restrain
\n such Issuing Bank from issuing such Letter of Credit, or any
\n Requirement of Law applicable to such Issuing Bank or any
\n request or directive (whether or not having the force of law)
\n from any Governmental Authority with jurisdiction over such
\n Issuing Bank shall prohibit, or request that such Issuing Bank
\n refrain from, the issuance of letters of credit generally or
\n such Letter of Credit in particular or shall impose upon such
\n Issuing Bank with respect to such Letter of Credit any
\n restriction, reserve or capital requirement (for which such
\n Issuing Bank is not otherwise compensated hereunder) not in
\n effect on the Closing Date or shall impose upon such Issuing
\n Bank any unreimbursed loss, cost or expense which was not
\n applicable on the Closing Date and which such Issuing Bank in
\n good faith deems material to it;<\/p>\n
(ii) such Issuing Bank has received written notice
\n from the Required Banks, the Administrative Agent or the
\n Borrower on or prior to the Business Day prior to the
\n requested date of issuance of such Letter of Credit, that one
\n or more of the applicable conditions contained in Article V is
\n not then satisfied;<\/p>\n
(iii) the expiry date of any requested Letter of
\n Credit (x) is more than (A) in the case of Standby Letters of
\n Credit, one year after the date of issuance or (B) in the case
\n of Trade Letters of Credit, 180 days after the date of
\n issuance, unless (in each case) the Required Banks and such
\n Issuing Bank have approved such expiry date in writing or (y)
\n is later than the 30th day prior to the Revolving Termination
\n Date;<\/p>\n
(iv) any requested Letter of Credit is not in form
\n and substance acceptable to such Issuing Bank, or the
\n issuance, of a Letter of Credit shall violate any applicable
\n policies of such Issuing Bank; or<\/p>\n
(v) such Letter of Credit is in a face amount less
\n than $100,000.<\/p>\n
3.02 Issuance, Amendment and Renewal of Letters of Credit.<\/p>\n
(a) Each Letter of Credit shall be issued upon the irrevocable
\n written request of the Borrower received by the respective Issuing Bank
\n (with a copy sent by the Borrower to the Administrative Agent) at least
\n five days (or such shorter time as such Issuing Bank may agree in a
\n particular instance in its sole discretion) prior to the proposed date
\n of issuance. Each such request for issuance of a Letter of Credit shall
\n be by facsimile, confirmed immediately in an original writing, in the
\n form of a Letter of Credit Application, and shall specify in form and
\n detail satisfactory to such Issuing Bank: (i) the proposed date of
\n issuance of the Letter of Credit (which shall be a Business Day); (ii)
\n the face amount of the Letter of Credit; (iii) the expiry date of the
\n Letter of Credit; (iv) the name and address of the beneficiary thereof;
\n (v) the documents to be presented by <\/p>\n
-40-<\/p>\n
the beneficiary of the Letter of Credit in case of any drawing
\n thereunder; (vi) the full text of any certificate to be presented by
\n the beneficiary in case of any drawing thereunder; and (vii) such other
\n matters as the Issuing Bank may reasonably require.<\/p>\n
(b) From time to time while a Letter of Credit is outstanding
\n and prior to the Revolving Termination Date, such Issuing Bank will,
\n upon the written request of the Borrower received by the respective
\n Issuing Bank (with a copy sent by the Borrower to the Administrative
\n Agent) at least five days (or such shorter time as such Issuing Bank
\n may agree in a particular instance in its sole discretion) prior to the
\n proposed date of amendment, amend any Letter of Credit issued by it.
\n Each such request for amendment of a Letter of Credit shall be made by
\n facsimile, confirmed immediately in an original writing, made in the
\n form of a Letter of Credit Amendment Application and shall specify in
\n form and detail satisfactory to such Issuing Bank: (i) the Letter of
\n Credit to be amended; (ii) the proposed date of amendment of the Letter
\n of Credit (which shall be a Business Day); (iii) the nature of the
\n proposed amendment; and (iv) such other matters as such Issuing Bank
\n may reasonably require. The respective Issuing Bank shall be under no
\n obligation to amend any Letter of Credit if: (A) such Issuing Bank
\n would have no obligation at such time to issue such Letter of Credit in
\n its amended form under the terms of this Agreement; or (B) the
\n beneficiary of any such Letter of Credit does not accept the proposed
\n amendment to the Letter of Credit.<\/p>\n
(c) The Administrative Agent will promptly notify the Banks of
\n the issuance of any Letter of Credit.<\/p>\n
(d) Each Issuing Bank and the Banks agree
\n that, while a Letter of Credit is outstanding and prior to the
\n Revolving Termination Date, at the option of the Borrower and upon the
\n written request of the Borrower received by such Issuing Bank (with a
\n copy sent by the Borrower to the Agent) at least five days (or such
\n shorter time as such Issuing Bank may agree in a particular instance in
\n its sole discretion) prior to the proposed date of notification of
\n renewal, such Issuing Bank shall be entitled to authorize the automatic
\n renewal of any Letter of Credit issued by it. Each such request for
\n renewal of a Letter of Credit shall be made by facsimile, confirmed
\n immediately in an original writing, in the form of a Letter of Credit
\n Amendment Application, and shall specify in form and detail
\n satisfactory to such Issuing Bank: (i) the Letter of Credit to be
\n renewed; (ii) the proposed date of notification of renewal of the
\n Letter of Credit (which shall be a Business Day); (iii) the revised
\n expiry date of the Letter of Credit; and (iv) such other matters as
\n such Issuing Bank may reasonably require. No Issuing Bank shall be
\n under any obligation to renew any Letter of Credit if such Issuing Bank
\n would have no obligation at such time to issue or amend such Letter of
\n Credit in its renewed form under the terms of this Agreement. If any
\n outstanding Standby Letter of Credit shall provide that it shall be
\n automatically renewed unless the beneficiary thereof receives notice
\n from the respective Issuing Bank that such Standby Letter of Credit
\n shall not be renewed, and if at the time of renewal such Issuing Bank
\n would be entitled to authorize the automatic renewal of such Standby
\n Letter of Credit in accordance with this Section 3.02(d) upon the
\n request of the Borrower but such Issuing Bank shall not have received
\n any Letter of Credit Amendment <\/p>\n
-41-<\/p>\n
Application from the Borrower with respect to such renewal or other
\n written direction by the Borrower with respect thereto, such Issuing
\n Bank shall nonetheless be permitted to allow such Standby Letter of
\n Credit to be renewed, and the Borrower and the Banks hereby authorize
\n such renewal, and, accordingly, such Issuing Bank shall be deemed to
\n have received a Letter of Credit Amendment Application from the
\n Borrower requesting such renewal.<\/p>\n
(e) This Agreement shall control in the
\n event of any conflict with any Letter of Credit Related Document (other
\n than any Letter of Credit).<\/p>\n
(f) Each Issuing Bank will also deliver to
\n the Administrative Agent, concurrently or promptly following its
\n delivery of a Letter of Credit, or amendment to or renewal of a Letter
\n of Credit, to an advising bank or a beneficiary, a true and complete
\n copy of each such Letter of Credit or amendment to or renewal of a
\n Letter of Credit.<\/p>\n
3.03 Participations, Drawings and Reimbursements.<\/p>\n
(a) Immediately upon the issuance of each Letter of Credit,
\n each Bank shall be deemed to, and hereby irrevocably and
\n unconditionally agrees to, purchase from the respective Issuing Bank a
\n participation in such Letter of Credit and each drawing thereunder in
\n an amount equal to the product of (i) the Revolving Commitment
\n Percentage of such Bank times (ii) the maximum amount available to be
\n drawn under such Letter of Credit and the amount of such drawing,
\n respectively. For purposes of Section 2.10(a), each issuance of a
\n Letter of Credit shall be deemed to utilize the Revolving Commitment of
\n each Bank by an amount equal to the amount of such participation.<\/p>\n
(b) In the event of any request for a drawing under a Letter
\n of Credit by the beneficiary or transferee thereof, the respective
\n Issuing Bank will promptly notify the Borrower. The Borrower shall
\n reimburse the respective Issuing Bank prior to 2:00 p.m. (New York City
\n time), on the Business Day immediately following each date that any
\n amount is paid by such Issuing Bank under any Letter of Credit (each
\n such date on which any amount is so paid by such Issuing Bank, a
\n “Disbursement Date”), in an amount equal to the amount so paid by such
\n Issuing Bank. In the event the Borrower shall fail to reimburse the
\n respective Issuing Bank for the full amount of any drawing under any
\n Letter of Credit by 2:00 p.m. (New York City time) on the Business Day
\n immediately following the respective Disbursement Date, such Issuing
\n Bank will promptly notify the Administrative Agent and the
\n Administrative Agent will promptly notify each Bank thereof, and the
\n Borrower shall be deemed to have requested that Revolving Loans
\n consisting of Base Rate Loans be made by the Banks (and hereby
\n irrevocably consents to such deemed request) pursuant to Section 2.01
\n to be disbursed on the Business Day immediately following the
\n respective Disbursement Date under such Letter of Credit. Any notice
\n given by the respective Issuing Bank or the Administrative Agent
\n pursuant to this Section 3.03(b) may be oral if immediately confirmed
\n in writing (including by <\/p>\n
-42-<\/p>\n
facsimile); provided, however, that the lack of such an immediate
\n confirmation shall not affect the conclusiveness or binding effect of
\n such notice.<\/p>\n
(c) Each Bank shall upon receipt of any notice pursuant to
\n Section 3.03(b) make available to the Administrative Agent for the
\n account of the respective Issuing Bank an amount in Dollars and in
\n immediately available funds equal to its Revolving Commitment
\n Percentage of the amount of the drawing, whereupon the Banks shall
\n (subject to Section 3.03(d)) each be deemed to have made a Revolving
\n Loan consisting of a Base Rate Loan to the Borrower in that amount. If
\n any Bank so notified shall fail to make available to the Administrative
\n Agent for the account of the respective Issuing Bank the amount of such
\n Bank’s Revolving Commitment Percentage of the amount of the drawing by
\n no later than 2:00 p.m. (New York City time) on the Business Day
\n immediately following the respective Disbursement Date, then interest
\n shall accrue on such Bank’s obligation to make such payment, from the
\n Business Day immediately following the respective Disbursement Date to
\n the date such Bank makes such payment, at a rate per annum equal to (i)
\n the Federal Funds Rate in effect from time to time during the period
\n commencing on the later of the Business Day immediately following the
\n respective Disbursement Date and the date such Bank receives notice of
\n the Disbursement Date prior to 2:00 p.m. (New York City time) on such
\n date and ending on the date three Business Days thereafter, and (ii)
\n thereafter at the Base Rate as in effect from time to time plus the
\n Applicable Margin for Base Rate Loans. The Administrative Agent will
\n promptly give notice of the occurrence of the Disbursement Date, but
\n failure of the Administrative Agent to give any such notice on the
\n Disbursement Date or in sufficient time to enable any Bank to effect
\n such payment on such date shall not relieve such Bank from its
\n obligations under this Section 3.03.<\/p>\n
(d) With respect to any unreimbursed drawing which is not
\n converted into Revolving Loans consisting of Base Rate Loans to the
\n Borrower in whole or in part, because of the Borrower’s failure to
\n satisfy the conditions set forth in Section 5.02 or for any other
\n reason, the Borrower shall be deemed to have incurred from the
\n respective Issuing Bank a Letter of Credit Borrowing in the amount of
\n such drawing, which Letter of Credit Borrowing shall be due and payable
\n on demand (together with interest) and shall bear interest from the
\n respective Disbursement Date at a rate per annum equal to the Base
\n Rate, plus the Applicable Margin for Base Rate Loans, plus in the case
\n of any Letter of Credit Borrowing outstanding after the Business Day
\n immediately following the respective Disbursement Date, 2% per annum,
\n and each Bank’s payment to the respective Issuing Bank pursuant to
\n Section 3.03(c) shall be deemed payment in respect of its participation
\n in such Letter of Credit Borrowing.<\/p>\n
(e) Each Bank’s obligation in accordance with this Agreement
\n to make the Revolving Loans or fund its participation in any Letter of
\n Credit Borrowing, as contemplated by this Section 3.03, as a result of
\n a drawing under a Letter of Credit shall be absolute and unconditional
\n and without recourse to the respective Issuing Bank and shall not be
\n affected by any circumstance, including (i) any set-off, counterclaim,
\n defense or other right which such Bank may have against such Issuing
\n Bank, the Borrower or any <\/p>\n
-43-<\/p>\n
other Person for any reason whatsoever; (ii) the occurrence or
\n continuance of a Default, an Event of Default or a Material Adverse
\n Effect; or (iii) any other circumstance, happening or event whatsoever,
\n whether or not similar to any of the foregoing.<\/p>\n
3.04 Repayment of Participations.<\/p>\n
(a) Upon (and only upon) receipt by the Administrative Agent
\n for the account of the respective Issuing Bank of funds from the
\n Borrower (i) in reimbursement of any payment made by such Issuing Bank
\n under the Letter of Credit with respect to which any Bank has paid the
\n Administrative Agent for the account of such Issuing Bank for such
\n Bank’s participation in the Letter of Credit pursuant to Section 3.03,
\n or (ii) in payment of interest on amounts described in clause (i), the
\n Administrative Agent will pay to each Bank, in the same funds as those
\n received by the Administrative Agent for the account of such Issuing
\n Bank, the amount of such Bank’s Revolving Commitment Percentage of such
\n funds, and such Issuing Bank shall receive the amount of the Revolving
\n Commitment Percentage of such funds of any Bank that did not so pay the
\n Administrative Agent for the account of the Issuing Bank.<\/p>\n
(b) If the Administrative Agent or any Issuing Bank is
\n required at any time to return to the Borrower, or to a trustee,
\n receiver, liquidator, custodian, or any similar official in any
\n Insolvency Proceeding, any portion of the payments made by the Borrower
\n to the Administrative Agent for the account of such Issuing Bank
\n pursuant to Section 3.04(a) in reimbursement of a payment made under
\n the Letter of Credit or interest or fee thereon, each Bank shall, on
\n demand of the Administrative Agent, forthwith return to the
\n Administrative Agent or such Issuing Bank the amount of its Revolving
\n Commitment Percentage of any amounts so returned by the Administrative
\n Agent or such Issuing Bank plus interest thereon from the date such
\n demand is made to the date such amounts are returned by such Bank to
\n the Administrative Agent or such Issuing Bank, at a rate per annum
\n equal to the Federal Funds Rate in effect from time to time.<\/p>\n
3.05 Role of the Issuing Bank.<\/p>\n
(a) Each Bank and the Borrower agree that, in paying any
\n drawing under a Letter of Credit, no Issuing Bank shall have any
\n responsibility to obtain any document (other than any sight draft and
\n certificates expressly required by the Letter of Credit) or to
\n ascertain or inquire as to the validity or accuracy of any such
\n document or the authority of the Person executing or delivering any
\n such document.<\/p>\n
(b) No Issuing Bank nor any of the respective correspondents,
\n participants or assignees of such Issuing Bank shall be liable to any
\n Bank for: (i) any action taken or omitted in connection herewith at the
\n request or with the approval of the Required Banks; (ii) any action
\n taken or omitted in the absence of gross negligence or willful
\n misconduct; or (iii) the due execution, effectiveness, validity or
\n enforceability of any Letter of Credit Related Document.<\/p>\n
-44-<\/p>\n
(c) The Borrower hereby assumes all risks of the acts or
\n omissions of any beneficiary or transferee with respect to its use of
\n any Letter of Credit. No Issuing Bank nor any of the respective
\n correspondents, participants or assignees of such Issuing Bank, shall
\n be liable or responsible for any of the matters described in clauses
\n (i) through (vii) of Section 3.06; provided, however, that the Borrower
\n may have a claim against such Issuing Bank, and such Issuing Bank may
\n be liable to the Borrower, to the extent, but only to the extent, of
\n any direct, as opposed to consequential or exemplary, damages suffered
\n by the Borrower which the Borrower proves were caused by such Issuing
\n Bank’s willful misconduct or gross negligence or such Issuing Bank’s
\n willful failure to pay under any Letter of Credit after the
\n presentation to it by the beneficiary of a sight draft and
\n certificate(s) strictly complying with the terms and conditions of a
\n Letter of Credit. In furtherance and not in limitation of the
\n foregoing: (i) each Issuing Bank may accept documents that appear on
\n their face to be in order, without responsibility for further
\n investigation, regardless of any notice or information to the contrary;
\n and (ii) such Issuing Bank shall not be responsible for the validity or
\n sufficiency of any instrument transferring or assigning or purporting
\n to transfer or assign a Letter of Credit or the rights or benefits
\n thereunder or proceeds thereof, in whole or in part, which may prove to
\n be invalid or ineffective for any reason.<\/p>\n
3.06 Obligations Absolute. The obligations of the Borrower under this
\nAgreement and any Letter of Credit Related Document to reimburse the respective
\nIssuing Bank for a drawing under a Letter of Credit, and to repay any Letter of
\nCredit Borrowing and any drawing under a Letter of Credit converted into
\nRevolving Loans, shall be unconditional and irrevocable, and shall be paid
\nstrictly in accordance with the terms of this Agreement and each such other
\nLetter of Credit Related Document under all circumstances, including the
\nfollowing:<\/p>\n
(i) any lack of validity or enforceability of this Agreement
\n or any Letter of Credit Related Document;<\/p>\n
(ii) any change in the time, manner or place of payment of, or
\n in any other term of, all or any of the obligations of the Borrower in
\n respect of any Letter of Credit or any other amendment or waiver of or
\n any consent to departure from all or any of the Letter of Credit
\n Related Documents;<\/p>\n
(iii) the existence of any claim, set-off, defense or other
\n right that the Borrower or any Subsidiary of the Borrower may have at
\n any time against any beneficiary or any transferee of any Letter of
\n Credit (or any Person for whom any such beneficiary or any such
\n transferee may be acting), the respective Issuing Bank or any other
\n Person, whether in connection with this Agreement, the transactions
\n contemplated hereby or by the Letter of Credit Related Documents or any
\n unrelated transaction;<\/p>\n
(iv) any draft, demand, certificate or other document
\n presented under any Letter of Credit proving to be forged, fraudulent,
\n invalid or insufficient in any respect or any statement therein being
\n untrue or inaccurate in any respect; or any loss or delay in the<\/p>\n
-45-<\/p>\n
transmission or otherwise of any document required in order to make a
\n drawing under any Letter of Credit;<\/p>\n
(v) any payment by the respective Issuing Bank under any
\n Letter of Credit against presentation of a draft or certificate that
\n does not strictly comply with the terms of any Letter of Credit; or any
\n payment made by the respective Issuing Bank under any Letter of Credit
\n to any Person purporting to be a trustee in bankruptcy,
\n debtor-in-possession, assignee for the benefit of creditors,
\n liquidator, receiver or other representative of or successor to any
\n beneficiary or any transferee of any Letter of Credit, including any
\n arising in connection with any Insolvency Proceeding;<\/p>\n
(vi) any exchange, release or non-perfection of any
\n collateral, or any release or amendment or waiver of or consent to
\n departure from any other guaranty, for all or any of the obligations of
\n the Borrower in respect of any Letter of Credit; or<\/p>\n
(vii) any other circumstance or happening whatsoever, whether
\n or not similar to any of the foregoing, including any other
\n circumstance that might otherwise constitute a defense available to, or
\n a discharge of, the Borrower or a guarantor.<\/p>\n
3.07 Cash Collateral Pledge. Upon (a) the request of the Administrative
\nAgent, (i) if any Issuing Bank has honored any full or partial drawing request
\non any Letter of Credit and such drawing has resulted in a Letter of Credit
\nBorrowing hereunder, or (ii) if, as of the Revolving Termination Date, any
\nLetters of Credit may for any reason remain outstanding and partially or wholly
\nundrawn, or (b) the occurrence of the circumstances described in Section 2.07(a)
\nrequiring the Borrower to Cash Collateralize Letters of Credit, then the
\nBorrower shall immediately Cash Collateralize the Letter of Credit Obligations
\nin an amount equal to such Letter of Credit Obligations (or in the case of
\nclause (ii) above, the excess amount required pursuant to Section 2.07(a)) and
\nsuch cash will be held as security for all Obligations of the Borrower to the
\nBanks hereunder in a cash collateral account to be established by the
\nAdministrative Agent, and during the existence of an Event of Default, the
\nAdministrative Agent may, upon the request of the Required Banks, apply such
\namounts so held to the payment of such outstanding Obligations.<\/p>\n
3.08 Letter of Credit Fees.<\/p>\n
(a) The Borrower shall pay to the Administrative Agent for the
\n account of each Bank a letter of credit fee with respect to the Letters
\n of Credit computed on the daily maximum amount available to be drawn of
\n the outstanding Letters of Credit, on each Interest Payment Date for
\n Base Rate Loans based upon Letters of Credit outstanding for the
\n previous three-month period. The letter of credit fee shall be equal to
\n (i) for the period from the Closing Date to the First Adjustment Date,
\n 2.500% per annum and (ii) from and after the First Adjustment Date, for
\n each period commencing on an Adjustment Date to the next succeeding
\n Adjustment Date, the rate per annum set forth below opposite the
\n relevant Level of Consolidated Total Leverage Ratio determined as at
\n the end of the last fiscal quarter ended prior to the first day of such
\n period:<\/p>\n
-46-<\/p>\n
\n\n Consolidated Total Leverage Ratio
\n
\n Level I 1.250%
\n Level II 1.625%
\n Level III 1.875%
\n Level IV 2.125%
\n Level V 2.250%
\n Level VI 2.500%<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
provided, however, that if by the day for determining any Adjustment
\n Date Holdings has failed to deliver a Total Leverage Ratio Certificate
\n as at the end of the fiscal quarter ended immediately prior to such
\n Adjustment Date, the letter of credit fee for the next succeeding
\n period beginning on such Adjustment Date to the next succeeding
\n Adjustment Date shall be computed as if the Consolidated Total Leverage
\n Ratio were at Level VI; provided further, however, to the extent that
\n Holdings thereafter delivers a Total Leverage Ratio Certificate in
\n respect of such preceding fiscal quarter during such succeeding period,
\n the letter of credit fee for the remainder of such succeeding period
\n shall be computed at the rate prescribed in the table above in this
\n Section 3.08(a). In addition, at any time that a Specified Default
\n shall exist, the letter of credit fee shall be computed as if the
\n Consolidated Total Leverage Ratio were at Level VI. Such letter of
\n credit fee shall be due and payable in arrears on each Interest Payment
\n Date for Base Rate Loans.<\/p>\n
(b) The Borrower shall pay to such Issuing Bank a letter of
\n credit fronting fee for each Letter of Credit issued by such Issuing
\n Bank equal to .15% per annum of the face amount of such Letter of
\n Credit. Such Letter of Credit fronting fee shall be due and payable in
\n arrears on each Interest Payment Date for Base Rate Loans.<\/p>\n
(c) The Borrower shall pay to such Issuing Bank from time to
\n time on demand the normal issuance, presentation, amendment and other
\n processing fees, and other standard costs and charges, of such Issuing
\n Bank relating to letters of credit as from time to time in effect.<\/p>\n
3.09 Uniform Customs and Practice. The Uniform Customs and Practice for
\nDocumentary Credits as most recently published by the International Chamber of
\nCommerce shall in all respects be deemed a part of this Article III as if
\nincorporated herein and (unless otherwise expressly provided in the Letters of
\nCredit) shall apply to the Letters of Credit.<\/p>\n
ARTICLE IV.<\/p>\n
TAXES, YIELD PROTECTION AND ILLEGALITY<\/p>\n
4.01 Taxes.<\/p>\n
-47-<\/p>\n
(a) Subject to Section 4.01(g), any and all payments made by
\n Holdings and the Borrower to any Bank or the Administrative Agent under
\n this Agreement shall be made without setoff, counterclaim or other
\n defense and shall be made free and clear of, and without deduction or
\n withholding for or on account of, any and all present or future taxes,
\n levies, imposts, deductions, duties, fees, assessments, charges or
\n withholdings or other charges of whatever nature now or hereafter
\n imposed by any jurisdiction or by any political subdivision or taxing
\n authority thereof or therein with respect to such payments, and all
\n liabilities with respect thereto, excluding, in the case of each Bank
\n and the Administrative Agent (except as otherwise provided in Section
\n 4.01(c)), as the case may be, such taxes as are imposed on or measured
\n by such Person’s net income or net profits by the jurisdiction under
\n the laws of which such Person is organized or has its principal office
\n or in which the Lending Office of such Person is located or any
\n political subdivision thereof (all such non-excluded taxes, levies,
\n imposts, deductions, duties, fees, assessments or other charges,
\n withholdings and liabilities being hereinafter referred to as “Taxes”).<\/p>\n
(b) In addition, the Borrower and Holdings shall pay any
\n present or future stamp or documentary taxes or any other excise or
\n property taxes, charges or similar levies which arise from any payment
\n made hereunder or from the execution, delivery or registration of, or
\n otherwise with respect to, this Agreement or any other Loan Document
\n (hereinafter referred to as “Other Taxes”).<\/p>\n
(c) Subject to Section 4.01(g), the Borrower and Holdings
\n shall indemnify and hold harmless each Bank and the Administrative
\n Agent for (i) the full amount of Taxes and Other Taxes (including any
\n Taxes or Other Taxes imposed by any jurisdiction on amounts payable
\n under Section 4.01(d) and this Section 4.01(c)) and (ii) the full
\n amount of all taxes imposed on or measured by the net income or net
\n profits of such Bank or the Administrative Agent pursuant to the laws
\n of the jurisdiction in which such Bank or the Administrative Agent is
\n organized or has its principal office or in which the Lending Office of
\n such Person is located or under the laws of any political subdivision
\n or taxing authority of any such jurisdiction in which such Bank or the
\n Administrative Agent is organized or has its principal office or in
\n which their Lending Office is located paid by such Bank or the
\n Administrative Agent as a result of amounts payable by the Borrower
\n under Section 4.01(d) and this Section 4.01(c), and any liability
\n (including penalties, interest, additions to tax and expenses) arising
\n therefrom or with respect thereto, whether or not such taxes or other
\n liabilities were correctly or legally asserted.<\/p>\n
(d) If the Borrower or Holdings shall be required by law to
\n deduct or withhold any Taxes or Other Taxes from or in respect of any
\n sum payable hereunder to any Bank or the Administrative Agent, then,
\n subject to Section 4.01(g):<\/p>\n
(i) the sum payable shall be increased as necessary
\n so that after making all required deductions (including
\n deductions applicable to additional sums payable under this
\n Section 4.01(d)) such Bank or the Administrative Agent, <\/p>\n
-48-<\/p>\n
as the case may be, receives an amount equal to the sum it
\n would have received had no such deductions or withholdings
\n been made;<\/p>\n
(ii) the Borrower or Holdings shall make such
\n deductions; and<\/p>\n
(iii) the Borrower or Holdings shall pay the full
\n amount deducted to the relevant taxation authority or other
\n authority in accordance with applicable law.<\/p>\n
(e) Within 30 days after the date of any payment by the
\n Borrower or Holdings of Taxes or Other Taxes is due pursuant to
\n applicable law, such Person shall furnish to the Administrative Agent,
\n at its address referred to in Section 12.02, the original or a
\n certified copy of a receipt evidencing payment thereof, or other
\n evidence of payment satisfactory to the Administrative Agent.<\/p>\n
(f) Each Bank which is organized under the laws of a
\n jurisdiction outside the United States agrees that:<\/p>\n
(i) it shall, no later than the Closing Date (or, in
\n the case of a Bank which becomes a party hereto pursuant to
\n Section 12.07 after the Closing Date, the date upon which such
\n Bank becomes a party hereto) (A) deliver to the Borrower and
\n the Administrative Agent two accurate and complete signed
\n originals of Internal Revenue Service Form 4224 or any
\n successor thereto (“Form 4224”), or two accurate and complete
\n signed originals of Internal Revenue Service Form 1001 or any
\n successor thereto (“Form 1001”), as appropriate, in each case
\n indicating that such Bank is on the date of delivery thereof
\n entitled to receive all payments under this Agreement free
\n from withholding of United States Federal income tax or (B) if
\n the Bank is not a “bank” within the meaning of Section
\n 881(c)(3)(A) of the Code and cannot deliver either Form 1001
\n or 4224 pursuant to clause (A) above, deliver to the Borrower
\n and the Administrative Agent (x) a certificate substantially
\n in the form of Exhibit O (any such certificate, a “Section
\n 4.01(f)(i) Certificate”) and (y) two accurate and complete
\n original signed copies of Internal Revenue Service Form W-8 or
\n any successor thereto (“Form W-8”) certifying to such Bank’s
\n entitlement to a complete exemption from United States
\n withholding tax with respect to payments of interest to be
\n made under this Agreement;<\/p>\n
(ii) if at any time such Bank makes any change in its
\n place of incorporation or fiscal residence necessitating a new
\n Form 4224 or Form 1001 or Form W-8 and a Section 4.01(f)(i)
\n Certificate, as the case may be, such Bank shall promptly
\n deliver to the Borrower and the Administrative Agent in
\n replacement for, or in addition to, the forms previously
\n delivered by such Bank hereunder, two accurate and complete
\n signed originals of Form 4224 or Form 1001 or Form W-8 and
\n Section 4.01(f)(i) Certificate, as appropriate, in each case
\n indicating that such Bank is on the date of delivery thereof
\n entitled to receive all payments under this Agreement free
\n from withholding of United States Federal income tax;<\/p>\n
-49-<\/p>\n
(iii) it shall, to the extent it is legally entitled
\n to do so, before or promptly after such Bank makes any change
\n of a Lending Office or its principal office, or the occurrence
\n of any event (including the passing of time but excluding any
\n event mentioned in clause (ii) above) requiring a change in or
\n renewal of the most recent Form 4224 or Form 1001 or Form W-8
\n and a Section 4.01(f)(i) Certificate, as the case may be,
\n previously delivered by such Bank, deliver to the Borrower and
\n the Administrative Agent two accurate and complete original
\n signed copies of Form 4224 or Form 1001 or Form W-8 and a
\n Section 4.01(f)(i) Certificate, as appropriate, in replacement
\n for the forms previously delivered by such Bank indicating
\n that such Bank continues to be entitled to receive all
\n payments under this Agreement free from any withholding of any
\n United States Federal income tax;<\/p>\n
(iv) it shall, to the extent it is legally entitled
\n to do so, promptly upon the Borrower’s or the Administrative
\n Agent’s reasonable request to that effect, deliver to the
\n Borrower or the Administrative Agent (as the case may be) such
\n other forms or similar documentation as may be required from
\n time to time by any applicable law, treaty, rule or regulation
\n in order to establish such Bank’s complete exemption from
\n withholding on all payments under this Agreement; and<\/p>\n
(v) without limiting or restricting any Bank’s right
\n to increased amounts under Section 4.01(d) from the Borrower
\n and Holdings upon satisfaction of such Bank’s obligations
\n under the provisions of this Section 4.01(f), if such Bank is
\n entitled to a reduction in the applicable withholding tax, the
\n Administrative Agent may (but shall not be obligated to)
\n withhold from any interest payable to such Bank an amount
\n equivalent to the applicable withholding tax after taking into
\n account such reduction. If the forms or other administrative
\n documentation required by clause (i) are not delivered to the
\n Administrative Agent, then the Administrative Agent shall
\n withhold from any interest payment to any Bank not providing
\n such forms or other documentation, an amount equivalent to the
\n applicable withholding tax and in addition, the Administrative
\n Agent shall also withhold against periodic payments other than
\n interest payments to the extent United States withholding tax
\n is not eliminated by obtaining Form 4224 or Form 1001 or Form
\n W-8 and a Section 4.01(f)(i) Certificate, as appropriate. The
\n Borrower shall indemnify and hold harmless the Administrative
\n Agent and each of its officers, directors, employees, counsel,
\n agents and attorney-in-fact, on an after tax basis, from and
\n against all liabilities, obligations, losses, damages,
\n penalties, actions, judgments, suits, costs, charges, expenses
\n or disbursements (including Attorney Costs) of any kind
\n whatsoever incurred as a result of or in connection with the
\n Administrative Agent’s failure to withhold as provided
\n pursuant to the preceding sentence, unless such failure
\n constitutes gross negligence or willful misconduct of the
\n Administrative Agent itself as the same is determined by a
\n final judgment of a court of competent jurisdiction and the
\n obligations in this sentence shall survive payment of all
\n other Obligations.<\/p>\n
-50-<\/p>\n
(g) Neither the Borrower nor Holdings will be required to pay
\n any additional amounts in respect of Taxes imposed by the United States
\n Federal government pursuant to Sections 4.01(c) or 4.01(d) to any Bank
\n if and to the extent the obligation to pay such additional amounts
\n would not have arisen but for a failure by such Bank to comply with its
\n obligations under Section 4.01(f).<\/p>\n
(h) Each Bank agrees that it shall, at any
\n time upon reasonable advance request in writing by the Borrower or the
\n Administrative Agent, promptly deliver such certification or other
\n documentation as may be required under the law or regulation in any
\n applicable jurisdiction and which such Bank is entitled to submit to
\n avoid or reduce withholding taxes on amounts to be paid by the Borrower
\n or Holdings and received by such Bank pursuant to this Agreement or any
\n other Loan Document.<\/p>\n
(i) Subject to Section 4.01(g), the Borrower and Holdings
\n shall pay any additional amounts and indemnify each Bank and the
\n Administrative Agent, to the extent required by this Section 4.01
\n within 30 days after receipt of written request from such Bank or the
\n Administrative Agent thereof accompanied by a written statement
\n describing in reasonable detail the Taxes or Other Taxes or other
\n additional amounts that are the subject of the basis for such indemnity
\n and the computation of the amount payable.<\/p>\n
(j) If the Borrower or Holdings is required to pay additional
\n amounts to any Bank or the Administrative Agent pursuant to Section
\n 4.01(d), then such Bank shall, upon the Borrower’s request, use its
\n reasonable best efforts (consistent with policy considerations of such
\n Bank) to change the jurisdiction of its Lending Office so as to reduce
\n or eliminate any such additional payment which may thereafter accrue if
\n such change in the sole judgment of such Bank is not otherwise
\n disadvantageous to such Bank.<\/p>\n
(k) Each Bank agrees that it will (i) take all reasonable
\n actions reasonably requested by Holdings or the Borrower (consistent
\n with policy considerations by such Bank) to maintain all exemptions, if
\n any, available to it from withholding taxes (whether available by
\n treaty or existing administrative waiver), and (ii) to the extent
\n reasonable, otherwise cooperate with Holdings or the Borrower to
\n minimize any amounts payable by Holdings or the Borrower under this
\n Section 4.01, in any case described in the preceding clauses (i) and
\n (ii), however, only if such action or cooperation is not
\n disadvantageous to such Bank in the sole judgment of such Bank.<\/p>\n
4.02 Illegality.<\/p>\n
(a) If any Bank shall determine that (i) the introduction of
\n any Requirement of Law, or any change in any Requirement of Law, or in
\n the interpretation or administration thereof, has made it unlawful, or
\n (ii) any central bank or other Governmental Authority has asserted that
\n it is unlawful for such Bank or its Lending Office to make a Eurodollar
\n Loan or to convert any Base Rate Loan to a Eurodollar Loan, then, on
\n notice thereof by such Bank to the Borrower through the Administrative
\n Agent, the obligation of such Bank to make or convert any such
\n Eurodollar Loans shall be suspended until such Bank <\/p>\n
-51-<\/p>\n
shall have notified the Administrative Agent and the Borrower that the
\n circumstances giving rise to such determination no longer exist.<\/p>\n
(b) If a Bank shall determine that it is unlawful to maintain
\n any Eurodollar Loan, the Borrower shall, unless otherwise permitted
\n under paragraph (c) below, prepay in full all Eurodollar Loans of such
\n Bank then outstanding, together with interest accrued thereon, either
\n on the last day of the Interest Period thereof if such Bank may
\n lawfully continue to maintain such Eurodollar Loans to such day, or
\n immediately, if the Bank may not lawfully continue to maintain such
\n Eurodollar Loans, together with any amounts required to be paid in
\n connection therewith pursuant to Section 4.04.<\/p>\n
(c) If the Borrower is required to prepay any Eurodollar Loan
\n immediately, then concurrently with such prepayment, the Borrower shall
\n borrow from the affected Bank, in the aggregate amount of such
\n repayment, Base Rate Loans.<\/p>\n
(d) Before giving any notice to the Administrative Agent
\n pursuant to this Section 4.02, the affected Bank shall designate a
\n different Lending Office with respect to its Eurodollar Loans if such
\n designation will avoid the need for giving such notice or making such
\n demand and will not, in the judgment of such Bank, be illegal,
\n inconsistent with the policies of such Bank or otherwise
\n disadvantageous to such Bank.<\/p>\n
4.03 Increased Costs and Reduction of Return.<\/p>\n
(a) If any Bank or any Issuing Bank shall determine that, due
\n to either (i) the introduction of or any change in or in the
\n interpretation or administration of any law or regulation (other than
\n any law or regulation relating to taxes, including those relating to
\n Taxes or Other Taxes) after the Closing Date or (ii) the compliance
\n with any guideline or request from any central bank or other
\n Governmental Authority (whether or not having the force of law) made
\n after the Closing Date, there shall be any increase in the cost to such
\n Bank of agreeing to make or making, funding or maintaining any
\n Eurodollar Loans or participating in any Letter of Credit Obligations,
\n or any increase in the cost to such Issuing Bank of agreeing to issue,
\n issuing or maintaining any Letter of Credit or of agreeing to make or
\n making, funding or maintaining any unpaid drawing under any Letter of
\n Credit, then the Borrower shall be liable for, and shall from time to
\n time, within ten days of demand therefor by such Bank or such Issuing
\n Bank, as the case may be (with a copy of such demand to the
\n Administrative Agent), pay to the Administrative Agent for the account
\n of such Bank or such Issuing Bank, additional amounts as are sufficient
\n to compensate such Bank or the Issuing Bank for such increased costs.<\/p>\n
(b) If any Bank or any Issuing Bank shall have determined that
\n (i) the introduction of any Capital Adequacy Regulation after the
\n Closing Date, (ii) any change in any Capital Adequacy Regulation after
\n the Closing Date, (iii) any change in the interpretation or
\n administration of any Capital Adequacy Regulation by any central bank
\n or other Governmental Authority charged with the interpretation or
\n administration thereof after the Closing Date, or (iv) compliance by
\n any Bank (or its Lending Office) or any Issuing Bank, as the case may
\n be, or any corporation controlling such Bank or such <\/p>\n
-52-<\/p>\n
Issuing Bank, as the case may be, with any Capital Adequacy Regulation
\n adopted after the Closing Date, affects or would affect the amount of
\n capital required or expected to be maintained by such Bank or such
\n Issuing Bank or any corporation controlling such Bank or such Issuing
\n Bank and (taking into consideration such Bank’s, such Issuing Bank’s or
\n such corporation’s policies with respect to capital adequacy and such
\n Bank’s, such Issuing Bank’s or corporation’s desired return on capital)
\n determines that the amount of such capital is (or is required to be)
\n increased as a consequence of any of its Revolving Commitment,
\n Revolving Loans, participations in Letters of Credit, or obligations
\n under this Agreement, then, within ten days of demand by such Bank or
\n such Issuing Bank (with a copy to the Administrative Agent), the
\n Borrower shall be liable for and shall immediately pay to such Bank or
\n such Issuing Bank, from time to time as specified by such Bank or such
\n Issuing Bank, additional amounts sufficient to compensate such Bank or
\n such Issuing Bank for such increase.<\/p>\n
4.04 Funding Losses. The Borrower agrees to reimburse each Bank and to
\nhold each Bank harmless from any loss, cost or expense (other than loss of
\nmargin) which such Bank may sustain or incur as a consequence of:<\/p>\n
(a) any failure by the Borrower to make any payment of
\n principal of any Eurodollar Loan (including payments made after any
\n acceleration thereof) when due;<\/p>\n
(b) any failure by the Borrower to borrow a Eurodollar Loan or
\n continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar
\n Loan after the Borrower has given (or is deemed to have given) a Notice
\n of Borrowing or a Notice of Conversion\/ Continuation, as the case may
\n be;<\/p>\n
(c) any failure by the Borrower to make any prepayment of a
\n Eurodollar Loan after the Borrower has given a notice in accordance
\n with Section 2.06; or<\/p>\n
(d) any payment or prepayment (including pursuant to Section
\n 2.07, Section 2.08 or after acceleration thereof) of a Eurodollar Loan
\n for any reason whatsoever on a day which is not the last day of the
\n Interest Period with respect thereto;<\/p>\n
including any such loss or expense arising from the liquidation or reemployment
\nof funds obtained by it to maintain any Eurodollar Loan hereunder or from fees
\npayable to terminate the deposits from which such funds were obtained.<\/p>\n
4.05 Inability to Determine Rates. Notwithstanding any provisions
\nherein to the contrary, if, in relation to any proposed Eurodollar Loan, (a) the
\nAdministrative Agent shall have reasonably determined (which determination shall
\nbe conclusive and binding upon all parties hereto) that by reason of
\ncircumstances affecting the interbank markets adequate and fair means do not
\nexist for ascertaining the Eurodollar Rate to be applicable to such Eurodollar
\nLoan or (b) the Administrative Agent shall have received notice from the
\nRequired Banks that LIBOR determined or to be determined for any Interest Period
\nwill not adequately and fairly reflect the cost to such Banks (as conclusively
\ncertified by such Banks in writing to the Administrative Agent and the Borrower)
\nof making or maintaining their affected Loans during such affected <\/p>\n
-53-<\/p>\n
Interest Period, then, the obligation of the Banks to make, continue or maintain
\nEurodollar Loans or to convert Base Rate Loans into Eurodollar Loans shall be
\nsuspended until the Administrative Agent upon the instruction of the Required
\nBanks revokes such notice in writing. If, notwithstanding the provisions of this
\nSection 4.05, any Bank has made available to the Borrower its Commitment
\nPercentage of any such proposed Eurodollar Loan, then such Eurodollar Loan shall
\nimmediately be converted into a Base Rate Loan.<\/p>\n
4.06 Increased Costs on Eurodollar Loans. At any time that any Bank
\nshall incur increased costs or reductions in the amounts received or receivable
\nhereunder with respect to any Eurodollar Loans (other than any increased cost or
\nreduction in the amount received or receivable resulting from the imposition of
\nor a change in the rate of net income taxes or similar charges) because of (x)
\nany change since the date of this Agreement in any Requirement of Law or
\ngovernmental guideline, order or request (whether or not having the force of
\nlaw), or in the interpretation or administration thereof and including the
\nintroduction of any new law or governmental rule, regulation, guideline, order
\nor request (such as, for example, but not limited to, a change in official
\nreserve requirements, but, in all events, excluding reserves required under
\nRegulation D to the extent included in the computation of LIBOR) and\/or (y)
\nother circumstances affecting such Bank, the interbank Eurodollar market or the
\nposition of such Bank in such market, then the Borrower shall pay to each such
\nBank, upon written demand therefor (accompanied by the written notice referred
\nto in Section 4.07 below), such additional amounts (in the form of an increased
\nrate of, or a different method of calculating, interest or otherwise as such
\nBank in its sole discretion shall determine) as shall be required to compensate
\nsuch Bank for such increased costs or reductions in amounts received or
\nreceivable hereunder.<\/p>\n
4.07 Certificates of Banks. Any Bank or any Issuing Bank claiming
\nreimbursement or compensation pursuant to this Article IV shall deliver to the
\nBorrower or Holdings, as applicable (with a copy to the Administrative Agent) a
\ncertificate setting forth in reasonable detail (including the basis therefor and
\nthe calculation thereof) the amount payable to such Person hereunder and such
\ncertificate shall be conclusive and binding on the Borrower or Holdings in the
\nabsence of manifest error. In determining any amounts payable under Section
\n4.03(b), each Bank or each Issuing Bank, as the case may be, shall act
\nreasonably and in good faith and will use averaging and attribution methods
\nwhich are reasonable.<\/p>\n
4.08 Change of Lending Office, Replacement Bank, etc.<\/p>\n
(a) Each Bank agrees that upon the occurrence of an event
\n giving rise to the operation of Section 4.02, 4.03 or 4.06 with respect
\n to such Bank, it will if so requested by the Borrower, use reasonable
\n efforts (consistent with its internal policy and legal and regulatory
\n restrictions) to designate a different Lending Office for any Revolving
\n Loans affected by such event with the object of avoiding the
\n consequence of the event giving rise to the operation of such section;
\n provided, however, that such designation would not, in the sole
\n judgment of such Bank, be otherwise disadvantageous to such Bank.
\n Nothing in this Section 4.08(a) shall affect or postpone any of the
\n obligations of the Borrower or the right of any Bank provided in
\n Section 4.02, 4.03 or 4.06.<\/p>\n
-54-<\/p>\n
(b) Notwithstanding anything to the contrary contained herein
\n or in any other Loan Document, (x) upon the occurrence of any event
\n that obligates the Borrower or Holdings to pay any amount under Section
\n 4.01 or giving rise to the operation of Section 4.02, 4.03 or 4.06 with
\n respect to such Bank or (y) as provided in Section 12.01(b) in the case
\n of certain refusals by a Bank to consent to certain proposed changes,
\n waivers, discharges or terminations with respect to this Agreement
\n which have been approved by the Required Banks, the Borrower shall have
\n the right, if no Default or Event of Default then exists or will exist
\n immediately after giving effect to the respective replacement, to
\n replace such Bank (the “Replaced Bank”) by designating another Bank or
\n an Eligible Assignee (such Bank or Eligible Assignee being herein
\n called a “Replacement Bank”) to which such Replaced Bank shall assign,
\n in accordance with Section 12.07 and without recourse to or warranty
\n by, or expense to, such Replaced Bank, any of the rights and
\n obligations of such Replaced Bank hereunder (except for such rights as
\n survive repayment of the Revolving Loans), and, upon such assignment,
\n such Replaced Bank shall no longer be a party hereto or have any rights
\n hereunder and such Replacement Bank shall succeed to the rights and
\n obligations of such Replaced Bank hereunder. The Borrower shall pay to
\n such Replaced Bank in same day funds on the date of replacement all
\n interest, fees and other amounts then due and owing such Replaced Bank
\n by the Borrower hereunder to and including the date of replacement,
\n including, without limitation, costs incurred under Sections 4.01,
\n 4.02, 4.03 or 4.06.<\/p>\n
4.09 Survival. The agreements and obligations of Holdings and the
\nBorrower in this Article IV shall survive the payment of all other Obligations.<\/p>\n
ARTICLE V.<\/p>\n
CONDITIONS PRECEDENT<\/p>\n
5.01 Conditions to Revolving Loans and Letters of Credit on the Closing
\nDate. The occurrence of the Closing Date, the obligation of each Bank to make
\nRevolving Loans hereunder and the obligation of each Issuing Bank to issue
\nLetters of Credit on the Closing Date is subject to the condition that the
\nAdministrative Agent and the Syndication Agent shall be reasonably satisfied
\nthat the following conditions have been satisfied on or before the Closing Date
\nand, to the extent applicable, shall have received on or before the date for
\nmaking such Revolving Loans and\/or issuing such Letters of Credit all of the
\nfollowing, in form and substance reasonably satisfactory to the Administrative
\nAgent, the Syndication Agent and each Bank and (except for the instruments or
\ndocuments representing Pledged Securities) in sufficient copies for each Bank:<\/p>\n
(a) Credit Agreement. This Agreement executed by the Borrower,
\n Holdings, the Administrative Agent, each Issuing Bank and each of the
\n Banks (or, in the case of any party as to which an executed counterpart
\n shall not have been received, receipt by the Administrative Agent in
\n form satisfactory to it of facsimile or other written confirmation from
\n such party of execution of a counterpart hereof by such party).<\/p>\n
-55-<\/p>\n
(b) Resolutions; Incumbency.<\/p>\n
(i) Copies of the resolutions of the Board of
\n Directors of the Borrower approving and authorizing the
\n execution, delivery and performance by the Borrower of this
\n Agreement and the other Loan Documents to be delivered by the
\n Borrower, and authorizing the borrowing of the Revolving Loans
\n and the issuance of the Letters of Credit, certified as of the
\n Closing Date by the Secretary or an Assistant Secretary of the
\n Borrower;<\/p>\n
(ii) Copies of the resolutions of the Board of
\n Directors of Holdings approving and authorizing the execution,
\n delivery and performance by Holdings of this Agreement
\n (including the guaranty of the Obligations of the Borrower)
\n and the other Loan Documents to be delivered by Holdings,
\n certified by the Secretary or an Assistant Secretary of
\n Holdings;<\/p>\n
(iii) Copies of the resolutions of the Board of
\n Directors of each Subsidiary Guarantor approving and
\n authorizing the execution, delivery and performance by such
\n Subsidiary Guarantor of the Subsidiary Guaranty, the Pledge
\n Agreement, the Security Agreement and the other Loan Documents
\n to be delivered by such Subsidiary Guarantor, certified by the
\n Secretary or an Assistant Secretary of such Subsidiary
\n Guarantor; and<\/p>\n
(iv) Certificates of the Secretary or Assistant
\n Secretary of Holdings, the Borrower and each Subsidiary
\n Guarantor certifying the names and true signatures of the
\n officers of Holdings, the Borrower and such Subsidiary
\n Guarantor authorized to execute, deliver and perform, as
\n applicable, this Agreement and all other Loan Documents,
\n notices, requests and other communications to be delivered
\n hereunder or thereunder.<\/p>\n
(c) Articles of Incorporation; By-laws and Good Standing. Each
\n of the following documents:<\/p>\n
(i) the articles or certificate of incorporation (or
\n equivalent organizational documents) of Holdings, the Borrower
\n and each Subsidiary Guarantor as in effect on the Closing
\n Date, certified by the Secretary of State (or similar,
\n applicable Governmental Authority) of the State of such Credit
\n Party’s organization as of a recent date and by the Secretary
\n or Assistant Secretary of Holdings, the Borrower and such
\n Subsidiary Guarantor as of the Closing Date, and the bylaws
\n (or equivalent organizational documents) of Holdings, the
\n Borrower and such Subsidiary Guarantor as in effect on the
\n Closing Date, certified by the Secretary or Assistant
\n Secretary of Holdings, the Borrower and each Subsidiary
\n Guarantor as of the Closing Date;<\/p>\n
(ii) a good standing certificate for Holdings, the
\n Borrower and each Subsidiary Guarantor from the Secretary of
\n State of the State of such Credit Party’s organization and
\n each state where Holdings, the Borrower and each <\/p>\n
-56-<\/p>\n
Subsidiary Guarantor is qualified to do business as a foreign
\n corporation as of a recent date; and<\/p>\n
(iii) a bring-down certificate, to the extent
\n reasonably available, of Holdings, the Borrower and each
\n Subsidiary Guarantor from the Secretary of State of the State
\n of such Credit Party’s organization, dated the Closing Date.<\/p>\n
(d) Subsidiary Guaranty. The Subsidiary Guaranty, duly
\n executed by each Subsidiary Guarantor.<\/p>\n
(e) Pledge Agreement.<\/p>\n
(i) The Pledge Agreement, duly executed by each
\n Credit Party;<\/p>\n
(ii) all certificated Pledged Securities (x) endorsed
\n in blank in the case of promissory notes representing Pledged
\n Securities and (y) together with an undated stock power
\n executed in blank in the case of capital stock representing
\n Pledged Securities; and<\/p>\n
(iii) with respect to Pledged Securities, if any,
\n consisting of book-entry shares, evidence that all actions
\n described in the Pledge Agreement which are necessary to
\n create and perfect the security interests pursuant to the
\n Pledge Agreement in accordance with Articles 8 and 9 of the
\n UCC have been taken.<\/p>\n
(f) Security Agreement.<\/p>\n
(i) The Security Agreement, duly executed by each
\n Credit Party;<\/p>\n
(ii) proper Financing Statements (Form UCC-1 or the
\n equivalent) fully executed for filing under the UCC or other
\n appropriate filing offices of each jurisdiction as may be
\n necessary or, in the reasonable opinion of the Administrative
\n Agent, desirable to perfect the security interests purported
\n to be created by the Security Agreement;<\/p>\n
(iii) certified copies of Requests for Information or
\n Copies (Form UCC-11), or equivalent reports, listing all
\n effective financing statements that name any Credit Party or
\n any of its Subsidiaries as debtor and that are filed in the
\n jurisdictions referred to in clause (ii) above, together with
\n copies of such other financing statements that name any Credit
\n Party or any of its Subsidiaries as debtor (none of which
\n shall cover the Collateral except to the extent evidencing
\n Permitted Liens or in respect of which the Administrative
\n Agent shall have received termination statements (Form UCC-3)
\n or such other termination statements as shall be required by
\n local law fully executed for filing);<\/p>\n
(iv) evidence of the completion of all other
\n recordings and filings of, or with respect to, the Security
\n Agreement as may be necessary or, in the reasonable <\/p>\n
-57-<\/p>\n
opinion of the Administrative Agent, desirable to perfect the
\n security interests intended to be created by the Security
\n Agreement; and<\/p>\n
(v) evidence that all other actions necessary or, in
\n the reasonable opinion of the Administrative Agent, desirable
\n to perfect and protect the security interests purported to be
\n created by the Security Agreement have been taken.<\/p>\n
(g) Legal Opinions.<\/p>\n
(i) An opinion of Jones, Day, Reavis & Pogue, counsel
\n to Holdings, the Borrower and the Subsidiary Guarantors,
\n addressed to the Administrative Agent and the Banks,
\n containing opinions substantially in the form of Exhibit H and
\n as to such other matters as the Administrative Agent may
\n reasonably request; and<\/p>\n
(ii) An opinion of White & Case LLP, special counsel
\n to the Administrative Agent and the Banks, containing opinions
\n substantially in the form of Exhibit I.<\/p>\n
(h) Payment of Fees and Expenses. Evidence that all fees,
\n costs and expenses (including Attorney Costs of the Administrative
\n Agent and the Syndication Agent) payable by the Borrower on or before
\n the Closing Date have been paid to the extent then invoiced.<\/p>\n
(i) Certificates.<\/p>\n
(i) Certificates signed by a Responsible Officer of
\n Holdings and the Borrower, dated the Closing Date stating
\n that:<\/p>\n
(A) The representations and warranties of
\n Holdings and the Borrower contained in Article VI and
\n in the other Loan Documents to which they are a party
\n are true and correct in all material respects on and
\n as of such date, as though made on and as of such
\n date (except to the extent such representations and
\n warranties expressly relate to an earlier date, in
\n which case such representations and warranties shall
\n be true and correct in all material respects as of
\n such earlier date);<\/p>\n
(B) no Default or Event of Default exists or
\n would result from any Borrowing on the Closing Date;
\n and<\/p>\n
(C) the conditions set forth in paragraphs
\n (k), (l) and (m)(i) of this Section 5.01 have been
\n satisfied; and<\/p>\n
(ii) Certificates signed by a Responsible Officer of
\n each of the Subsidiary Guarantors, dated as of the Closing
\n Date, stating that the representations and warranties of such
\n Subsidiary Guarantor contained in the <\/p>\n
-58-<\/p>\n
Subsidiary Guaranty, the Pledge Agreement and the Security
\n Agreement are true and correct in all material respects on and
\n as of such date, as though made on and as of such date (except
\n to the extent such representations and warranties expressly
\n relate to an earlier date, in which case such representations
\n and warranties shall be true and correct in all material
\n respects as of such earlier date).<\/p>\n
(j) Solvency Certificate. A solvency certificate from Mr. Anup
\n Bagaria, Vice President of Holdings in the form of Exhibit N.<\/p>\n
(k) Adverse Change. Since September 30, 1997, nothing shall
\n have occurred (and neither the Administrative Agent, the Syndication
\n Agent nor the Banks shall have become aware of any facts or conditions
\n not previously known) which the Administrative Agent, the Syndication
\n Agent or the Required Banks shall reasonably determine has had, or
\n could reasonably be expected to have, a Material Adverse Effect.<\/p>\n
(l) Governmental and Third Party Approvals. All governmental
\n and third party approvals and consents necessary in connection with
\n this Agreement and the other Loan Documents shall have been obtained
\n and be in full force and effect.<\/p>\n
(m) Litigation. There shall be no actions, suits or
\n proceedings pending or threatened (i) with respect to any Loan Document
\n or (ii) which the Administrative Agent, the Syndication Agent or the
\n Required Banks shall reasonably determine could reasonably be expected
\n to have a Material Adverse Effect.<\/p>\n
(n) Shareholders’ Agreements, Management Agreements and Tax
\n Sharing Agreements.<\/p>\n
(i) All agreements entered into by Holdings or any of
\n its Subsidiaries governing the terms and relative rights of
\n its capital stock and any agreements entered into by
\n shareholders relating to any such entity with respect to its
\n capital stock;<\/p>\n
(ii) all tax sharing, tax allocation or similar
\n agreements, if any, entered into by Holdings or any of its
\n Subsidiaries; and<\/p>\n
(iii) all material management and consulting
\n agreements entered into by Holdings or any of its
\n Subsidiaries.<\/p>\n
(o) Financial Statements.<\/p>\n
(i) The Pro Forma Balance Sheet;<\/p>\n
(ii) the Projections;<\/p>\n
(iii) the audited consolidated financial statements
\n of each of Old ALM and NLP for their 1995 and 1996 fiscal
\n years, (x) the unaudited consolidated financial statements
\n of Old ALM for the seven-month period ended July 31, 1997, <\/p>\n
-59-<\/p>\n
(y) the unaudited consolidated financial statements of NLP for
\n the nine-month period ended September 30, 1997 and (z) the
\n unaudited consolidated financial statements of the Borrower
\n for the two-month period ended September 30, 1997; and<\/p>\n
(iv) a draft of the audited consolidated financial
\n statements of Holdings for its fiscal year ended December 31,
\n 1997.<\/p>\n
(p) Insurance. Evidence of insurance complying with the
\n requirements of Section 7.05 for the business and properties of
\n Holdings and its Subsidiaries.<\/p>\n
5.02 Conditions to all Borrowings and the Issuance of any Letters of
\nCredit. The obligation of each Bank to make any Revolving Loan hereunder and the
\nobligation of each Issuing Bank to issue, renew or amend any Letter of Credit is
\nsubject to the satisfaction of the following conditions precedent on the
\nrelevant Borrowing Date or date of issuance, as the case may be:<\/p>\n
(a) Notice. The Administrative Agent shall have received a
\n Notice of Borrowing; or in the case of any issuance of any Letter of
\n Credit, the respective Issuing Bank and the Administrative Agent shall
\n have received a Letter of Credit Application, as required under Section
\n 3.02;<\/p>\n
(b) Continuation of Representations and Warranties. The
\n representations and warranties contained in Article VI and in the other
\n Loan Documents shall be true and correct in all material respects on
\n and as of such Borrowing Date or date of issuance (except to the extent
\n such representations and warranties expressly refer to an earlier date,
\n in which case they shall be true and correct in all material respects
\n as of such earlier date);<\/p>\n
(c) No Existing Default. No Default or Event of Default shall
\n exist or shall result from such Borrowing or issuance of such Letter of
\n Credit; and<\/p>\n
(d) No Material Adverse Effect. Since September 30, 1997, no
\n events have occurred which, individually or in the aggregate, have had,
\n or could reasonably be expected to have, a Material Adverse Effect.<\/p>\n
(e) Financial Statements. The Administrative Agent and the
\n Syndication Agent shall have received, and shall be reasonably
\n satisfied with, the draft of the audited consolidated financial
\n statements of Holdings for its fiscal year ended December 31, 1997.<\/p>\n
Each Notice of Borrowing or Letter of Credit Application submitted by the
\nBorrower hereunder shall be deemed to constitute a representation and warranty
\nby Holdings and the Borrower hereunder, as of the date of each such notice or
\napplication and as of the date of each Borrowing that the applicable conditions
\nin Section 5.01 (with respect to such credit events to occur on the <\/p>\n
-60-<\/p>\n
Closing Date) and in this Section 5.02 (with respect to credit events to occur
\non and after the Closing Date) are satisfied.<\/p>\n
ARTICLE VI.<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
Each of Holdings and the Borrower represents and warrants with respect
\nto itself and its Subsidiaries to the Administrative Agent, each Issuing Bank
\nand each Bank as of the Closing Date and as of the date of each Borrowing of
\nRevolving Loans or issuance, renewal or amendment of each Letter of Credit that:<\/p>\n
6.01 Existence and Power. Each of Holdings and each of its
\n Subsidiaries:<\/p>\n
(a) is a corporation, partnership or limited liability
\n company, as the case may be, duly organized, validly existing and in
\n good standing under the laws of the jurisdiction of its organization;<\/p>\n
(b) has the power and authority and has or will have on or
\n prior to the date required to be obtained all governmental licenses,
\n authorizations, consents and approvals to execute, deliver and perform
\n its obligations under the Loan Documents to which it is a party and has
\n duly executed and delivered each such Loan Document, in each case other
\n than filings necessary to perfect the security interest in the
\n Collateral under the Security Agreement (which filings have been made
\n to the extent that this representation and warranty is made (or deemed
\n made) after 10 days after the Closing Date);<\/p>\n
(c) is duly qualified to do business, and is licensed and in
\n good standing, under the laws of each jurisdiction where its ownership,
\n lease or operation of property or the nature or conduct of its business
\n requires such qualification or license except where the failure so to
\n qualify, either individually or in the aggregate, could not reasonably
\n be expected to have a Material Adverse Effect; and<\/p>\n
(d) is in compliance with all Requirements of Law, except to
\n the extent that the failure to do so, either individually or in the
\n aggregate, could not reasonably be expected to have a Material Adverse
\n Effect.<\/p>\n
6.02 Authorization; No Contravention. The execution, delivery and
\nperformance by each of Holdings and each of its Subsidiaries of any Loan
\nDocument to which such Person is party have been duly authorized by all
\nnecessary corporate, partnership or limited liability company action, as the
\ncase may be, and do not and will not:<\/p>\n
(a) contravene the terms of any of such Person’s charter or
\n by-laws (or equivalent organizational documents);<\/p>\n
-61-<\/p>\n
(b) conflict with or result in any breach or contravention of,
\n or the creation or imposition of (or the obligation to create or
\n impose) any Lien (except pursuant to the Collateral Documents) under,
\n any document evidencing any material Contractual Obligation to which
\n such Person is a party or any order, injunction, writ or decree of any
\n Governmental Authority to which such Person or its property is subject;
\n or<\/p>\n
(c) violate any Requirement of Law.<\/p>\n
6.03 Governmental Authorization. No approval, consent, exemption,
\nauthorization, or other action by, or notice to, or filing with, any
\nGovernmental Authority is necessary or required in connection with the
\nexecution, delivery or performance by, or enforcement against, Holdings or any
\nof its Subsidiaries of any Loan Document to which any such Person is a party, in
\neach case other than filings necessary to perfect the security interest in the
\nCollateral under the Security Agreement (which filings have been made to the
\nextent that this representation and warranty is made (or deemed made) after 10
\ndays after the Closing Date).<\/p>\n
6.04 Binding Effect. This Agreement and each other Loan Document to
\nwhich Holdings or any of its Subsidiaries is a party constitute the legal, valid
\nand binding obligations of Holdings and each of its Subsidiaries to the extent
\nsuch Person is a party thereto, enforceable against such Person in accordance
\nwith their respective terms, except to the extent that enforceability may be
\nlimited by applicable bankruptcy, insolvency or similar laws affecting the
\nenforcement of creditors’ rights generally or by equitable principles of general
\napplicability.<\/p>\n
6.05 Litigation. There are no actions, suits, proceedings, claims or
\ndisputes pending, or to the best knowledge of Holdings or the Borrower,
\nthreatened at law, in equity, in arbitration or before any Governmental
\nAuthority, against Holdings or any of its Subsidiaries or any of their
\nrespective properties or assets which:<\/p>\n
(a) purport to affect or pertain to this Agreement or any
\n other Loan Document; or<\/p>\n
(b) either individually or in the aggregate, could reasonably
\n be expected to have a Material Adverse Effect.<\/p>\n
6.06 No Default. No Default or Event of Default exists or would result
\nfrom the incurring of any Obligations by Holdings, the Borrower or any
\nSubsidiary Guarantor. Neither Holdings nor any of its Subsidiaries is in default
\nunder or with respect to any Contractual Obligation in any respect which, either
\nindividually or in the aggregate, could reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
6.07 ERISA Compliance. Schedule 6.07 sets forth, as of the Closing
\nDate, each Plan; each Plan (and each related trust, insurance contract or fund)
\nis in substantial compliance with its terms and with all applicable laws,
\nincluding, without limitation, ERISA and the Code; each Plan (and each related
\ntrust, if any) which is intended to be qualified under Section 401(a) of the
\nCode has received a determination letter from the Internal Revenue Service to
\nthe effect that it meets the requirements of Sections 401(a) and 501(a) of the
\nCode; no Reportable Event <\/p>\n
-62-<\/p>\n
has occurred; no Plan which is a multiemployer plan (as defined in Section
\n4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
\nCurrent Liability that is in excess of $100,000 and the aggregate Unfunded
\nCurrent Liabilities in respect of all Plans does not exceed $1,000,000; no Plan
\nwhich is subject to Section 412 of the Code or Section 302 of ERISA has an
\naccumulated funding deficiency, within the meaning of such sections of the Code
\nor ERISA, or has applied for or received a waiver of an accumulated funding
\ndeficiency or an extension of any amortization period, within the meaning of
\nSection 412 of the Code or Section 303 or 304 of ERISA; all contributions
\nrequired to be made with respect to a Plan have been timely made; neither
\nHoldings nor any Subsidiary of Holdings nor any ERISA Affiliate has incurred any
\nmaterial liability (including any indirect, contingent or secondary liability)
\nto or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
\n4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
\n4975 of the Code or expects to incur any such material liability under any of
\nthe foregoing sections with respect to any Plan; no condition exists which
\npresents a material risk to Holdings or any Subsidiary of Holdings or any ERISA
\nAffiliate of incurring a material liability to or on account of a Plan pursuant
\nto the foregoing provisions of ERISA and the Code; no proceedings have been
\ninstituted to terminate or appoint a trustee to administer any Plan which is
\nsubject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
\ninvestigation with respect to the administration, operation or the investment of
\nassets of any Plan (other than routine claims for benefits) is pending, expected
\nor threatened; using actuarial assumptions and computation methods consistent
\nwith Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of
\nHoldings and its Subsidiaries and its ERISA Affiliates to all Plans which are
\nmultiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
\na complete withdrawal therefrom, as of the close of the most recent fiscal year
\nof each such Plan ended prior to the Closing Date, or if later, the date of the
\nmost recent Borrowing Date or the date of the most recent issuance of a Letter
\nof Credit, would not exceed $250,000; each group health plan (as defined in
\nSection 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has
\ncovered employees or former employees of Holdings, any Subsidiary of Holdings or
\nany ERISA Affiliate has at all times been operated in substantial compliance
\nwith the provisions of Part 6 of subtitle B of Title I of ERISA and Section
\n4980B of the Code; no lien imposed under the Code or ERISA on the assets of
\nHoldings or any Subsidiary of Holdings or any ERISA Affiliate exists or is
\nlikely to arise on account of any Plan; and Holdings and its Subsidiaries may
\ncease contributions to or terminate any employee benefit plan maintained by any
\nof them without incurring any material liability.<\/p>\n
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Revolving
\nLoans are intended to be and shall be used solely for the purposes set forth in
\nand permitted by Section 7.13.<\/p>\n
6.09 Title to Properties. Holdings and each of its Subsidiaries have
\ngood record and marketable title in fee simple to, or valid leasehold interests
\nin, all material property owned or leased by them, free and clear of all Liens
\nother than Permitted Liens.<\/p>\n
6.10 Taxes. Each of Holdings and each of its Subsidiaries has filed all
\nfederal and state income tax returns and all other material tax returns,
\ndomestic and foreign, required to be filed by it (after giving effect to all
\nextensions duly obtained) and has paid all taxes and <\/p>\n
-63-<\/p>\n
assessments payable by it (after giving effect to all extensions duly obtained)
\nwhich have become due, except for taxes contested in good faith and adequately
\ndisclosed and fully provided for on the financial statements of Holdings and its
\nSubsidiaries in accordance with GAAP. Holdings and each of its Subsidiaries have
\nat all times paid, or have provided adequate reserves (in the good faith
\njudgment of the management of Holdings) for the payment of, all federal, state,
\nlocal and foreign income taxes applicable for all prior fiscal years and for the
\ncurrent fiscal year to date. There is no material action, suit, proceeding,
\ninvestigation, audit or claim now pending or, to the best knowledge of Holdings
\nand the Borrower threatened, by any authority regarding any taxes relating to
\nHoldings or any of its Subsidiaries. Except for extensions of the time to file
\ntax returns that have been duly obtained, as of the Closing Date, neither
\nHoldings nor any of its Subsidiaries has entered into an agreement or waiver or
\nbeen requested to enter into an agreement or waiver extending any statute of
\nlimitations relating to the payment or collection of taxes of Holdings or any of
\nits Subsidiaries, or is aware of any circumstances that would cause the taxable
\nyears or other taxable periods of Holdings or any of its Subsidiaries not to be
\nsubject to the normally applicable statute of limitations.<\/p>\n
6.11 Financial Statements. All balance sheets, statements of operations
\nand other financial data of Holdings and its Subsidiaries which have been or
\nshall hereafter be furnished to the Administrative Agent and the Banks for the
\npurposes of or in connection with this Agreement or any transaction contemplated
\nhereby have been prepared in accordance with GAAP and do and will present
\nfairly, in all material respects, the financial condition of Holdings and its
\nSubsidiaries as of the dates thereof and the results of their operations for the
\nperiod(s) covered thereby. The Projections which have been furnished by (or on
\nbehalf of) Holdings pursuant to Section 5.01(o)(ii) represent management’s good
\nfaith estimates of future performance based upon historical financial
\ninformation and assumptions which management believes to be reasonable, it being
\nrecognized that such projections are not to be viewed as facts and do not
\nconstitute a warranty as to the future performance of Holdings or its
\nSubsidiaries and that actual results may vary from projected results and such
\nvariances may be material.<\/p>\n
6.12 Securities Law, etc.; Compliance. All transactions contemplated by
\nthis Agreement and the other Loan Documents comply with (x) Regulations G, T, U
\nand X of the Federal Reserve Board and (y) all other applicable laws and any
\nrules and regulations thereunder.<\/p>\n
6.13 Governmental Regulation. Neither Holdings nor any of its
\nSubsidiaries is an “investment company” or a company “controlled” by an
\n“investment company” within the meaning of the Investment Company Act of 1940 or
\na “holding company”, or a “subsidiary company” of a “holding company”, or an
\n“affiliate” of a “holding company” or of a “subsidiary company” of a holding
\ncompany”, within the meaning of the Public Utility Holding Company Act of 1935.<\/p>\n
6.14 Labor Controversies. There are no labor controversies pending or,
\nto the best of Holdings’ and the Borrower’s knowledge, threatened against it or
\nany of its Subsidiaries which, either individually or in the aggregate, could
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
-64-<\/p>\n
6.15 Subsidiaries. Holdings has no Subsidiaries, except, on the Closing
\nDate, those Subsidiaries which are identified in Schedule 6.15 and, thereafter,
\nthose Subsidiaries permitted to be formed or acquired in compliance with the
\nterms hereof.<\/p>\n
6.16 Patents, Trademarks, etc. Each of Holdings and each of its
\nSubsidiaries owns (or is licensed to use) and possesses all such patents, patent
\nrights, trademarks, trademark rights, trade names, trade name rights, service
\nmarks, service mark rights, copyrights, permits, licenses and authorizations as
\nit considers necessary for the conduct of the business of Holdings and its
\nSubsidiaries as now conducted without, individually or in the aggregate, any
\ninfringement upon rights of other Persons which could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
6.17 Accuracy of Information. All factual information heretofore or
\ncontemporaneously herewith furnished by or on behalf of Holdings or any of its
\nSubsidiaries in writing to the Administrative Agent or any Bank for purposes of
\nor in connection with this Agreement or any transaction contemplated hereby and
\nall other such factual information hereafter furnished by or on behalf of
\nHoldings or any of its Subsidiaries to the Administrative Agent or any Bank will
\nbe, true and accurate in all material respects on the date as of which such
\ninformation is dated or certified and not incomplete by omitting to state any
\nmaterial fact necessary to make such information, in the light of the
\ncircumstances existing at the time such information was delivered, not
\nmisleading.<\/p>\n
6.18 Hazardous Materials. Neither Holdings nor any of its Subsidiaries
\nhave caused or permitted any Hazardous Material to be disposed of or otherwise
\nreleased, either from, on or under any property currently or formerly legally or
\nbeneficially owned, leased or operated by, or otherwise used by, Holdings or any
\nof its Subsidiaries, which, either individually or in the aggregate, has or
\ncould reasonably be expected to have a Material Adverse Effect. No such property
\nhas ever been used as a dump site or storage site for any Hazardous Materials or
\notherwise contains or contained Hazardous Materials, which, either individually
\nor in the aggregate, has or could reasonably be expected to have a Material
\nAdverse Effect. The failure, if any, of Holdings or any of its Subsidiaries, in
\nconnection with their current and former properties or their businesses, to be
\nin compliance with any Environmental Law or to obtain any permit, certificate,
\nlicense, approval and other authorization under such Environmental Laws has not
\nhad, nor is reasonably expected to have, either individually or in the
\naggregate, a Material Adverse Effect. Neither Holdings nor any of its
\nSubsidiaries have entered into, have agreed to or are subject to any judgment,
\ndecree or order or other similar requirement of any Governmental Authority under
\nany Environmental Law, including without limitation, relating to compliance or
\nto investigation, cleanup, remediation or removal of Hazardous Materials, which,
\neither individually or in the aggregate, has or could reasonably be expected to
\nhave a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries
\nhave contractually assumed any liabilities or obligations under any
\nEnvironmental Law which, either individually or in the aggregate, have or could
\nreasonably be expected to have a Material Adverse Effect. There are no facts or
\ncircumstances which exist that could reasonably be expected to give rise to
\nliabilities with respect to Hazardous Materials or any Environmental Law, which,
\neither individually or in the aggregate, have or could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
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6.19 Collateral Documents.<\/p>\n
(i) The provisions of the Pledge Agreement will be, on and
\n after the Closing Date, effective to create, in favor of the Collateral
\n Agent for the benefit of the Banks and the Collateral Agent, legal,
\n valid and enforceable security interests in all of the Collateral
\n described therein, and upon the taking of and continued possession of
\n such Collateral by the Collateral Agent on or prior to the Closing
\n Date, the Pledge Agreement shall constitute, as of and after the
\n Closing Date, a fully perfected security interest in such Collateral
\n superior in right to any other security interests, existing or future,
\n which any Person may have against such Collateral, except to the
\n extent, if any, otherwise provided in the Pledge Agreement; and<\/p>\n
(ii) the provisions of the Security Agreement are effective to
\n create in favor of the Collateral Agent for the benefit of the Banks
\n and the Collateral Agent, a legal, valid and enforceable security
\n interest in all right, title and interest in all of the Collateral
\n described therein, and the Security Agreement, upon the filing of Form
\n UCC-1 financing statements or the appropriate equivalent (which filing,
\n if this representation is being made more than 10 days after the
\n Closing Date, has been made), create a fully perfected first priority
\n lien on, and security interest in, all right, title and interest in all
\n of the Collateral described in the Security Agreement to the extent
\n that such security interests can be perfected by the filing of a
\n financing statement under the UCC or in which a filing may be made in
\n the United States Patent and Trademark Office or in the United States
\n Copyright Office, subject to no other Liens other than Permitted Liens.<\/p>\n
6.20 Solvency. On and as of the Closing Date and after giving effect to
\nall Indebtedness being incurred or assumed and Liens created by the Credit
\nParties in connection therewith and on and as of each Borrowing Date and after
\ngiving effect thereto (a) the sum of the assets, at a fair valuation on a
\ngoing-concern basis, of each of the Borrower on a stand-alone basis and of
\nHoldings and its Subsidiaries taken as a whole will exceed its debts; (b) each
\nof the Borrower on a stand-alone basis and Holdings and its Subsidiaries taken
\nas a whole has not incurred and does not intend to incur, and does not believe
\nthat it will incur, debts beyond its ability to pay such debts as such debts
\nmature; and (c) each of the Borrower on a stand alone basis and Holdings and its
\nSubsidiaries taken as a whole will have sufficient capital with which to conduct
\nits business. For purposes of this Section 6.20, “debt” means any liability on a
\nclaim, and “claim” means (i) right to payment, whether or not such a right is
\nreduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
\nunmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii)
\nright to an equitable remedy for breach of performance if such breach gives rise
\nto a payment, whether or not such right to an equitable remedy is reduced to
\njudgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
\nor unsecured. The amount of contingent liabilities at any time shall be computed
\nas the amount that, in the light of all the facts and circumstances existing at
\nsuch time, represents the amount that can reasonably be expected to become an
\nactual or matured liability.<\/p>\n
6.21 Representations and Warranties in the other Documents. All
\nrepresentations and warranties in the Acquisition Documents, in the Borrower
\nSenior Note Documents and in the <\/p>\n
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Holdings Senior Discount Note Documents were true and correct in all material
\nrespects at the time as of which such representations and warranties were made
\n(or deemed made).<\/p>\n
6.22 Capitalization.<\/p>\n
(a) On the Closing Date, the authorized capital stock of
\n Holdings consists of 200,000 shares of common stock, $.01 par value per
\n share (“Holdings Common Stock”), of which 100,000 shares issued and
\n outstanding. All outstanding shares of capital stock of Holdings have
\n been duly and validly issued and are fully paid and non-assessable.
\n Holdings does not have outstanding any securities convertible into or
\n exchangeable for its capital stock or outstanding any rights to
\n subscribe for or to purchase, or any options for the purchase of, or
\n any agreement providing for the issuance (contingent or otherwise) of,
\n or any calls, commitments or claims of any character relating to, its
\n capital stock, except (i) for options to purchase shares of Holdings’
\n Common Stock which may be issued from time to time to directors,
\n officers and employees of Holdings or any of its Subsidiaries and (ii)
\n as may be set forth in any of the shareholders’ agreements delivered
\n pursuant to Section 5.01(n).<\/p>\n
(b) On the Closing Date, the authorized capital stock of the
\n Borrower consists of 1,000 shares of common stock, $.01 par value per
\n share, all of which are issued and outstanding and owned by Holdings.
\n All outstanding shares of capital stock of the Borrower have been duly
\n and validly issued, are fully paid and nonassessable. The Borrower does
\n not have outstanding any securities convertible into or exchangeable
\n for its capital stock or outstanding any rights to subscribe for or to
\n purchase, or any options for the purchase of, or any agreement
\n providing for the issuance (contingent or otherwise) of, or any calls,
\n commitments or claims of any character relating to, its capital stock.<\/p>\n
6.23 Special Purpose Corporation. Holdings engages in no significant
\nbusiness activities and has no significant assets (other than the capital stock
\nof the Borrower, immaterial assets used for the performance of those activities
\npermitted to be performed by Holdings pursuant to Section 8.13(b) and any
\nobligations held by it to the extent permitted by Section 8.05(vi)) or material
\nliabilities (other than those incurred under this Agreement, under the other
\nLoan Documents to which it is a party and under the Holdings Senior Discount
\nNote Documents).<\/p>\n
6.24 Insurance. Schedule 6.24 sets forth a true and complete listing of
\nall insurance maintained by Holdings and its Subsidiaries as of the Closing
\nDate, and with the amounts insured (and any deductibles) set forth therein.<\/p>\n
ARTICLE VII.<\/p>\n
AFFIRMATIVE COVENANTS<\/p>\n
Each of Holdings and the Borrower agrees with the Administrative Agent
\nand each Bank that, until all Revolving Commitments and Letters of Credit have
\nterminated and all <\/p>\n
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Obligations (other than indemnities for which no request for payment has been
\nmade) have been paid and performed in full:<\/p>\n
7.01 Financial Statements. Holdings and the Borrower shall deliver to
\nthe Administrative Agent and each Bank in form and detail reasonably
\nsatisfactory to the Administrative Agent and the Required Banks:<\/p>\n
(a) as soon as available, but not later than 90 days after the
\n end of each fiscal year of Holdings, (i) a copy of the consolidated and
\n consolidating balance sheets of Holdings and its Subsidiaries as at the
\n end of such fiscal year and the related consolidated and consolidating
\n statements of income or operations, shareholders’ equity and cash flows
\n for such fiscal year, setting forth in each case in comparative form
\n the figures for the previous fiscal year, and (x) in the case of the
\n consolidated financial statements, certified by Arthur Andersen L.L.P.
\n or another nationally-recognized independent public accounting firm
\n reasonably acceptable to the Administrative Agent, together with a
\n report of such accounting firm stating that in the course of its
\n regular audit of the financial statements of Holdings and its
\n Subsidiaries, which audit was conducted in accordance with generally
\n accepted auditing standards, such accounting firm obtained no knowledge
\n of any Default or Event of Default which has occurred and is continuing
\n or, if in the opinion of such accounting firm a Default or an Event of
\n Default has occurred and is continuing, a statement as to the nature
\n thereof, and (y) in the case of the consolidating financial statements,
\n certified by a Responsible Officer of Holdings as being complete and
\n correct and fairly presenting in all material respects, in accordance
\n with GAAP, the financial position and the results of operations of
\n Holdings and its Subsidiaries, and (ii) management’s discussion and
\n analyses of the material operational and financial developments during
\n such fiscal year. The accountant’s opinion referred to above shall not
\n be qualified or limited because of a restricted or limited examination
\n by such accountant of any material portion of the records of Holdings
\n or any of its Subsidiaries;<\/p>\n
(b) as soon as available, but not later than 45 days after the
\n end of each of the first three fiscal quarters of each fiscal year of
\n Holdings, (i) a copy of the unaudited consolidated and consolidating
\n balance sheets of Holdings and its Subsidiaries as of the end of such
\n fiscal quarter and the related consolidated and consolidating
\n statements of income or operations, shareholders’ equity and cash flows
\n for the period commencing on the first day and ending on the last day
\n of such fiscal quarter and for the elapsed portion of the fiscal year
\n ended with the last day of such fiscal quarter, and certified by a
\n Responsible Officer of Holdings as being complete and correct and
\n fairly presenting in all material respects, in accordance with GAAP
\n (subject to normal year-end audit adjustments and the absence of
\n footnote disclosure), the financial position and the results of
\n operations of Holdings and its Subsidiaries, and (ii) management’s
\n discussion and analyses of the material operational and financial
\n developments during such fiscal quarter and for the elapsed portion of
\n the fiscal year ended with the last day of such fiscal quarter;<\/p>\n
(c) as soon as available, but not later than 30 days after the
\n end of each fiscal month of each fiscal year of Holdings (other than
\n the last fiscal month of any fiscal <\/p>\n
-68-<\/p>\n
quarter) a copy of the unaudited consolidated and consolidating balance
\n sheets of Holdings and its Subsidiaries as at the end of such fiscal
\n month and the related consolidated and consolidating statements of
\n income and cash flows for such fiscal month and for the elapsed portion
\n of the fiscal year ended with the last day of such fiscal month, in
\n each case setting forth comparative figures for the corresponding
\n fiscal month in the prior fiscal year and comparable budgeted figures
\n for such fiscal month, provided, however, monthly consolidated
\n financial statements only have to be delivered pursuant to this Section
\n 7.01 (c) from and after Holdings’ fiscal month ending October 31, 1998;
\n and<\/p>\n
(d) as soon as available, but not later than 30 days following
\n the first day of each fiscal year of Holdings, a budget (including
\n budgeted statements of income and sources and uses of cash and balance
\n sheets) prepared by Holdings for each of the twelve months of such
\n fiscal year prepared in reasonable detail.<\/p>\n
7.02 Certificates; Other Information. Holdings and the
\n Borrower shall furnish to the Administrative Agent and each Bank:<\/p>\n
(a) concurrently with the delivery of the financial statements
\n referred to in Sections 7.01(a) and (b), a Compliance Certificate;<\/p>\n
(b) to the extent not previously delivered with respect to any
\n Adjustment Date, concurrently with the delivery of the financial
\n statements referred to in Sections 7.01(a) and (b), a Total Leverage
\n Ratio Certificate duly executed by a Responsible Officer of Holdings;<\/p>\n
(c) promptly after Holdings’ or any of its Subsidiaries’
\n receipt thereof, a copy of any “management letter” received from its
\n certified public accountants and management’s response thereto;<\/p>\n
(d) promptly after the same are sent, copies of all financial
\n statements and reports which Holdings sends to its shareholders
\n generally; and promptly after the same are filed, copies of all
\n financial statements and regular, periodical or special reports which
\n Holdings or any of its Subsidiaries may make to, or file with, the
\n Securities and Exchange Commission; and<\/p>\n
(e) promptly, such additional business, financial and other
\n information with respect to Holdings or any of its Subsidiaries as the
\n Administrative Agent or any Bank may from time to time reasonably
\n request.<\/p>\n
7.03 Notices. Holdings and the Borrower shall, promptly upon (and in
\nany event within five days after) any Responsible Officer of Holdings or the
\nBorrower obtaining knowledge thereof, give notice (accompanied by a reasonably
\ndetailed explanation with respect thereto) promptly to the Administrative Agent,
\neach Issuing Bank and each Bank of:<\/p>\n
(a) the occurrence of any Default or Event of Default;<\/p>\n
-69-<\/p>\n
(b) any litigation, arbitration or governmental investigation
\n or proceeding which has been instituted or, to the knowledge of a
\n Responsible Officer of Holdings or the Borrower, is threatened against
\n Holdings or any of its Subsidiaries or to which any of their respective
\n properties is subject (i) which could reasonably be expected to result
\n in a Material Adverse Effect or (ii) relates to this Agreement, any
\n other Loan Document or any of the transactions contemplated hereby;<\/p>\n
(c) one or more of the following environmental matters, unless
\n such environmental matters could not, individually or when aggregated
\n with all other such environmental matters, be reasonably expected to
\n have a Material Adverse Effect:<\/p>\n
(i) any pending or, to the knowledge of a Responsible
\n Officer of Holdings or the Borrower, threatened Environmental
\n Claim against Holdings or any of its Subsidiaries or any real
\n property owned, leased or operated by Holdings or any of its
\n Subsidiaries;<\/p>\n
(ii) any condition or occurrence on or arising from
\n any real property owned, leased or operated by Holdings or any
\n of its Subsidiaries that (a) results in noncompliance by
\n Holdings or any of its Subsidiaries with any applicable
\n Environmental Law or (b) could be expected to form the basis
\n of an Environmental Claim against Holdings or any of its
\n Subsidiaries or any such real property;<\/p>\n
(iii) any condition or occurrence on any real
\n property owned, leased or operated by Holdings or any of its
\n Subsidiaries that could be expected to cause such real
\n property to be subject to any restrictions on the ownership,
\n occupancy, use or transferability by Holdings or any of its
\n Subsidiaries of such real property under any Environmental
\n Law; and<\/p>\n
(iv) the taking of any removal or remedial action in
\n response to the actual or alleged presence of any Hazardous
\n Material on any real property owned, leased or operated by
\n Holdings or any of its Subsidiaries as required by any
\n Environmental Law or any governmental or other administrative
\n agency; provided, that in any event Holdings shall deliver to
\n the Administrative Agent and each Bank all notices received by
\n Holdings or any of its Subsidiaries from any government or
\n governmental agency under, or pursuant to, CERCLA which
\n identify Holdings or any of its Subsidiaries as potentially
\n responsible parties for remediation costs or which otherwise
\n notify Holdings or any of its Subsidiaries of potential
\n liability under CERCLA; and<\/p>\n
(d) that a Reportable Event has occurred (except to the extent that
\nHoldings has previously delivered to the Banks a certificate and notices (if
\nany) concerning such event pursuant to the next clause hereof); that a
\ncontributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
\nsubject to Title IV of ERISA is subject to the advance reporting requirement of
\nPBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
\nand an event described in subsection .62, .63, .64, .65, .66, <\/p>\n
-70-<\/p>\n
.67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with
\nrespect to such Plan within the following 30 days; that an accumulated funding
\ndeficiency, within the meaning of Section 412 of the Code or Section 302 of
\nERISA, has been incurred or an application may be or has been made for a waiver
\nor modification of the minimum funding standard (including any required
\ninstallment payments) or an extension of any amortization period under Section
\n412 of the Code or Section 303 or 304 of ERISA with respect to a Plan; that any
\ncontribution required to be made with respect to a Plan has not been timely
\nmade; that a Plan has been or may be terminated, reorganized, partitioned or
\ndeclared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
\nLiability; that proceedings may be or have been instituted to terminate or
\nappoint a trustee to administer a Plan which is subject to Title IV of ERISA;
\nthat a proceeding has been instituted pursuant to Section 515 of ERISA to
\ncollect a delinquent contribution to a Plan; that Holdings, any Subsidiary of
\nHoldings or any ERISA Affiliate will or may incur any liability (including any
\nindirect, contingent, or secondary liability) to or on account of the
\ntermination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
\n4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
\n4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with
\nrespect to a group health plan (as defined in Section 607(1) of ERISA or Section
\n4980B(g)(2) of the Code) under Section 4980B of the Code; or that Holdings or
\nany Subsidiary of Holdings may incur any material liability pursuant to any
\nemployee welfare benefit plan (as defined in Section 3(1) of ERISA) that
\nprovides benefits to retired employees or other former employees (other than as
\nrequired by Section 601 of ERISA) or any Plan. Holdings will deliver to each of
\nthe Banks copies of any records, documents or other information that must be
\nfurnished to the PBGC with respect to any Plan pursuant to Section 4010 of
\nERISA. Holdings will also deliver to each of the Banks a complete copy of the
\nannual report (on Internal Revenue Service Form 5500-series) of each Plan
\n(including, to the extent required, the related financial and actuarial
\nstatements and opinions and other supporting statements, certifications,
\nschedules and information) required to be filed with the Internal Revenue
\nService. In addition to any certificates or notices delivered to the Banks
\npursuant to the first sentence hereof, copies of annual reports and any records,
\ndocuments or other information required to be furnished to the PBGC, and any
\nmaterial notices received by Holdings, any Subsidiary of Holdings or any ERISA
\nAffiliate with respect to any Plan shall be delivered to the Banks no later than
\nten (10) days after the date such annual report has been filed with the Internal
\nRevenue Service or such records, documents and\/or information has been furnished
\nto the PBGC or such notice has been received by Holdings, the Subsidiary or the
\nERISA Affiliate, as applicable.<\/p>\n
7.04 Books, Records and Inspections; Annual Meetings.<\/p>\n
(a) Holdings shall, and shall cause each of
\n its Subsidiaries to, keep proper books of record and accounts in which
\n full, true and correct entries in conformity with GAAP and all
\n requirements of law shall be made of all dealings and transactions in
\n relation to its business and activities. Holdings shall, and shall
\n cause each of its Subsidiaries to, permit officers and designated
\n representatives of the Administrative <\/p>\n
-71-<\/p>\n
Agent or any Bank to visit and inspect, under guidance of officers of
\n Holdings or such Subsidiary, any of the properties of Holdings or such
\n Subsidiary and, under guidance of officers of Holdings or such
\n Subsidiary, to examine the books of account of Holdings or such
\n Subsidiary and discuss the affairs, finances and accounts of Holdings
\n or such Subsidiary with, and be advised as to the same by, its and
\n their officers and independent accountants, all upon reasonable prior
\n notice and at such reasonable times and intervals and to such
\n reasonable extent as the Administrative Agent or such Bank may
\n reasonably request.<\/p>\n
(b) At a date to be mutually agreed upon between the
\n Administrative Agent and Holdings occurring on or prior to the 120th
\n day after the close of each fiscal year of Holdings, Holdings shall, at
\n the request of the Administrative Agent, hold a meeting with all of the
\n Banks at which meeting shall be reviewed the financial results of
\n Holdings and its Subsidiaries for the previous fiscal year and the
\n budgets presented for the current fiscal year of Holdings.<\/p>\n
7.05 Maintenance of Property; Insurance.<\/p>\n
(a) Holdings shall, and shall cause each of its Subsidiaries
\n to, (i) keep all property necessary to the business of Holdings and its
\n Subsidiaries in reasonably good working order and condition, ordinary
\n wear and tear excepted, (ii) maintain with financially sound and
\n reputable insurance companies insurance on all such property in at
\n least such amounts and against at least such risks as is consistent and
\n in accordance with industry practice for companies similarly situated
\n owning similar properties in the same general areas in which Holdings
\n or any of its Subsidiaries operates, and (iii) furnish to the
\n Administrative Agent, on each date on which financial statements are
\n delivered pursuant to Section 7.01(a), full information as to the
\n insurance carried.<\/p>\n
(b) Holdings shall, and shall cause each of its Subsidiaries
\n to, at all times keep its property insured in favor of the Collateral
\n Agent, and all policies or certificates of an insurance broker (or
\n certified copies thereof) with respect to such insurance (and any other
\n insurance maintained by Holdings and\/or such Subsidiaries) (i) shall be
\n endorsed for the benefit of the Collateral Agent (including, without
\n limitation, by naming the Collateral Agent as loss payee and\/or
\n additional insured), (ii) shall state that such insurance policies
\n shall not be cancelled without at least 30 days’ prior written notice
\n thereof (or 10 days’ prior written notice in the case of nonpayment of
\n premium) by the respective insurer to the Collateral Agent (or such
\n shorter period of time as a particular insurance company policy
\n generally provides) and (iii) shall be deposited with the Collateral
\n Agent.<\/p>\n
(c) If Holdings or any of its Subsidiaries shall fail to
\n insure its property in accordance with this Section 7.05, or if
\n Holdings or any of its Subsidiaries shall fail to so endorse and
\n deposit all policies or certificates with respect thereto, the
\n Collateral Agent shall have the right (but shall be under no
\n obligation) to procure such insurance and <\/p>\n
-72-<\/p>\n
Holdings and the Borrower agree to reimburse the Collateral Agent for
\n all reasonable costs and expenses of procuring such insurance.<\/p>\n
7.06 Corporate Franchises. Holdings shall, and shall cause each of its
\nSubsidiaries to, do or cause to be done, all things necessary to preserve and
\nkeep in full force and effect its existence and its material rights, franchises,
\nlicenses and patents; provided, however, that nothing in this Section 7.06 shall
\nprevent (i) sales of assets and other transactions by Holdings or any of its
\nSubsidiaries in accordance with Section 8.02 or (ii) the withdrawal by Holdings
\nor any of its Subsidiaries of its qualification as a foreign corporation in any
\njurisdiction where such withdrawal, either individually or in the aggregate,
\ncould not reasonably be expected to have a Material Adverse Effect.<\/p>\n
7.07 Compliance with Law; Contractual Obligations. Holdings shall, and
\nshall cause each of its Subsidiaries to, comply with all Requirements of Law of
\nany Governmental Authority and with all Contractual Obligations, except such
\nnoncompliances as could not, individually or in the aggregate, reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
7.08 Payment of Taxes. Holdings shall pay and discharge, and shall
\ncause each of its Subsidiaries to pay and discharge, all taxes, assessments and
\ngovernmental charges or levies imposed upon it or upon its income or profits, or
\nupon any properties belonging to it, prior to the date on which penalties attach
\nthereto, and all lawful claims for sums that have become due and payable which,
\nif unpaid, might become a Lien not otherwise permitted under Section 8.01(i);
\nprovided, that neither Holdings nor any of its Subsidiaries shall be required to
\npay any such tax, assessment, charge, levy or claim which is being contested in
\ngood faith and by proper proceedings if it has maintained adequate reserves with
\nrespect thereto in accordance with GAAP.<\/p>\n
7.09 Contributions. Holdings shall contribute as a common equity
\ncontribution to the capital of the Borrower upon its receipt thereof, any cash
\nproceeds received by Holdings after the Closing Date from any asset sale, any
\nincurrence of Indebtedness, any Recovery Event, any sale or issuance of its
\nequity, any cash capital contributions received by Holdings or any tax refund
\nreceived by Holdings.<\/p>\n
7.10 End of Fiscal Years; Fiscal Quarters. Holdings shall, for
\nfinancial reporting purposes, cause (i) each of its, and each of its
\nSubsidiaries’, fiscal years to end on December 31 of each year and (ii) each of
\nits, and each of its Subsidiaries’, fiscal quarters to end on March 31, June 30,
\nSeptember 30 and December 31 of each year.<\/p>\n
7.11 Additional Security; Further Assurances. (a) Holdings shall, and
\nshall cause each of the other Credit Parties to, grant to the Collateral Agent
\nsecurity interests and mortgages in such material assets and properties of
\nHoldings and the other Credit Parties as are not covered by the original
\nSecurity Documents, and as may be reasonably requested from time to time by the
\nAdministrative Agent or the Required Banks (collectively, the “Additional
\nSecurity Documents”). All such security interests and mortgages shall be granted
\npursuant to documentation reasonably satisfactory in form and substance to the
\nAdministrative Agent and shall constitute valid and enforceable perfected
\nsecurity interests and mortgages superior to and <\/p>\n
-73-<\/p>\n
prior to the rights of all third Persons and subject to no other Liens except
\nfor Permitted Liens. The Additional Security Documents or instruments related
\nthereto shall have been duly recorded or filed in such manner and in such places
\nas are required by law to establish, perfect, preserve and protect the Liens in
\nfavor of the Collateral Agent required to be granted pursuant to the Additional
\nSecurity Documents and all taxes, fees and other charges payable in connection
\ntherewith shall have been paid in full.<\/p>\n
(b) Holdings shall, and shall cause each of the other Credit Parties
\nto, at the expense of Holdings and the Borrower, make, execute, endorse,
\nacknowledge, file and\/or deliver to the Collateral Agent from time to time such
\nvouchers, invoices, schedules, confirmatory assignments, conveyances, financing
\nstatements, transfer endorsements, powers of attorney, certificates, real
\nproperty surveys, reports and other assurances or instruments and take such
\nfurther steps relating to the Collateral covered by any of the Security
\nDocuments as the Collateral Agent may reasonably require. Furthermore, Holdings
\nand the Borrower will cause to be delivered to the Collateral Agent such
\nopinions of counsel, title insurance and other related documents as may be
\nreasonably requested by the Administrative Agent to assure itself that this
\nSection 7.11 has been complied with.<\/p>\n
(c) Holdings and the Borrower agree that each action required above by
\nthis Section 7.11 shall be completed as soon as possible, but in no event later
\nthan 90 days after such action is either requested to be taken by the
\nAdministrative Agent or the Required Banks or required to be taken by Holdings
\nand\/or the other Credit Parties pursuant to the terms of this Section 7.11;
\nprovided that, in no event, will Holdings or any of its Subsidiaries be required
\nto take any action, other than using its best efforts, to obtain consents from
\nthird parties with respect to its compliance with this Section 7.11.<\/p>\n
7.12 Foreign Subsidiaries Security. If following a change in the
\nrelevant sections of the Code or the regulations, rules, rulings, notices or
\nother official pronouncements issued or promulgated thereunder, counsel for the
\nBorrower reasonably acceptable to the Administrative Agent does not within 30
\ndays after a request from the Administrative Agent or the Required Banks deliver
\nevidence, in form and substance mutually satisfactory to the Administrative
\nAgent and the Borrower, with respect to any Foreign Subsidiary which has not
\nalready had all of its stock pledged pursuant to the Pledge Agreement that (i) a
\npledge (x) of 66-2\/3% or more of the total combined voting power of all classes
\nof capital stock of such Foreign Subsidiary entitled to vote, and (y) of any
\npromissory note issued by such Foreign Subsidiary to Holdings or any of its
\nDomestic Subsidiaries, (ii) the entering into by such Foreign Subsidiary of a
\nsecurity agreement in substantially the form of the Security Agreement and (iii)
\nthe entering into by such Foreign Subsidiary of a guaranty in substantially the
\nform of the Subsidiary Guaranty, in any such case could reasonably be expected
\nto cause the undistributed earnings of such Foreign Subsidiary as determined for
\nFederal income tax purposes to be treated as a deemed dividend to such Foreign
\nSubsidiary’s United States parent for Federal income tax purposes, then in the
\ncase of a failure to deliver the evidence described in clause (i) above, that
\nportion of such Foreign Subsidiary’s outstanding capital stock or any promissory
\nnotes so issued by such Foreign Subsidiary, in each case not theretofore pledged
\npursuant to the Pledge Agreement shall be pledged to the Collateral Agent for
\nthe benefit of the Banks pursuant to the Pledge Agreement (or another pledge<\/p>\n
-74-<\/p>\n
agreement in substantially similar form, if needed), and in the case of a
\nfailure to deliver the evidence described in clause (ii) above, such Foreign
\nSubsidiary shall execute and deliver the Security Agreement (or another security
\nagreement in substantially similar form, if needed), granting the Collateral
\nAgent for the benefit of the Banks a security interest in all of such Foreign
\nSubsidiary’s assets and securing the Obligations of the Borrower under the Loan
\nDocuments and, in the event the Subsidiary Guaranty shall have been executed by
\nsuch Foreign Subsidiary, the obligations of such Foreign Subsidiary thereunder,
\nand in the case of a failure to deliver the evidence described in clause (iii)
\nabove, such Foreign Subsidiary shall execute and deliver the Subsidiary Guaranty
\n(or another guaranty in substantially similar form, if needed), guaranteeing the
\nObligations of the Borrower under the Loan Documents, in each case to the extent
\nthat the entering into such Security Agreement or Subsidiary Guaranty is
\npermitted by the laws of the respective foreign jurisdiction and with all
\ndocuments delivered pursuant to this Section 7.12 to be in form and substance
\nreasonably satisfactory to the Administrative Agent.<\/p>\n
7.13 Use of Proceeds; Margin Regulations.<\/p>\n
(a) All proceeds of the Revolving Loans shall be used for the
\n working capital and general corporate purposes of the Borrower and its
\n Subsidiaries, including to make Permitted Acquisitions.<\/p>\n
(b) Holdings and the Borrower shall ensure that no part of any
\n Revolving Loan or Letter of Credit will be used to purchase or carry
\n any Margin Stock or to extend credit for the purpose of purchasing or
\n carrying any Margin Stock or will violate or be inconsistent with the
\n provisions of Regulations G, T, U and X of the Federal Reserve Board.<\/p>\n
ARTICLE VIII.<\/p>\n
NEGATIVE COVENANTS<\/p>\n
Each of Holdings and the Borrower agrees with the Administrative Agent
\nand each Bank that, until all Revolving Commitments and Letters of Credit have
\nterminated and all Obligations (other than indemnities for which no request for
\npayment has been made) have been paid and performed in full:<\/p>\n
8.01 Liens. Holdings will not, and will not permit any of its
\nSubsidiaries to, create, incur, assume, or suffer to exist any Lien upon or with
\nrespect to any property or assets (real or personal, tangible or intangible) of
\nHoldings or any of its Subsidiaries, whether now owned or hereafter acquired, or
\nsell any such property or assets subject to an understanding or agreement,
\ncontingent or otherwise, to repurchase such property or assets (including sales
\nof accounts receivable with recourse to Holdings or any of its Subsidiaries), or
\nassign any right to receive income or permit the filing of any financing
\nstatement under the UCC or any other similar notice of Lien under any similar
\nrecording or notice statute; provided that the provisions of this Section 8.01
\nshall not prevent the creation, incurrence, assumption or existence of the
\nfollowing (Liens described below are herein referred to as “Permitted Liens”):<\/p>\n
-75-<\/p>\n
(i) inchoate Liens for taxes, assessments or governmental
\n charges or levies not yet due or Liens for taxes, assessments or
\n governmental charges or levies being contested in good faith and by
\n appropriate proceedings for which adequate reserves have been
\n established in accordance with GAAP;<\/p>\n
(ii) Liens in respect of property or assets of Holdings or any
\n of its Subsidiaries imposed by law, which were incurred in the ordinary
\n course of business and do not secure Indebtedness for borrowed money,
\n such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens
\n and other similar Liens arising in the ordinary course of business, and
\n (x) which do not in the aggregate materially detract from the value of
\n Holdings’ or such Subsidiary’s property or assets or materially impair
\n the use thereof in the operation of the business of Holdings or such
\n Subsidiary or (y) which are being contested in good faith by
\n appropriate proceedings, which proceedings have the effect of
\n preventing the forfeiture or sale of the property or assets subject to
\n any such Lien;<\/p>\n
(iii) Liens in existence on the Closing Date which are listed,
\n and the property subject thereto described, in Schedule 8.01, but only
\n to the respective date, if any, set forth in such Schedule 8.01 for the
\n removal, replacement and termination of any such Liens, plus renewals,
\n replacements and extensions of such Liens to the extent set forth on
\n Schedule 8.01, provided that (x) the aggregate principal amount of the
\n Indebtedness, if any, secured by such Liens does not increase from that
\n amount outstanding at the time of any such renewal, replacement or
\n extension and (y) any such renewal, replacement or extension does not
\n encumber any additional assets or properties of Holdings or any of its
\n Subsidiaries;<\/p>\n
(iv) Liens created pursuant to the Collateral Documents;<\/p>\n
(v) licenses, sublicenses, leases or subleases granted to
\n other Persons not materially interfering with the conduct of the
\n business of Holdings or any of its Subsidiaries;<\/p>\n
(vi) Liens upon assets of the Borrower or any of its
\n Subsidiaries subject to Capital Lease Obligations to the extent such
\n Capital Lease Obligations are permitted by Section 8.04(iv), provided
\n that (x) such Liens only serve to secure the payment of Indebtedness
\n arising under such Capital Lease Obligation and (y) the Lien
\n encumbering the asset giving rise to the Capital Lease Obligation does
\n not encumber any other asset of Holdings or any of its Subsidiaries;<\/p>\n
(vii)Liens placed upon property acquired after the Closing
\n Date and used in the ordinary course of business of the Borrower or any
\n of its Subsidiaries at the time of the acquisition thereof by the
\n Borrower or any such Subsidiary or within 90 days thereafter to secure
\n Indebtedness incurred to pay all or a portion of the purchase price
\n thereof or to secure Indebtedness incurred solely for the purpose of
\n financing the acquisition of any such property or extensions, renewals
\n or replacements of any of the foregoing for the same or a lesser
\n amount, provided that (x) the aggregate outstanding principal amount of
\n all Indebtedness secured by Liens permitted by this clause (vii), when
\n added to the <\/p>\n
-76-<\/p>\n
aggregate outstanding principal of all Indebtedness secured by Liens
\n permitted under clause (vi) of this Section 8.01, shall not at any time
\n outstanding exceed $5,000,000 and (y) in all events, the Lien
\n encumbering the property so acquired does not encumber any other asset
\n of Holdings or any of its Subsidiaries;<\/p>\n
(viii) easements, rights-of-way, restrictions, zoning rights,
\n encroachments and other similar charges or encumbrances, and minor
\n title deficiencies, in each case not securing Indebtedness and not
\n materially interfering with the conduct of the business of Holdings or
\n any of its Subsidiaries;<\/p>\n
(ix) Liens arising from precautionary UCC financing statement
\n filings regarding operating leases;<\/p>\n
(x) statutory and common law landlords’ liens under leases to
\n which Holdings or any of its Subsidiaries is a party;<\/p>\n
(xi) (x) Liens (other than Liens imposed under ERISA) incurred
\n in the ordinary course of business in connection with workers
\n compensation claims, unemployment insurance and social security
\n benefits and (y) Liens securing the performance of bids, tenders,
\n leases and contracts in the ordinary course of business, statutory
\n obligations, surety bonds, performance bonds and other obligations of a
\n like nature incurred in the ordinary course of business (exclusive of
\n obligations in respect of the payment for borrowed money), provided
\n that the aggregate outstanding amount of obligations secured by Liens
\n permitted by this clause (xi)(y) (and the value of all cash and
\n property encumbered by Liens permitted pursuant to this clause (xi)(y))
\n shall not at any time exceed $1,000,000; and<\/p>\n
(xii)Liens on property or assets acquired pursuant to a
\n Permitted Acquisition, or on property or assets of a Subsidiary of the
\n Borrower in existence at the time such Subsidiary is acquired pursuant
\n to a Permitted Acquisition, provided that (i) any Indebtedness that is
\n secured by such Liens is permitted to exist under Section 8.04(ix) and
\n (ii) such Liens are not incurred in connection with or anticipation of
\n such Permitted Acquisition and do not attach to any other asset of
\n Holdings or any of its Subsidiaries.<\/p>\n
In connection with the granting of Liens of the type described in clauses (vi)
\nand (vii) of this Section 8.01 by the Borrower or any of its Subsidiaries, the
\nAdministrative Agent and the Collateral Agent shall be authorized to take any
\nactions deemed appropriate by it in connection therewith (including, without
\nlimitation, by executing appropriate lien releases or lien subordination
\nagreements in favor of the holder or holders of such Liens, in either case
\nsolely with respect to the item or items of equipment or other assets subject to
\nsuch Liens).<\/p>\n
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings
\nwill not, and will not permit any of its Subsidiaries to, wind up, liquidate or
\ndissolve its affairs or enter into any transaction of merger or consolidation,
\nor convey, sell, lease or otherwise dispose of all or any part of its property
\nor assets, or enter into any sale-leaseback transactions, or purchase or
\notherwise acquire (in one or a series of related transactions) any part of the
\nproperty or assets <\/p>\n
-77-<\/p>\n
(other than purchases or other acquisitions of inventory, materials and
\nequipment in the ordinary course of business) of any Person (or agree to do any
\nof the foregoing at any future time), except that:<\/p>\n
(i) Capital Expenditures by the Borrower and its Subsidiaries
\n shall be permitted (although any Capital Expenditures constituting a
\n Permitted Acquisition shall be governed by clause (ix) of this Section
\n 8.02 and not by this clause (i));<\/p>\n
(ii) each of the Borrower and its Subsidiaries may make sales
\n of inventory in the ordinary course of business;<\/p>\n
(iii) each of the Borrower and its Subsidiaries may sell
\n obsolete or worn-out equipment or materials;<\/p>\n
(iv) each of the Borrower and its Subsidiaries may sell assets
\n (other than the capital stock of any Subsidiary Guarantor), so long as
\n (w) no Default or Event of Default then exists or would result
\n therefrom, (x) each such sale is in an arm’s-length transaction and the
\n Borrower or the respective Subsidiary receives at least fair market
\n value (as determined in good faith by the Borrower or such Subsidiary,
\n as the case may be), (y) at least 85% of the total consideration
\n received by the Borrower or such Subsidiary is cash and is paid at the
\n time of the closing of such sale, and (z) the aggregate amount of the
\n proceeds received from all assets sold pursuant to this clause (iv)
\n shall not exceed $5,000,000 in any fiscal year of the Borrower;<\/p>\n
(v) Investments may be made to the extent permitted by Section
\n 8.05;<\/p>\n
(vi) each of the Borrower and its Subsidiaries may lease (as
\n lessee) or license (as licensee) real or personal property (so long as
\n any such lease or license does not create a Capital Lease Obligation
\n except to the extent permitted by Section 8.04(iv));<\/p>\n
(vii)each of the Borrower and its Subsidiaries may sell or
\n discount, in each case without recourse and in the ordinary course of
\n business, accounts receivable arising in the ordinary course of
\n business, but only in connection with the compromise or collection
\n thereof;<\/p>\n
(viii) each of the Borrower and its Subsidiaries may grant
\n licenses, sublicenses, leases or subleases to other Persons in the
\n ordinary course of business and not materially interfering with the
\n conduct of the business of the Borrower or any of its Subsidiaries;<\/p>\n
(ix) the Borrower and its Wholly-Owned Subsidiaries may
\n acquire all or substantially all of the assets of any Person (or all or
\n substantially all of the assets of a product line or division of any
\n Person) or 100% (or at least 51% to the extent provided below) of the
\n capital stock or other equity interests of any Person (any such
\n acquisition permitted by this clause (ix), a “Permitted Acquisition”),
\n so long as (i) no Default or Event of Default then exists or would
\n result therefrom, (ii) each of the representations and warranties
\n contained in Article VI shall be true and correct in all material
\n respects both <\/p>\n
-78-<\/p>\n
before and after giving effect to such Permitted Acquisition, (iii) any
\n Liens or Indebtedness assumed, incurred or issued in connection with
\n such acquisition are otherwise permitted under Section 8.01 or 8.04, as
\n the case may be, (iv) at least 10 Business Days prior to the
\n consummation of any Permitted Acquisition, Holdings shall have
\n delivered to the Administrative Agent and each of the Banks (A) a
\n certificate of a Responsible Officer of Holdings certifying (and
\n showing the calculations therefor in reasonable detail) that Holdings
\n would have been in compliance with the financial covenants set forth in
\n Sections 8.07, 8.08 and 8.09 for the Measurement Period then most
\n recently ended prior to the date of the consummation of such Permitted
\n Acquisition, in each case with such financial covenants to be
\n determined on a pro forma basis as if such Permitted Acquisition had
\n been consummated on the first day of such Measurement Period (and
\n assuming that any Indebtedness incurred, issued or assumed in
\n connection therewith had been incurred, issued or assumed on the first
\n day of, and had remained outstanding throughout, such Measurement
\n Period), it being understood, however, that with respect to any
\n Permitted Acquisition consummated prior to June 30, 1998, Holdings
\n shall be in pro forma compliance with the financial ratio levels set
\n forth in Sections 8.07, 8.08, and 8.09 in respect of the Measurement
\n Period ending on June 30, 1998 and (B) in the case of any Permitted
\n Acquisition in which the aggregate consideration equals or exceeds
\n $5,000,000, projections (in reasonable detail) prepared by a
\n Responsible Officer of Holdings for the period from the date of the
\n consummation of such Permitted Acquisition to the date which is one
\n year thereafter calculated after giving effect to the respective
\n Permitted Acquisition, demonstrating that the level of financial
\n performance measured by the financial covenants set forth in Sections
\n 8.07, 8.08 and 8.09 shall be better than or equal to such level as
\n would be required to provide that no Default or Event of Default will
\n exist under such financial covenants, as compliance with such financial
\n covenants will be required through the date which is one year from the
\n date of the consummation of the respective Permitted Acquisition, (v)
\n the only consideration paid by the Borrower or any of its Wholly-Owned
\n Subsidiaries in connection with any such Permitted Acquisition consists
\n solely of cash (including as a result of any earnout, non-compete or
\n deferred compensation arrangements), Indebtedness incurred, assumed or
\n issued to the extent permitted by Section 8.04, Holdings Common Stock
\n and\/or Qualified Holdings Preferred Stock, (vi) no more than $5,000,000
\n in the aggregate in any fiscal year of the Borrower may be expended on
\n Permitted Acquisitions in which the Borrower or a Wholly-Owned
\n Subsidiary thereof acquires less than 100% of the capital stock of any
\n Person and then only so long as the Borrower or such Wholly-Owned
\n Subsidiary controls the board of directors of such Person, (vii) the
\n aggregate consideration paid in connection with all Permitted
\n Acquisitions effected in any fiscal year of the Borrower (including,
\n without limitation, any earnout, non-compete or deferred compensation
\n arrangements, the aggregate principal amount of any Indebtedness
\n assumed, incurred or issued in connection therewith and the fair market
\n value of any Holdings Common Stock or Qualified Holdings Preferred
\n Stock issued in connection therewith (as determined in good faith by
\n Holdings)) does not exceed $10,000,000, although the Borrower or a
\n Wholly-Owned Subsidiary thereof also may consummate the acquisition of
\n Legal Communications, Ltd. in fiscal year 1998 so long as (A) the
\n aggregate consideration paid in connection with such Permitted
\n Acquisition does not exceed $21,000,000 and (B) each <\/p>\n
-79-<\/p>\n
of the other conditions set forth in this Section 8.02(ix) are complied
\n with, and (viii) immediately after giving effect to any Permitted
\n Acquisition, the aggregate unutilized Revolving Commitments shall be at
\n least $10,000,000;<\/p>\n
(x) any Subsidiary of the Borrower may transfer any of its
\n assets to the Borrower and may be merged, consolidated or liquidated
\n with or into the Borrower so long as the Borrower is the surviving
\n corporation of any such merger, consolidation or liquidation; and<\/p>\n
(xi) any Subsidiary of the Borrower may transfer any of its
\n assets to a Subsidiary Guarantor and may be merged, consolidated or
\n liquidated with or into any Subsidiary Guarantor so long as (i) in the
\n case of any such merger, consolidation or liquidation, the Subsidiary
\n Guarantor is the surviving corporation and (ii) in addition to the
\n requirements of preceding clause (i), in the case of any such merger,
\n consolidation or liquidation involving a Wholly-Owned Subsidiary of the
\n Borrower, the Wholly-Owned Subsidiary is the surviving corporation of
\n such merger, consolidation or liquidation.<\/p>\n
To the extent the Required Banks waive the provisions of this Section 8.02 with
\nrespect to the sale of any Collateral, or any Collateral is sold as permitted by
\nthis Section 8.02 (other than to Holdings or a Subsidiary thereof), such
\nCollateral shall be sold free and clear of the Liens created by the Collateral
\nDocuments, and the Administrative Agent and the Collateral Agent shall be
\nauthorized to take any actions deemed appropriate in order to effect the
\nforegoing.<\/p>\n
8.03 Dividends. Holdings will not, and will not permit any of its
\nSubsidiaries to, authorize, declare or pay any Dividends with respect to
\nHoldings or any of its Subsidiaries, except that:<\/p>\n
(i) (x) any Subsidiary of the Borrower may pay cash Dividends
\n to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y)
\n any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends
\n to its shareholders generally so long as the Borrower or its respective
\n Subsidiary which owns the equity interest or interests in the
\n Subsidiary paying such Dividends receives at least its proportionate
\n share thereof (based upon its relative holdings of the equity interests
\n in the Subsidiary paying such Dividends and taking into account the
\n relative preferences, if any, of the various classes of equity
\n interests in such Subsidiary);<\/p>\n
(ii) so long as there shall exist no Default or Event of
\n Default (both before and after giving effect to the payment thereof),
\n the Borrower may pay cash Dividends to Holdings to enable Holdings to
\n promptly repurchase outstanding shares of its capital stock (or options
\n to purchase such capital stock) held by officers or employees of
\n Holdings or any of its Subsidiaries following the death, disability,
\n retirement or termination of employment of such officers or employees,
\n provided that the aggregate amount of all such Dividends and
\n repurchases made pursuant to this clause (ii) shall not exceed $250,000
\n in any fiscal year of Holdings;<\/p>\n
-80-<\/p>\n
(iii) the Borrower may pay cash Dividends to Holdings so long
\n as the proceeds thereof are promptly used by Holdings to pay operating
\n and corporate overhead costs and expenses in the ordinary course of
\n business (including, without limitation, outside directors and
\n professional fees, expenses and indemnities), provided that the
\n aggregate amount of cash Dividends paid pursuant to this clause (iii)
\n shall not exceed $250,000 in any fiscal year of Holdings; and<\/p>\n
(iv) the Borrower may pay cash Dividends to Holdings in
\n connection with any amounts actually owing by it in respect of taxes,
\n provided that any refunds received by Holdings are promptly returned to
\n the Borrower; and<\/p>\n
(v) the Borrower may pay cash Dividends to Holdings to enable
\n Holdings to make payments of liquidated damages to the holders of the
\n Holdings Senior Discount Notes in accordance with the terms thereof,
\n provided that the aggregate amount of Dividends paid pursuant to this
\n clause (v) shall not exceed $100,000.<\/p>\n
8.04 Indebtedness. Holdings will not, and will not permit any of its
\nSubsidiaries to, contract, create, incur, assume or suffer to exist any
\nIndebtedness, except:<\/p>\n
(i) Indebtedness incurred pursuant to this Agreement and the
\n other Loan Documents;<\/p>\n
(ii) existing Indebtedness (other than the Holdings Senior
\n Discount Notes and the Borrower Senior Notes) outstanding on the
\n Closing Date and listed on Schedule 8.04, without giving effect to any
\n subsequent extension, renewal or refinancing thereof except to the
\n extent set forth on Schedule 8.04, provided that the aggregate
\n principal amount of the Indebtedness to be extended, renewed or
\n refinanced does not increase from that amount outstanding at the time
\n of any such extension, renewal or refinancing;<\/p>\n
(iii) Indebtedness under Interest Rate Protection Agreements
\n entered into with respect to other Indebtedness permitted under this
\n Section 8.04;<\/p>\n
(iv) Indebtedness of the Borrower and its Subsidiaries
\n evidenced by Capital Lease Obligations, provided that in no event shall
\n the aggregate principal amount of Capital Lease Obligations permitted
\n by this clause (iv), when added to the aggregate principal amount of
\n Indebtedness outstanding under clause (v) of this Section 8.04, exceed
\n $5,000,000 at any time outstanding;<\/p>\n
(v) Indebtedness subject to Liens permitted under Sections
\n 8.01(vii);<\/p>\n
(vi) intercompany Indebtedness among the Borrower and its
\n Subsidiaries to the extent permitted by Sections 8.05(xi) and
\n 8.05(xii);<\/p>\n
(vii) Indebtedness of the Borrower and the Subsidiary
\n Guarantors incurred under the Borrower Senior Note Documents in an
\n aggregate principal amount not to exceed $175,000,000 (which amount may
\n be increased to $210,000,000 so long as no <\/p>\n
-81-<\/p>\n
Default or Event of Default then exists or would result therefrom) (in
\n each case as reduced by any repayments of principal thereof);<\/p>\n
(viii) Indebtedness of Holdings under the Holdings Senior
\n Discount Note Documents in an initial aggregate principal amount not to
\n exceed $35,000,000, which amount may be increased to $63,275,000 solely
\n through accretion (as reduced by any repayments of principal thereof);<\/p>\n
(ix) Indebtedness of a Subsidiary acquired pursuant to a
\n Permitted Acquisition or Indebtedness of the Borrower or a Subsidiary
\n thereof assumed at the time of a Permitted Acquisition of an asset
\n securing such Indebtedness, provided that (i) such Indebtedness was not
\n incurred in connection with or anticipation of such Permitted
\n Acquisition, (ii) such Indebtedness does not constitute debt for
\n borrowed money (other than in connection with industrial revenue or
\n industrial development bond financing), it being understood and agreed
\n that Capital Lease Obligations and purchase money Indebtedness shall
\n not constitute debt for borrowed money for purposes of this clause (ix)
\n and (iii) at the time of such Permitted Acquisition such Indebtedness
\n does not exceed 10% of the total value of the assets of the Subsidiary
\n so acquired, or the assets so acquired, as the case may be; and<\/p>\n
(x) additional unsecured Indebtedness incurred by the Borrower
\n or any of its Subsidiaries in an aggregate principal amount not to
\n exceed $2,000,000 at any one time outstanding for all such Persons
\n taken together.<\/p>\n
8.05 Advances, Investments and Loans. Holdings will not, and will not
\npermit any of its Subsidiaries to, directly or indirectly, lend money or credit
\nor make advances to any Person, or purchase or acquire any stock, obligations or
\nsecurities of, or any other interest in, or make any capital contribution to,
\nany other Person, or purchase or own a futures contract or otherwise become
\nliable for the purchase or sale of currency or other commodities at a future
\ndate in the nature of a futures contract, or hold any cash or Cash Equivalents
\n(each of the foregoing an “Investment” and, collectively, “Investments”), except
\nthat the following shall be permitted:<\/p>\n
(i) the Borrower and its Subsidiaries may acquire and hold
\n accounts receivables owing to any of them, if created or acquired in
\n the ordinary course of business and payable or dischargeable in
\n accordance with customary trade terms of the Borrower or such
\n Subsidiary;<\/p>\n
(ii) the Borrower and its Subsidiaries may acquire and hold
\n cash and Cash Equivalents, provided that during any time that Revolving
\n Loans are outstanding the aggregate amount of cash and Cash Equivalents
\n permitted to be held by the Borrower and its Subsidiaries shall not
\n exceed $5,000,000 for any period of five consecutive Business Days;<\/p>\n
(iii)Holdings and its Subsidiaries may hold the Investments
\n held by them on the Closing Date and described on Schedule 8.05,
\n provided that any additional <\/p>\n
-82-<\/p>\n
Investments made with respect thereto shall be permitted only if
\n independently justified under the other provisions of this Section
\n 8.05;<\/p>\n
(iv) the Borrower and its Subsidiaries may acquire and own
\n investments (including debt obligations) received in connection with
\n the bankruptcy or reorganization of suppliers and customers and in good
\n faith settlement of delinquent obligations of, and other disputes with,
\n customers and suppliers arising in the ordinary course of business;<\/p>\n
(v) the Borrower and its Subsidiaries may make loans and
\n advances in the ordinary course of business to their respective
\n officers and employees so long as the aggregate principal amount
\n thereof at any time outstanding (determined without regard to any
\n write-downs or write-offs of such loans and advances) shall not exceed
\n $500,000;<\/p>\n
(vi) Holdings may acquire and hold obligations of one or more
\n officers or employees of Holdings or any of its Subsidiaries in
\n connection with such officers’ or employees’ acquisition of shares of
\n capital stock of Holdings so long as no cash is paid by Holdings or any
\n of its Subsidiaries to such officers or employees in connection with
\n the acquisition of any such obligations;<\/p>\n
(vii) the Borrower and its Subsidiaries may acquire and hold
\n promissory notes issued by the purchaser of assets in connection with a
\n sale of such assets to the extent permitted by Section 8.02;<\/p>\n
(viii) the Borrower and its Wholly-Owned Subsidiaries may make
\n Permitted Acquisitions to the extent permitted by Section 8.02(ix);<\/p>\n
(ix) the Borrower and its Subsidiaries may enter into Interest
\n Rate Protection Agreements to the extent permitted by Section
\n 8.04(iii);<\/p>\n
(x) Holdings may make cash contributions to the capital of the
\n Borrower and the Borrower and the Subsidiary Guarantors may make cash
\n contributions to the capital of their respective Subsidiaries which are
\n Subsidiary Guarantors;<\/p>\n
(xi) the Borrower and the Subsidiary Guarantors may make
\n intercompany loans and advances between or among one another
\n (collectively, “Intercompany Loans”), so long as (x) each Intercompany
\n Loan shall be evidenced by an Intercompany Note that is pledged to the
\n Collateral Agent pursuant to the Pledge Agreement and (y) each
\n Intercompany Loan made to the Borrower shall contain the subordination
\n provisions set forth in Exhibit M;<\/p>\n
(xii) the Borrower and the Subsidiary Guarantors may make
\n additional loans and cash contributions to their respective
\n Subsidiaries which are not Subsidiary Guarantors in an aggregate amount
\n not to exceed $500,000 at any time outstanding (determined without
\n regard to any write-downs or write-offs thereof) so long as any such
\n loans that are made by a Credit Party are evidenced by an Intercompany
\n Note that is pledged pursuant to, and to the extent required by, the
\n Pledge Agreement; and<\/p>\n
-83-<\/p>\n
(xiii) the Borrower and its Subsidiaries may make additional
\n Investments in an aggregate amount not to exceed $1,000,000 in any
\n fiscal year of the Borrower (determined without regard to any
\n write-downs or write-offs thereof).<\/p>\n
8.06 Transactions with Affiliates. Holdings will not, and will not
\npermit any of its Subsidiaries to, enter into any transaction or series of
\nrelated transactions, whether or not in the ordinary course of business, with
\nany Affiliate of Holdings or any of its Subsidiaries, other than in the ordinary
\ncourse of business and on terms and conditions substantially as favorable to
\nHoldings or such Subsidiary as would reasonably be obtained by Holdings or such
\nSubsidiary at that time in a comparable arm’s-length transaction with a Person
\nother than an Affiliate, except that the following in any event shall be
\npermitted:<\/p>\n
(i) Dividends may be paid to the extent provided in Section
\n 8.03;<\/p>\n
(ii) loans may be made and other transactions may be entered
\n into by Holdings and its Subsidiaries to the extent permitted by
\n Sections 8.02, 8.04 and 8.05;<\/p>\n
(iii) customary fees may be paid to non-officer directors of
\n Holdings and its Subsidiaries;<\/p>\n
(iv) so long as no Default or Event of Default shall exist,
\n the Borrower may pay monitoring or management fees to WP Management or
\n an Affiliate thereof quarterly in arrears in an aggregate amount not to
\n exceed $250,000 per quarter (whether or not actually paid at the end of
\n such quarter or deferred and paid in any subsequent quarter, provided,
\n however, that in no event shall more than $500,000 be paid in any
\n quarter), plus the reasonable out-of-pocket expenses incurred by WP
\n Management or an Affiliate thereof in performing management services
\n for the Borrower (it being understood and agreed that the reimbursement
\n of such reasonable out-of-pocket expenses may be made whether or not
\n any Default or Event of Default exists); and<\/p>\n
(v) so long as no Default or Event of Default shall exist, the
\n Borrower and its Subsidiaries may make payments to Wasserstein and its
\n Affiliates in respect of fees for any financial advisory, financing,
\n underwriting or placement services or in respect of investment banking
\n activities, including, without limitation, in connection with Permitted
\n Acquisitions and Asset Sales, so long as such payments are reasonable
\n and customary and are approved by a majority of the Board of Directors
\n of the Borrower in good faith.<\/p>\n
8.07 Consolidated Interest Coverage Ratio. Holdings and the Borrower
\nwill not permit the Consolidated Interest Coverage Ratio for any Measurement
\nPeriod ending on the last day of a fiscal quarter set forth below to be less
\nthan the ratio set forth opposite such fiscal quarter below:<\/p>\n
\n\n Fiscal Quarter Ending Ratio
\n ——————— —–
\n
\n June 30, 1998 1.50:1.00<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
-84-<\/p>\n
\n\n Fiscal Quarter Ending Ratio
\n ——————— —–
\n
\n September 30, 1998 1.50:1.00
\n December 31, 1998 1.50:1.00
\n March 31, 1999 1.50:1.00
\n June 30, 1999 1.50:1.00
\n September 30, 1999 1.50:1.00
\n December 31, 1999 1.75:1.00
\n March 31, 2000 1.75:1.00
\n June 30, 2000 1.75:1.00
\n September 30, 2000 1.75:1.00
\n December 31, 2000 2.00:1.00
\n March 31, 2001 2.00:1.00
\n June 30, 2001 2.00:1.00
\n September 30, 2001 2.00:1.00
\n December 31, 2001
\n and the last day of each
\n fiscal quarter thereafter 2.25:1.00<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
8.08 Consolidated Fixed Charge Coverage Ratio. Holdings and the
\nBorrower will not permit the Consolidated Fixed Charge Coverage Ratio for any
\nMeasurement Period ending on the last day of a fiscal quarter set forth below to
\nbe less than the ratio set forth opposite such fiscal quarter below:<\/p>\n
\n\n Fiscal Quarter Ending Ratio
\n ——————— —–<\/p>\n
\n June 30, 1998 1.00:1.00
\n September 30, 1998 1.00:1.00
\n December 31, 1998 1.00:1.00
\n March 31, 1999 1.00:1.00
\n June 30, 1999 1.00:1.00
\n September 30, 1999 1.00:1.00
\n December 31, 1999 1.00:1.00
\n March 30, 2000 1.00:1.00
\n June 30, 2000 1.00:1.00
\n September 30, 2000 1.00:1.00
\n December 31, 2000
\n and the last day of
\n each fiscal quarter 1.15:1.00<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
8.09 Maximum Total Leverage Ratio. Holdings and the Borrower will not
\npermit the Consolidated Total Leverage Ratio at any time during a period set
\nforth below to be greater than the ratio set forth opposite such period below:<\/p>\n
\n\n Period Ratio
\n —— —–
\n
\n<\/c><\/s><\/caption>\n<\/table>\n -85-<\/p>\n
\n\n Period Ratio
\n —— —–
\n
\n June 30, 1998 through and
\n including December 30, 1998 7.75:1.00<\/p>\n December 31, 1998 through and
\n including December 30, 1999 7.50:1.00<\/p>\n
December 31, 1999 through and
\n including December 30, 2000 6.75:1.00<\/p>\n
December 31, 2000 through and
\n including December 30, 2001 6.00:1.00<\/p>\n
December 31, 2001 through and
\n including December 30, 2002 5.50:1.00<\/p>\n
Thereafter 5.00:1.00<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
8.10 Limitation on Voluntary Payments and Modification of Certain
\nIndebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
\nOther Agreements; etc. Holdings will not, and will not permit any of its
\nSubsidiaries to:<\/p>\n
(i) make (or give any notice in respect of) any voluntary or
\n optional payment or prepayment on or redemption or acquisition for
\n value of (including, without limitation, by way of depositing with the
\n trustee with respect thereto or any other Person money or securities
\n before due for the purpose of paying when due) any Borrower Senior Note
\n or any Holdings Senior Discount Note; provided, however, from and after
\n April 1, 1999, the Borrower may voluntarily redeem or repurchase
\n outstanding Borrower Senior Notes pursuant to this clause (i) so long
\n as (x) no Default or Event of Default then exists or would result
\n therefrom, (g) no Revolving Loans are outstanding at the time of such
\n redemption or repurchase and immediately after giving effect thereto
\n and (z) no more than $10,000,000 in the aggregate is expended in
\n respect of such redemptions or repurchases (exclusive of amounts
\n representing accrued and unpaid interest).<\/p>\n
(ii) make (or give any notice in respect of) any prepayment or
\n redemption of any Borrower Senior Note or any Holdings Senior Discount
\n Note as a result of any asset sale, change of control or similar event
\n (including, without limitation, by way of depositing with the trustee
\n with respect thereto or any other Person money or securities before due
\n for the purpose of paying when due any Borrower Senior Note or any
\n Holdings Senior Discount Note);<\/p>\n
(iii) amend or modify, or permit the amendment or modification
\n of, any provision of any Borrower Senior Note Document or any Holdings
\n Senior Discount Note Document, other than an amendment, in form and
\n substance reasonably satisfactory to Bank of America (or any successor
\n Administrative Agent), permitting an increase in the principal amount
\n of the Borrower Senior Notes from $175,000,000 to up to $210,000,000;
\n or<\/p>\n
(iv) amend, modify or change its certificate of incorporation
\n (including, without limitation, by the filing or modification of any
\n certificate of designation) or by-<\/p>\n
-86-<\/p>\n
laws (or the equivalent organizational documents) or any agreement
\n entered into by it with respect to its capital stock, or enter into any
\n new agreement with respect to its capital stock, unless such amendment,
\n modification, change or other action contemplated by this clause (iv)
\n could not reasonably be adverse to the interests of the Banks.<\/p>\n
8.11 Limitation on Certain Restrictions on Subsidiaries. Holdings will
\nnot, and will not permit any of its Subsidiaries to, directly or indirectly,
\ncreate or otherwise cause or suffer to exist or become effective any encumbrance
\nor restriction on the ability of any such Subsidiary to (a) pay dividends or
\nmake any other distributions on its capital stock or any other interest or
\nparticipation in its profits owned by Holdings or any Subsidiary of Holdings, or
\npay any Indebtedness owed to Holdings or any Subsidiary of Holdings, (b) make
\nloans or advances to Holdings or any Subsidiary of Holdings or (c) transfer any
\nof its properties or assets to Holdings or any Subsidiary of Holdings, except
\nfor such encumbrances or restrictions existing under or by reason of (i)
\napplicable law, (ii) this Agreement and the other Loan Documents, (iii) the
\nBorrower Senior Note Documents, (iv) customary provisions restricting subletting
\nor assignment of any lease governing a leasehold interest of Holdings or any
\nSubsidiary of Holdings, (v) customary provisions restricting assignment of any
\nlicensing agreement entered into by Holdings or any Subsidiary of Holdings in
\nthe ordinary course of business, (vi) restrictions on the transfer of any asset
\nsubject to a Lien permitted by Sections 8.01(iii), (vi), (vii) and (xii) so long
\nas such restrictions are not applicable to any property or any Subsidiary of
\nHoldings other than the specific property subject to such Lien, and (vii)
\nrestrictions on the transfer of any asset pending the close of the sale of such
\nasset.<\/p>\n
8.12 Limitation on Issuance of Capital Stock.<\/p>\n
(a) Holdings will not, and will not permit any of its
\n Subsidiaries to, issue (i) any preferred stock other than Qualified
\n Holdings Preferred Stock issued by Holdings or (ii) any redeemable
\n common stock (other than common stock that is redeemable at the sole
\n option of Holdings or such Subsidiary).<\/p>\n
(b) Holdings will not permit any of its Subsidiaries to issue
\n any capital stock (including by way of sales of treasury stock) or any
\n options or warrants to purchase, or securities convertible into,
\n capital stock, except (i) for transfers and replacements of then
\n outstanding shares of capital stock, (ii) for stock splits, stock
\n dividends and issuances which do not decrease the percentage ownership
\n of Holdings or any of its Subsidiaries in any class of the capital
\n stock of such Subsidiary, (iii) to qualify directors to the extent
\n required by applicable law or (iv) for issuances by newly created or
\n acquired Subsidiaries in accordance with the terms of this Agreement.<\/p>\n
-87-<\/p>\n
8.13 Business.<\/p>\n
(a) Holdings and its Subsidiaries will not engage in any
\n business other than the businesses engaged in by the Borrower and its
\n Subsidiaries as of the Closing Date and reasonable extensions thereof
\n and activities incidental thereto.<\/p>\n
(b) Notwithstanding the foregoing or anything in this
\n Agreement, Holdings will not engage in any business and will not own
\n any significant assets or have any material liabilities other than its
\n ownership of the capital stock of the Borrower and having those
\n liabilities which it is responsible for under this Agreement, the other
\n Loan Documents to which it is a party and the Holdings Senior Discount
\n Note Documents, provided that Holdings may engage in those activities
\n that are incidental to (x) the maintenance of its corporate existence
\n in compliance with applicable law, (y) legal, tax and accounting
\n matters in connection with any of the foregoing activities and (z) the
\n entering into, and performing its obligations under, this Agreement and
\n the other Transaction Documents to which it is a party.<\/p>\n
8.14 Limitation on Creation of Subsidiaries. Notwithstanding anything
\nto the contrary contained in this Agreement, Holdings will not, and will not
\npermit any of its Subsidiaries to, establish, create or acquire after the
\nClosing Date any Subsidiary, provided that the Borrower and its Wholly-Owned
\nSubsidiaries shall be permitted to establish, create and, to the extent
\npermitted by this Agreement, acquire Subsidiaries so long as (i) the capital
\nstock or other equity interests of each such new Subsidiary is pledged pursuant
\nto, and to the extent required by, the Pledge Agreement and the certificates (if
\nany) representing such stock or other equity interests, together with stock or
\nother powers duly executed in blank, are delivered to the Collateral Agent for
\nthe benefit of the Banks, and (ii) each such new Domestic Subsidiary, and to the
\nextent required by Section 7.12, each such new Foreign Subsidiary, executes a
\nGuarantor Supplement. In addition, each new Domestic Subsidiary, and to the
\nextent required by Section 7.12, each such new Foreign Subsidiary, shall execute
\nand deliver, or cause to be executed and delivered, all other relevant
\ndocumentation of the type described in Article V as such new Subsidiary would
\nhave had to deliver if such new Subsidiary were a Credit Party on the Closing
\nDate.<\/p>\n
ARTICLE IX<\/p>\n
EVENT OF DEFAULT<\/p>\n
9.01 Event of Default. Any of the following shall constitute an “Event
\nof Default”:<\/p>\n
(a) Non-Payment. The Borrower fails to pay, (i) when and as
\n required to be paid herein, any amount of principal of any Revolving
\n Loan or any amount of any Letter of Credit Obligation, or (ii) within
\n three Business Days after the same shall become due, any interest, fee
\n or any other amount payable hereunder or pursuant to any other Loan
\n Document; or<\/p>\n
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(b) Representation or Warranty. Any representation or warranty
\n by Holdings or any of its Subsidiaries made or deemed made herein or in
\n any other Loan Document, or which is contained in any certificate,
\n document or financial or other statement furnished by Holdings or any
\n of its Subsidiaries at any time under this Agreement or under any other
\n Loan Document, shall prove to have been incorrect in any material
\n respect on or as of the date made or deemed made; or<\/p>\n
(c) Specific Defaults. Holdings or any of its Subsidiaries
\n fails to perform or observe any term, covenant or agreement contained
\n in Section 7.03(a), 7.10, 7.13 or Article VIII; or<\/p>\n
(d) Other Defaults. Holdings or any of its Subsidiaries fails
\n to perform or observe any other term or covenant contained in this
\n Agreement or in any other Loan Document, and such default shall
\n continue unremedied for a period of 30 days after the date upon which
\n written notice thereof is given to the Borrower by the Administrative
\n Agent or any Bank; or<\/p>\n
(e) Cross-Default. Holdings or any of its Subsidiaries (i)
\n fails to make any payment in respect of any Indebtedness having an
\n aggregate principal amount of $5,000,000 or more when due (whether by
\n scheduled maturity, required prepayment, acceleration, demand, or
\n otherwise) and such failure continues after the applicable grace or
\n notice period, if any, specified in the document relating thereto on
\n the date of such failure; or (ii) fails to perform or observe any other
\n condition or covenant, or any other event shall occur or condition
\n exist, under any agreement or instrument relating to any such
\n Indebtedness, and such failure continues after the applicable grace or
\n notice period, if any, specified in the document relating thereto on
\n the date of such failure if the effect of such failure, event or
\n condition is to cause, or to permit the holder or holders of such
\n Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
\n trustee or agent on behalf of such holder or holders or beneficiary or
\n beneficiaries) to cause such Indebtedness to be declared to be due and
\n payable prior to its stated maturity; or<\/p>\n
(f) Insolvency; Voluntary Proceedings. Holdings or any of its
\n Subsidiaries (i) generally fails to pay its debts as they become due;
\n (ii) commences any Insolvency Proceeding with respect to itself; or
\n (iii) takes any action to effectuate or authorize any of the foregoing;
\n or<\/p>\n
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
\n Proceeding is commenced or filed against Holdings or any of its
\n Subsidiaries, or any writ, judgment, warrant of attachment, execution
\n or similar process, is issued or levied against a substantial part of
\n Holdings’ or any of its Subsidiaries’ properties, and any such
\n proceeding or petition shall not be dismissed, or such writ, judgment,
\n warrant of attachment, execution or similar process shall not be
\n released, vacated or fully bonded within 60 days after commencement,
\n filing or levy; (ii) Holdings or any of its Subsidiaries admits the
\n material allegations of a petition against it in any Proceeding, or an
\n order for relief (or similar order under non-U.S. law) is ordered in
\n any Insolvency <\/p>\n
-89-<\/p>\n
Proceeding; or (iii) Holdings or any of its Subsidiaries acquiesces in
\n the appointment of a receiver, trustee, custodian, conservator,
\n liquidator, mortgagee in possession (or agent therefor), or other
\n similar Person for itself or a substantial portion of its property or
\n business; or<\/p>\n
(h) ERISA. (a) Any Plan shall fail to satisfy the minimum
\n funding standard required for any plan year or part thereof under
\n Section 412 of the Code or Section 302 of ERISA or a waiver of such
\n standard or extension of any amortization period is sought or granted
\n under Section 412 of the Code or Section 303 or 304 of ERISA, a
\n Reportable Event shall have occurred, a contributing sponsor (as
\n defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV
\n of ERISA shall be subject to the advance reporting requirement of PBGC
\n Regulation Section 4043.61 (without regard to subparagraph (b)(1)
\n thereof) and an event described in subsection .62, .63, .64, .65, .66,
\n .67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected
\n to occur with respect to such Plan within the following 30 days, any
\n Plan which is subject to Title IV of ERISA shall have had or is likely
\n to have a trustee appointed to administer such Plan, any Plan which is
\n subject to Title IV of ERISA is, shall have been or is likely to be
\n terminated or to be the subject of termination proceedings under ERISA,
\n any Plan shall have an Unfunded Current Liability, a contribution
\n required to be made with respect to a Plan has not been timely made,
\n Holdings or any Subsidiary of Holdings or any ERISA Affiliate has
\n incurred or is likely to incur any liability to or on account of a Plan
\n under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
\n 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code
\n or on account of a group health plan (as defined in Section 607(1) of
\n ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
\n Code, or Holdings or any Subsidiary of Holdings has incurred or is
\n likely to incur liabilities pursuant to one or more employee welfare
\n benefit plans (as defined in Section 3(1) of ERISA) that provide
\n benefits to retired employees or other former employees (other than as
\n required by Section 601 of ERISA) or Plans; (b) there shall result from
\n any such event or events the imposition of a lien, the granting of a
\n security interest, or a liability or a material risk of incurring a
\n liability; and (c) such lien, security interest or liability,
\n individually, and\/or in the aggregate, in the opinion of the Required
\n Banks, has had, or could reasonably be expected to have, a Material
\n Adverse Effect; or<\/p>\n
(i) Judgments. One or more judgments or decrees shall be
\n entered against Holdings or any of its Subsidiaries involving a
\n liability (not paid or not covered by a reputable and solvent insurance
\n company) of $5,000,000 or more for all such judgments and decrees and
\n all such judgments or decrees shall not have been vacated, discharged
\n or stayed or bonded pending appeal within 30 days from the entry
\n thereof; or<\/p>\n
(j) Change of Control. Any Change of Control shall occur; or<\/p>\n
(k) Collateral; Guaranties.<\/p>\n
(i) Except in each case to the extent resulting from
\n the failure of the Collateral Agent to retain possession of
\n the applicable Pledged Securities, any <\/p>\n
-90-<\/p>\n
Collateral Document (other than the Guaranties) shall cease to
\n be in full force and effect, or shall cease to give the
\n Collateral Agent the Liens, rights, powers and privileges
\n purported to be created thereby in favor of the Collateral
\n Agent; or<\/p>\n
(ii) any Guaranty or any provision thereof shall
\n cease to be in full force and effect, or any Guarantor or any
\n Person acting by or on behalf of such Guarantor shall deny or
\n disaffirm such Guarantor’s obligations under its Guaranty.<\/p>\n
9.02 Remedies. If any Event of Default occurs and is continuing, the
\nAdministrative Agent shall, at the request of, or may, with the consent of, the
\nRequired Banks,<\/p>\n
(a) declare the Revolving Commitment of each Bank and any
\n obligation of each Issuing Bank to issue Letters of Credit to be
\n terminated, whereupon all such Revolving Commitments and obligation
\n shall forthwith be terminated;<\/p>\n
(b) declare the unpaid principal amount of all outstanding
\n Revolving Loans, all interest accrued and unpaid thereon, and all other
\n amounts owing or payable hereunder or under any other Loan Document to
\n be immediately due and payable, without presentment, demand, protest or
\n other notice of any kind, all of which are hereby expressly waived by
\n the Borrower and Holdings;<\/p>\n
(c) demand that the Borrower Cash Collateralize Letter of
\n Credit Obligations to the extent of outstanding and wholly or partially
\n undrawn Letters of Credit, whereupon the Borrower shall so Cash
\n Collateralize;<\/p>\n
(d) exercise on behalf of itself, the Issuing Banks and the
\n Banks all rights and remedies available to it and the Banks under the
\n Loan Documents or applicable law; and<\/p>\n
(e) apply any cash collateral as provided in Section 3.07 to
\n the payment of outstanding Obligations;<\/p>\n
provided, however, that upon the occurrence of any event specified above in
\nparagraph (f) or (g) of Section 9.01 with respect to Holdings, the Borrower or
\nany Significant Subsidiary of the Borrower, the obligation of each Bank to make
\nRevolving Loans and any obligation of each Issuing Bank to issue Letters of
\nCredit shall automatically terminate, and all reimbursement obligations under
\nLetters of Credit and the unpaid principal amount of all outstanding Revolving
\nLoans and all interest and other amounts as aforesaid shall automatically become
\ndue and payable without further act or notice by the Administrative Agent, any
\nIssuing Bank or any Bank, which are hereby expressly waived by the Borrower and
\nHoldings.<\/p>\n
9.03 Rights Not Exclusive. The rights provided for in this Agreement
\nand in the other Loan Documents are cumulative and are not exclusive of any
\nother rights, powers, privileges or remedies provided by law or in equity, or
\nunder any other instrument, document or agreement now existing or hereafter
\narising.<\/p>\n
-91-<\/p>\n
ARTICLE X<\/p>\n
THE GUARANTY<\/p>\n
10.01 Guaranty from Holdings. <\/p>\n
(a) In order to induce the Banks to make Revolving Loans to
\n the Borrower under this Agreement and to induce the Issuing Banks to
\n issue Letters of Credit and to induce the Guaranteed Creditors to enter
\n into the Interest Rate Protection Agreements and Other Hedging
\n Agreements, Holdings hereby unconditionally and irrevocably guarantees
\n the prompt payment and performance in full by the Borrower when due
\n (whether at stated maturity, by acceleration or otherwise) of all
\n Guaranteed Obligations of the Borrower. The obligations of Holdings
\n hereunder are those of a primary obligor, and not merely a surety, and
\n are independent of the Guaranteed Obligations of the Borrower. A
\n separate action or actions may be brought against Holdings whether or
\n not an action is brought against the Borrower, any other guarantor or
\n other obligor in respect of the Guaranteed Obligations or whether the
\n Borrower, any other guarantor or any other obligor in respect of the
\n Guaranteed Obligations is joined in any such action or actions.
\n Holdings waives, to the fullest extent permitted by applicable law, the
\n benefit of any statute of limitation affecting its liability hereunder
\n and agrees that its liability hereunder shall not be subject to any
\n right of set-off, counterclaim or recoupment (each of which rights is
\n hereby waived to the fullest extent permitted by applicable law).<\/p>\n
(b) Holdings guarantees that the obligations guaranteed by it
\n hereby will be paid and performed strictly in accordance with the terms
\n of this Agreement, the other Loan Documents and the applicable Interest
\n Rate Protection Agreements and Other Hedging Agreements regardless of
\n any law, regulation or order now or hereafter in effect in any
\n jurisdiction affecting any of such terms or the rights of the
\n Administrative Agent, the Collateral Agent, the Issuing Banks, the
\n Banks or the other Guaranteed Creditors with respect thereto. This
\n guaranty is a guaranty of payment not collection. The liability of
\n Holdings under this guaranty shall be absolute and unconditional
\n irrespective of, and Holdings hereby irrevocably waives (to the fullest
\n extent permitted by applicable law) any defenses it may now or
\n hereafter have in any way relating to, any and all of the following:<\/p>\n
(i) any lack of genuineness, validity, legality or
\n enforceability against the Borrower or any other guarantor of
\n this Agreement, any other Loan Document, any Interest Rate
\n Protection Agreement or Other Hedging Agreement or any
\n document, agreement or instrument relating hereto or any
\n assignment or transfer of this Agreement, any other Loan
\n Document or any Interest Rate Protection Agreement or Other
\n Hedging Agreement or any defense that the Borrower may have
\n with respect to its liability hereunder or thereunder;<\/p>\n
(ii) any change in the time, manner or place of
\n payment of, or in any other term of, all or any of the
\n Guaranteed Obligations, or any waiver, indulgence, compromise,
\n renewal, extension, amendment, modification of, or addition,<\/p>\n
-92-<\/p>\n
consent, supplement to, or consent to departure from, or any
\n other action or inaction under or in respect of, this
\n Agreement, any other Loan Document, any Interest Rate
\n Protection Agreement or Other Hedging Agreement or any
\n document, instrument or agreement relating to the Guaranteed
\n Obligations or any other instrument or agreement referred to
\n herein or any assignment or transfer of this Agreement or any
\n Interest Rate Protection Agreement or Other Hedging Agreement;<\/p>\n
(iii) any release or partial release of any other
\n guarantor or other obligor in respect of the Guaranteed
\n Obligations;<\/p>\n
(iv) any exchange, impairment, release or
\n non-perfection of any collateral for all or any of the
\n Guaranteed Obligations, or any release, or amendment or waiver
\n of, or consent to departure from, any guaranty or security,
\n for any or all of the Guaranteed Obligations;<\/p>\n
(v) any furnishing of any additional security for any
\n of the Guaranteed Obligations;<\/p>\n
(vi) the liquidation, bankruptcy, insolvency or
\n reorganization of the Borrower, any other guarantor or other
\n obligor in respect of the Guaranteed Obligations or any action
\n taken with respect to this guaranty or otherwise by any
\n trustee or receiver, or by any court, in any such proceeding;<\/p>\n
(vii) any modification or termination of any
\n intercreditor or subordination agreement pursuant to which the
\n claims of other creditors of the Borrower or any guarantor are
\n subordinated to those of the Banks, the Issuing Banks, the
\n Administrative Agent, the Collateral Agent or the other
\n Guaranteed Creditors; or<\/p>\n
(viii) any other circumstance which might otherwise
\n constitute a defense available to, or a legal or equitable
\n discharge of, the Borrower or Holdings.<\/p>\n
(c) This guaranty shall continue to be effective or be
\n reinstated, as the case may be, if at any time payment or performance
\n of the Guaranteed Obligations, or any part thereof, is, upon the
\n insolvency, bankruptcy or reorganization of the Borrower or otherwise
\n pursuant to applicable law, rescinded or reduced in amount or must
\n otherwise be restored or returned by any of the Administrative Agent,
\n any Issuing Bank, any Bank, the Collateral Agent or the other
\n Guaranteed Creditors, all as though such payment or performance had not
\n been made.<\/p>\n
(d) If an event permitting the acceleration of any of the
\n Guaranteed Obligations shall at any time have occurred and be
\n continuing and such acceleration shall at such time be prevented by
\n reason of the pendency against the Borrower of a case or proceeding
\n under any bankruptcy or insolvency law, Holdings agrees that, for
\n purposes of this guaranty and its obligations hereunder, the Guaranteed
\n Obligations shall be deemed to have been accelerated and Holdings shall
\n forthwith pay such Guaranteed Obligations <\/p>\n
-93-<\/p>\n
(including interest which but for the filing of a petition in
\n bankruptcy with respect to the Borrower would accrue on such Guaranteed
\n Obligations, whether or not interest is an allowed claim under
\n applicable law), and the other obligations hereunder, forthwith upon
\n demand.<\/p>\n
(e) Holdings hereby waives (i) promptness, diligence,
\n presentment, notice of nonperformance, protest or dishonor, notice of
\n acceptance and any and all other notices with respect to any of the
\n Guaranteed Obligations or this Agreement, any other Loan Document or
\n any Interest Rate Protection Agreement or Other Hedging Agreement, and
\n (ii) to the extent permitted by applicable law, any right to require
\n that any Administrative Agent, the Collateral Agent, any Issuing Bank,
\n any Bank or any other Guaranteed Creditor protect, secure, perfect or
\n insure any Lien in or any Lien on any property subject thereto or
\n exhaust any right or pursue any remedy or take any action against the
\n Borrower, any other guarantor or any other Person or any collateral or
\n security or to any balance of any deposit accounts or credit on the
\n books of the Administrative Agent, the Collateral Agent, any Issuing
\n Bank, any Bank or any other Guaranteed Creditor in favor of the
\n Borrower.<\/p>\n
(f) Holdings expressly waives until the Guaranteed Obligations
\n are irrevocably paid in full in cash any and all rights of subrogation,
\n reimbursement, contribution and indemnity (contractual, statutory or
\n otherwise), including any claim or right of subrogation under the
\n Bankruptcy Code or any successor statute, arising from the existence or
\n performance of this guaranty and Holdings irrevocably waives until the
\n Guaranteed Obligations are irrevocably paid in full in cash any right
\n to enforce any remedy which the Administrative Agent, the Collateral
\n Agent, the Issuing Banks, the Banks or the other Guaranteed Creditors
\n now have or may hereafter have against the Borrower, and waives, to the
\n fullest extent permitted by law, until the Guaranteed Obligations are
\n irrevocably paid in full in cash any benefit of, and any right to
\n participate in, any security now or hereafter held by the
\n Administrative Agent, the Collateral Agent, any Issuing Bank, any Bank
\n or any other Guaranteed Creditor.<\/p>\n
(g) If, in the exercise of any of its rights and remedies, the
\n Administrative Agent, the Collateral Agent, any Issuing Bank, any Bank
\n or any other Guaranteed Creditor shall forfeit any of its rights or
\n remedies, including its right to enter a deficiency judgment against
\n the Borrower or any other Person, whether because of any applicable
\n laws pertaining to “election of remedies” or the like, Holdings hereby
\n consents to such action and waives any claim based upon such action (to
\n the extent permitted by applicable law). Any election of remedies which
\n results in the denial or impairment of the right of the Administrative
\n Agent, the Collateral Agent, any Issuing Bank, any Bank or any other
\n Guaranteed Creditor to seek a deficiency judgment against any Credit
\n Party shall not impair Holdings’ obligation to pay the full amount of
\n the Guaranteed Obligations.<\/p>\n
(h) This guaranty is a continuing guaranty and shall (i)
\n remain in full force and effect until payment in full of the Guaranteed
\n Obligations and all other amounts <\/p>\n
-94-<\/p>\n
payable under this guaranty and the termination of the Commitments;
\n (ii) be binding upon Holdings, its successors and assigns; and (iii)
\n inure, together with the rights and remedies hereunder, to the benefit
\n of the Guaranteed Creditors and their respective successors,
\n transferees and assigns. Without limiting the generality of the
\n foregoing clause (iii), any Guaranteed Creditor may, subject to the
\n terms of this Agreement or the applicable Interest Rate Protection
\n Agreement or Other Hedging Agreement, assign or otherwise transfer its
\n rights and obligations under this Agreement to any other Person, and
\n such other Person shall thereupon become vested with all the benefits
\n in respect hereof granted to such Bank pursuant to this guaranty or
\n otherwise, all as provided in, and to the extent set forth in, this
\n Agreement.<\/p>\n
(i) Any obligations of the Borrower to Holdings, now or
\n hereafter existing, are hereby subordinated to the Guaranteed
\n Obligations. Such obligations of the Borrower to Holdings, if the
\n Administrative Agent or the Required Banks so request, shall be
\n enforced and amounts recovered shall be received by Holdings as trustee
\n for the Guaranteed Creditors and the proceeds thereof shall be paid
\n over to the Banks on account of the Guaranteed Obligations, but without
\n reducing or affecting in any manner the liability of Holdings under the
\n provisions of this guaranty.<\/p>\n
(j) Upon failure of the Borrower to pay any Guaranteed
\n Obligation when and as the same shall become due, whether at maturity,
\n by acceleration or otherwise, Holdings hereby agrees immediately on
\n demand by any of the Guaranteed Creditors to pay or cause to be paid in
\n accordance with the terms hereof an amount equal to the full unpaid
\n amount of the Guaranteed Obligations then due in Dollars.<\/p>\n
(k) All payments by Holdings hereunder shall be made free and
\n clear of, and without deduction or withholding for or on account of,
\n any Taxes, unless such deduction or withholding is required by law. If
\n Holdings shall be required by law to make any such deduction or
\n withholding, then Holdings shall pay such additional amounts as may be
\n necessary in order that the net amount received by the applicable Bank,
\n the Issuing Bank or the Administrative Agent, as the case may be, after
\n all deductions and withholdings, shall be equal to the full amount that
\n such Person would have received, after all deductions and withholdings,
\n had the Borrower discharged its obligations (including its tax gross-up
\n obligations) pursuant to Section 4.01.<\/p>\n
Any amounts deducted or withheld by Holdings for or on account
\n of Taxes shall be paid over to the government or taxing authority
\n imposing such Taxes on a timely basis, and Holdings shall provide the
\n applicable Bank, the Issuing Bank or the Administrative Agent, as the
\n case may be, as soon as practicable with such tax receipts or other
\n official documentation (and such other certificates, receipts and other
\n documents as may reasonably be requested by such Person) with respect
\n to the payment of such Taxes as may be available.<\/p>\n
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ARTICLE XI<\/p>\n
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
\n THE ISSUING BANK, THE SYNDICATION AGENT AND THE ARRANGERS<\/p>\n
11.01 Appointment and Authorization.<\/p>\n
(a) Each of the Banks and each of the Issuing Banks hereby
\n irrevocably appoints, designates and authorizes Bank of America as
\n Administrative Agent and as Collateral Agent (for purposes of this
\n Article XI, the term “Agent” shall mean Bank of America in its capacity
\n as Administrative Agent and as Collateral Agent) to take such action on
\n its behalf under the provisions of this Agreement and each other Loan
\n Document and to exercise such powers and perform such duties as are
\n expressly delegated to it by the terms of this Agreement or any other
\n Loan Document, together with such powers as are reasonably incidental
\n thereto. Notwithstanding any provision to the contrary contained
\n elsewhere in this Agreement or in any other Loan Document, the Agent
\n shall not have any duties or responsibilities, except those expressly
\n set forth herein, nor shall the Agent have or be deemed to have any
\n fiduciary relationship with any Bank or any Issuing Bank, and no
\n implied covenants, functions, responsibilities, duties, obligations or
\n liabilities shall be read into this Agreement or any other Loan
\n Document or otherwise exist against the Agent.<\/p>\n
(b) Each Issuing Bank shall have all of the benefits and
\n immunities (i) provided to the Agent in this Article XI with respect to
\n any acts taken or omissions suffered by such Issuing Bank in connection
\n with Letters of Credit issued by it or proposed to be issued by it and
\n the Letter of Credit Applications pertaining to the Letters of Credit
\n as fully as if the term “Agent”, as used in this Article XI, included
\n such Issuing Bank with respect to such acts or omissions, and (ii) as
\n additionally provided in this Agreement with respect to such Issuing
\n Bank.<\/p>\n
11.02 Delegation of Duties. The Agent may execute any of its duties
\nunder this Agreement or any other Loan Document by or through agents, employees
\nor attorneys-in-fact and shall be entitled to advice of counsel concerning all
\nmatters pertaining to such duties. The Agent shall not be responsible for the
\nnegligence or misconduct of any agent or attorney-in-fact that it selects with
\nreasonable care.<\/p>\n
11.03 Liability of Agent. None of the Agent, its Affiliates or any of
\ntheir officers, directors, employees, agents or attorneys-in-fact (collectively,
\nthe “Agent-Related Persons”) shall (a) be liable for any action taken or omitted
\nto be taken by any of them under or in connection with this Agreement or any
\nother Loan Document (except for their own gross negligence or willful
\nmisconduct), or (b) be responsible in any manner to any of the Banks for any
\nrecital, statement, representation or warranty made by Holdings, the Borrower or
\nany Subsidiary or Affiliate thereof, or any officer thereof, contained in this
\nAgreement or in any other Loan Document, or in any certificate, report,
\nstatement or other document referred to or provided for in, or received by the
\nAgent under or in connection with, this Agreement or any other Loan Document, or
\nthe validity, effectiveness, genuineness, enforceability or sufficiency of this
\nAgreement or any other Loan <\/p>\n
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Document, or for any failure of the Borrower, Holdings or any other party to any
\nLoan Document to perform its obligations hereunder or thereunder. No
\nAgent-Related Person shall be under any obligation to any Bank to ascertain or
\nto inquire as to the observance or performance of any of the agreements
\ncontained in, or conditions of, this Agreement or any other Loan Document, or to
\ninspect the properties, books or records of the Borrower, Holdings or any of
\ntheir respective Subsidiaries or Affiliates.<\/p>\n
11.04 Reliance by Agent.<\/p>\n
(a) The Banks agree that the Agent shall be entitled to rely,
\n and shall be fully protected in relying, upon any writing, resolution,
\n notice, consent, certificate, affidavit, letter, telegram, facsimile,
\n telex or telephone message, statement or other document or conversation
\n believed by it to be genuine and correct and to have been signed, sent
\n or made by the proper Person or Persons, and upon advice and statements
\n of legal counsel (including counsel to the Borrower, Holdings or any
\n Subsidiary Guarantor), independent accountants and other experts
\n selected by the Agent. The Banks agree that the Agent shall be fully
\n justified in failing or refusing to take any action under this
\n Agreement or any other Loan Document unless it shall first receive such
\n advice or concurrence of the Required Banks or, as required by Section
\n 12.01, all the Banks as it deems appropriate and, if it so requests, it
\n shall first be indemnified to its satisfaction by the Banks against any
\n and all liability and expense which may be incurred by it by reason of
\n taking or continuing to take any such action. The Agent shall in all
\n cases be fully protected in acting, or in refraining from acting, under
\n this Agreement or any other Loan Document in accordance with a request
\n or consent of the Required Banks or, as required by Section 12.01 all
\n the Banks, and such request and any action taken or failure to act
\n pursuant thereto shall be binding upon all of the Banks.<\/p>\n
(b) For purposes of determining compliance with the conditions
\n specified in Section 5.01 as it relates to the occurrence of the
\n Closing Date, each Bank that has executed this Agreement shall be
\n deemed to have consented to, approved or accepted or to be satisfied
\n with each document or other matter either sent by the Agent to such
\n Bank for consent, approval, acceptance or satisfaction, or required
\n thereunder to be consented to or approved by or acceptable or
\n satisfactory to such Bank, unless an officer of the Agent responsible
\n for the transactions contemplated by the Loan Documents shall have
\n received notice from such Bank prior to the Closing Date specifying in
\n reasonable detail its objection thereto and either such objection shall
\n not have been withdrawn by notice to the Agent to that effect or such
\n Bank shall not have made available to the Agent such Bank’s ratable
\n portion of any Borrowing to be made on such date.<\/p>\n
11.05 Notice of Default. The Agent shall not be deemed to have
\nknowledge or notice of the occurrence of any Default or Event of Default, except
\nwith respect to defaults in the payment of principal, interest and fees required
\nto be paid to the Agent for the account of the Banks or the Issuing Bank, unless
\nthe Agent shall have received written notice from a Bank or the Borrower
\nreferring to this Agreement, describing such Default or Event of Default and
\nstating <\/p>\n
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that such notice is a “notice of default”. In the event that the Agent receives
\nsuch a notice, the Agent shall give notice thereof to the Banks and the Issuing
\nBanks. The Agent shall take such action with respect to such Default or Event of
\nDefault as shall be requested by the Required Banks in accordance with Article
\nIX; provided, however, that unless and until the Agent shall have received any
\nsuch request, the Agent may (but shall not be obligated to) take such action, or
\nrefrain from taking such action, with respect to such Default or Event of
\nDefault as it shall deem advisable or in the best interest of the Banks.<\/p>\n
11.06 Credit Decision. Each Bank expressly acknowledges that none of
\nthe Agent-Related Persons has made any representation or warranty to it and that
\nno act by the Agent hereinafter taken, including any review of the affairs of
\nHoldings and its Subsidiaries, shall be deemed to constitute any representation
\nor warranty by the Agent to any Bank. Each Bank represents to the Agent that it
\nhas, independently and without reliance upon the Agent and based on such
\ndocuments and information as it has deemed appropriate, made its own appraisal
\nof and investigation into the business, prospects, operations, property,
\nfinancial and other condition and creditworthiness of Holdings and its
\nSubsidiaries, and all applicable bank regulatory laws relating to the
\ntransactions contemplated thereby, and made its own decision to enter into this
\nAgreement and extend credit to the Borrower hereunder. Each Bank also represents
\nthat it will, independently and without reliance upon the Agent and based on
\nsuch documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit analysis, appraisals and decisions in taking or
\nnot taking action under this Agreement and the other Loan Documents, and to make
\nsuch investigations as it deems necessary to inform itself as to the business,
\nprospects, operations, property, financial and other condition and
\ncreditworthiness of Holdings and its Subsidiaries. Except for notices, reports
\nand other documents expressly herein required to be furnished to the Banks by
\nthe Agent, the Agent shall not have any duty or responsibility to provide any
\nBank with any credit or other information concerning the business, prospects,
\noperations, property, financial and other condition or creditworthiness of the
\nBorrower, Holdings and their Subsidiaries which may come into the possession of
\nany of the Agent-Related Persons.<\/p>\n
11.07 Indemnification. Whether or not the transactions contemplated
\nhereby shall be consummated, the Banks shall indemnify, upon demand, each of the
\nAgent-Related Persons (to the extent not reimbursed by or on behalf of the
\nBorrower and without limiting the obligation of the Borrower to do so), ratably
\nfrom and against any and all liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses and disbursements of any
\nkind whatsoever which may at any time (including at any time following the
\nexpiration of the Letters of Credit and the repayment of the Loans and the
\ntermination or resignation of the Agent) be imposed on, incurred by or asserted
\nagainst any such Person in any way relating to or arising out of this Agreement,
\nany other Loan Document or any document contemplated by or referred to herein or
\ntherein or the transactions contemplated hereby or thereby or any action taken
\nor omitted by any such Person under or in connection with any of the foregoing;
\nprovided, however, that no Bank shall be liable for the payment to any of the
\nAgent-Related Persons of any portion of such liabilities, obligations, losses,
\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements
\nresulting solely from such Person’s gross negligence or willful misconduct.
\nWithout limitation of the foregoing, each Bank shall reimburse the Agent upon<\/p>\n
-98-<\/p>\n
demand for its ratable share of any costs or out-of-pocket expenses (including
\nAttorney Costs) incurred by the Agent in connection with the administration,
\nmodification, amendment or enforcement (whether through negotiations, legal
\nproceedings or otherwise) of, or legal advice in respect of rights or
\nresponsibilities under, this Agreement, any other Loan Document, or any document
\ncontemplated by or referred to herein to the extent that the Agent is not
\nreimbursed for such expenses by or on behalf of the Borrower. Without limiting
\nthe generality of the foregoing, if the Internal Revenue Service or any other
\nGovernmental Authority of the United States or other jurisdiction asserts a
\nclaim that the Agent did not properly withhold tax from amounts paid to or for
\nthe account of any Bank (because the appropriate form was not delivered, was not
\nproperly executed, or because such Bank failed to notify the Agent of a change
\nin circumstances which rendered the exemption from, or reduction of, withholding
\ntax ineffective, or for any other reason) such Bank shall indemnify the Agent
\nfully for all amounts paid as a result thereof, directly or indirectly, by the
\nAgent as tax or otherwise, including penalties and interest, and including any
\ntaxes imposed by any jurisdiction on the amounts payable to the Agent under this
\nSection 11.07, together with all costs and expenses (including Attorney Costs).
\nThe obligation of the Banks in this Section shall survive the payment of all
\nObligations hereunder.<\/p>\n
11.08 Agent in Individual Capacity. Bank of America and its Affiliates
\nmay make loans to, issue letters of credit for the account of, accept deposits
\nfrom, acquire equity interests in and generally engage in any kind of banking,
\ntrust, financial advisory or other business with Holdings and its Subsidiaries
\nand Affiliates as though Bank of America were not the Agent or an Issuing Bank
\nhereunder and without notice to or consent of the Banks. With respect to its
\nRevolving Loans and participation in Letters of Credit, Bank of America shall
\nhave the same rights and powers under this Agreement and the other Loan
\nDocuments as any other Bank and may exercise the same as though it were not the
\nAgent or an Issuing Bank, and the terms “Bank” and “Banks” shall include Bank of
\nAmerica in its individual capacity.<\/p>\n
11.09 Successor Agent. The Agent may resign as Agent upon 30 days’
\nnotice to the Banks and the Borrower. If the Agent shall resign as Agent under
\nthis Agreement, the Required Banks shall appoint from among the Banks a
\nsuccessor agent for the Banks which successor agent shall be subject to the
\napproval of the Borrower if no Event of Default has occurred and is continuing,
\nsuch approval not to be unreasonably withheld or delayed. If no successor agent
\nis appointed prior to the effective date of the resignation of the Agent, the
\nAgent may appoint, after consulting with the Banks and subject to the approval
\nof the Borrower if no Event of Default has occurred and is continuing, such
\napproval not to be unreasonably withheld or delayed, a successor agent from
\namong the Banks or any Bank Affiliate. Any successor Agent appointed under this
\nSection 11.09 shall be a commercial bank organized under the laws of the United
\nStates or any State thereof, and having a combined capital and surplus of at
\nleast $500,000,000. Upon the acceptance of its appointment as successor agent
\nhereunder, such successor agent shall succeed to all the rights, powers and
\nduties of the retiring Agent and the term “Agent” shall mean such successor
\nagent and the retiring Agent’s appointment, powers and duties as Agent shall be
\nterminated. After any retiring Agent’s resignation hereunder as Agent, the
\nprovisions of this Article XI and Sections 12.04 and 12.05 shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was Agent
\nunder this Agreement. If no successor agent has accepted appointment as Agent by
\nthe date which is 30 days following a <\/p>\n
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retiring Agent’s notice of resignation, the retiring Agent’s resignation shall
\nnevertheless thereupon become effective and the Banks shall perform all of the
\nduties of the Agent hereunder until such time, if any, as the Required Banks
\nappoint a successor agent as provided for above.<\/p>\n
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11.10 The Arrangers and the Syndication Agent. Each Arranger
\nand the Syndication Agent, in such capacity, shall have no duties or
\nresponsibilities, and shall incur no obligations or liabilities, under this
\nAgreement. Each Bank acknowledges that it has not relied, and will not rely, on
\nany Arranger or the Syndication Agent in deciding to enter into this Agreement.<\/p>\n
ARTICLET XII<\/p>\n
MISCELLANEOUS<\/p>\n
12.01 Amendments and Waivers.<\/p>\n
(a) No amendment or waiver of any provision of this Agreement
\nor any other Loan Document and no consent with respect to any departure by the
\nBorrower, Holdings or any Subsidiary Guarantor therefrom, shall be effective
\nunless the same shall be in writing and signed by the respective Credit Parties
\nparty thereto and the Required Banks and acknowledged by the Administrative
\nAgent, and then such amendment, waiver or consent shall be effective only in the
\nspecific instance and for the specific purpose for which given; provided,
\nhowever, that no such waiver, amendment or consent shall, unless in writing and
\nsigned by all the Banks affected thereby and acknowledged by the Administrative
\nAgent, do any of the following:<\/p>\n
(i) increase or extend any Revolving Commitment of
\n such Bank (or reinstate any Revolving Commitment terminated
\n pursuant to Section 9.02(a)) (except as provided in Section
\n 12.07);<\/p>\n
(ii) postpone or delay any date for any payment of
\n interest or fees due to the Banks (or any of them) hereunder
\n or under any other Loan Document or extend the Revolving
\n Termination Date;<\/p>\n
(iii) reduce the principal of, or the rate of
\n interest specified herein on, any Revolving Loan or Letter of
\n Credit Borrowing (other than with respect to post-default
\n rates), or of any fees or other amounts payable hereunder or
\n under any other Loan Document or reduce the Applicable Margin
\n provided for herein (it being understood that any amendment or
\n modification to the financial definitions in this Agreement
\n shall not constitute a reduction in the rate of interest or
\n fees for the purposes of this clause (iii));<\/p>\n
(iv) reduce the percentage of the Revolving
\n Commitments or of the aggregate unpaid principal amount of the
\n Revolving Loans which shall be required for the Banks or any
\n of them to take any action hereunder;<\/p>\n
(v) amend this Section 12.01, to the extent that any
\n such amendment would alter any of the voting requirements set
\n forth in the other provisions of this Section 12.01, or amend
\n the definition of the term “Required Banks” or any<\/p>\n
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provision of this Agreement expressly requiring the consent of
\n all the Banks in order to take or refrain from taking any
\n action; or<\/p>\n
(vi) release the guaranty of Holdings under its
\n guaranty pursuant to Article X or discharge any Subsidiary
\n Guarantor from its obligations under any Subsidiary Guaranty,
\n or release all or substantially all of the Collateral except,
\n in all such cases, in accordance with the express provisions
\n thereof;<\/p>\n
and, provided further, that (A) no amendment, waiver or consent shall,
\n unless in writing and signed by the Issuing Banks in addition to the
\n Required Banks or all the Banks, as the case may be, affect the rights
\n or duties of the Issuing Banks under this Agreement or any Letter of
\n Credit Related Document, and (B) no amendment, waiver or consent shall,
\n unless in writing and signed by the Administrative Agent in addition to
\n the Required Banks or all the Banks, as the case may be, affect the
\n rights or duties of the Administrative Agent or under this Agreement or
\n any other Loan Document.<\/p>\n
(b) If, in connection with any proposed change, waiver,
\n discharge or any termination to any of the provisions of this Agreement
\n as contemplated by clauses (ii) through (vi), inclusive, of the first
\n proviso to Section 12.01(a), the consent of the Required Banks is
\n obtained but the consent of one or more other Banks whose consent is
\n required is not obtained, then the Borrower shall have the right, so
\n long as all non-consenting Banks whose individual consent is required
\n are treated the same, to replace each such non-consenting Bank or Banks
\n with one or more Replacement Banks pursuant to Section 4.08(b) so long
\n as at such time of such replacement, each such Replacement Bank
\n consents to the proposed change, waiver, discharge or termination.<\/p>\n
12.02 Notices.<\/p>\n
(a) All notices, requests and other communications provided
\n for hereunder shall be in writing (including, unless the context
\n expressly otherwise provides, facsimile transmission) and mailed,
\n transmitted by facsimile or delivered, (A) if to the Borrower,
\n Holdings, the Administrative Agent or any Issuing Bank, to the address
\n or facsimile number specified for notices on the applicable signature
\n page hereof; (B) if to any Bank, to the notice address of such Bank set
\n forth on Schedule 1.01(a); or (C) as directed to the Borrower or the
\n Administrative Agent, to such other address as shall be designated by
\n such party in a written notice to the other parties, and as directed to
\n each other party, at such other address as shall be designated by such
\n party in a written notice to the Borrower and the Administrative Agent.<\/p>\n
(b) All such notices, requests and communications shall be
\n effective when delivered or transmitted by facsimile machine,
\n respectively, provided that any matter transmitted by the Borrower by
\n facsimile (i) shall be immediately confirmed by a telephone call to the
\n recipient at the number specified on the applicable signature page
\n hereof or on Schedule 1.01(a), and (ii) shall be followed promptly by a
\n hard copy original thereof; except that notices to the Administrative
\n Agent shall not be effective until<\/p>\n
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actually received by the Administrative Agent, and notices pursuant to
\n Article III to each Issuing Bank shall not be effective until actually
\n received by such Issuing Bank.<\/p>\n
(c) The Borrower acknowledges and agrees that any agreement of
\n the Administrative Agent, the Issuing Banks and the Banks in Articles
\n II and III herein to receive certain notices by telephone and facsimile
\n is solely for the convenience and at the request of the Borrower. The
\n Administrative Agent, the Issuing Banks and the Banks shall be entitled
\n to rely on the authority of any Person purporting to be a Person
\n authorized by the Borrower to give such notice and the Administrative
\n Agent, the Issuing Banks and the Banks shall not have any liability to
\n such Borrower or any other Person on account of any action taken or not
\n taken by the Administrative Agent, the Issuing Banks or the Banks in
\n reliance upon such telephonic or facsimile notice. The obligation of
\n the Borrower to repay the Loans and drawings under Letters of Credit
\n shall not be affected in any way or to any extent by any failure by the
\n Administrative Agent, the Issuing Banks and the Banks to receive
\n written confirmation of any telephonic or facsimile notice or the
\n receipt by the Administrative Agent, the Issuing Banks and the Banks of
\n a confirmation which is at variance with the terms understood by the
\n Administrative Agent, the Issuing Banks or the Banks to be contained in
\n the telephonic or facsimile notice.<\/p>\n
12.03 No Waiver; Cumulative Remedies. No failure to exercise
\nand no delay in exercising, on the part of the Administrative Agent, any Issuing
\nBank or any Bank, any right, remedy, power or privilege hereunder, shall operate
\nas a waiver thereof; nor shall any single or partial exercise of any right,
\nremedy, power or privilege hereunder preclude any other or further exercise
\nthereof or the exercise of any other right, remedy, power or privilege.<\/p>\n
12.04 Costs and Expenses. The Borrower shall, whether or not
\nthe transactions contemplated hereby shall be consummated:<\/p>\n
(a) pay or reimburse on demand for all reasonable costs and
\n expenses incurred by the Administrative Agent, the Syndication Agent
\n and each Arranger in connection with the development, preparation,
\n delivery, administration, syndication of the Commitments under and
\n execution of, and any amendment, supplement, waiver or modification to
\n (in each case, whether or not consummated), this Agreement, any other
\n Loan Document and any other documents prepared in connection herewith
\n or therewith, and the consummation of the transactions contemplated
\n hereby and thereby, including the Attorney Costs incurred by the
\n Administrative Agent, the Syndication Agent or any Arranger with
\n respect thereto;<\/p>\n
(b) pay or reimburse each Bank, each Issuing Bank and the
\n Administrative Agent on demand for all reasonable costs and expenses
\n incurred by them in connection with the enforcement, attempted
\n enforcement, or preservation of any rights or remedies (including in
\n connection with any “workout” or restructuring regarding the Loans, and
\n including in any Insolvency Proceeding) under this Agreement (including
\n the guaranty contained in Article X), any other Loan Document, and any
\n such other documents,<\/p>\n
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including Attorney Costs incurred by the Administrative Agent, any
\n Issuing Bank and any Bank and any cost of any consultants retained by
\n the Administrative Agent; and<\/p>\n
(c) pay or reimburse the Administrative Agent and each Issuing
\n Bank on demand for all appraisal (including, without duplication, the
\n allocated cost of internal appraisal services), audit, environmental
\n inspection and review (including, without duplication, the allocated
\n cost of such internal services), search and filing costs, fees and
\n expenses, incurred or sustained by the Administrative Agent in
\n connection with the matters referred to under clause (b) of this
\n Section 12.04.<\/p>\n
12.05 Indemnity. Whether or not the transactions contemplated
\nhereby shall be consummated, the Borrower shall pay, indemnify, and hold each
\nBank, each Issuing Bank, the Administrative Agent, each Arranger, the
\nSyndication Agent and each of their respective officers, directors, employees,
\ncounsel, agents and attorneys- in-fact (each, an “Indemnified Person”) harmless
\nfrom and against any and all liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, charges, expenses or disbursements
\n(including Attorney Costs) of any kind or nature whatsoever with respect to (a)
\nany investigation, litigation or proceeding (including any Insolvency
\nProceeding) related to this Agreement or the Loan Documents or the Loans or the
\nLetters of Credit, or the use of the proceeds thereof, whether or not any
\nIndemnified Person is a party thereto and (b) the actual or alleged presence of
\nHazardous Materials in the air, surface water or groundwater or on the surface
\nor subsurface of any property owned, leased or at any time operated by Holdings
\nor any of its Subsidiaries, the generation, storage, transportation, handling or
\ndisposal of Hazardous Materials at any location by Holdings or any of its
\nSubsidiaries, whether or not owned, leased or operated by Holdings or any of its
\nSubsidiaries, the noncompliance of any property owned, leased or operated by
\nHoldings or any of its Subsidiaries with Environmental Laws (including
\napplicable permits thereunder) applicable to any such property, or any
\nEnvironmental Claim asserted against Holdings, any of its Subsidiaries or any
\nproperty owned, leased or at any time operated by Holdings or any of its
\nSubsidiaries, (all the foregoing described in (a) and (b) above, collectively,
\nthe “Indemnified Liabilities”); provided, however, that the Borrower shall have
\nno obligation hereunder to any Indemnified Person with respect to Indemnified
\nLiabilities arising from the gross negligence or willful misconduct of such
\nIndemnified Person as the same is determined by a final judgment of a court of
\ncompetent jurisdiction. The obligations in this Section 12.05 shall survive
\npayment of all other Obligations.<\/p>\n
12.06 Successors and Assigns. The provisions of this Agreement
\nshall be binding upon and inure to the benefit of the parties hereto and their
\nrespective successors and assigns, except that neither the Borrower nor Holdings
\nmay assign or transfer any of its rights or obligations under this Agreement
\nwithout the prior written consent of the Administrative Agent and each Bank.<\/p>\n
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12.07 Assignments, Participations, etc.<\/p>\n
(a) Any Bank may, with the written consent of the Borrower,
\nthe Administrative Agent and Bank of Americas as an Issuing Bank, which consents
\nshall not be unreasonably withheld or delayed, at any time assign and delegate
\nto one or more Eligible Assignees (provided that no written consent of the
\nBorrower shall be required either in connection with any assignment and
\ndelegation by a Bank to an Eligible Assignee that is a Bank Affiliate of such
\nBank or at any time that an Event of Default shall exist) (each an “Assignee”)
\nall, or any ratable part of all, of the Revolving Loans, Revolving Commitment
\nand the other rights and obligations of such Bank hereunder; provided, however,
\nthat any such assignment to an Eligible Assignee which is not a Bank or a Bank
\nAffiliate shall be in a minimum amount equal to the lesser of $5,000,000 or the
\nfull amount of the assignor Bank’s Revolving Loans and Revolving Commitment; and
\nprovided, still further, that the Borrower, the Issuing Banks and the
\nAdministrative Agent may continue to deal solely and directly with such Bank in
\nconnection with the interest so assigned to an Assignee until (i) written notice
\nof such assignment, together with payment instructions, addresses and related
\ninformation with respect to the Assignee, shall have been given to the Borrower
\nand the Administrative Agent by such Bank and the Assignee; (ii) such Bank and
\nits Assignee shall have delivered to the Borrower and the Administrative Agent
\nan Assignment and Acceptance in the form of Exhibit K (“Assignment and
\nAcceptance”); (iii) such assignment is recorded by the Administrative Agent in
\nthe Register pursuant to Section 2.02; and (iv) the assignor Bank or Assignee
\nhas paid to the Agent a processing fee in the amount of $3,500; and provided,
\nstill further, that any assignment must include an equal percentage of the
\nassignor Bank’s Revolving Commitment and Revolving Loans.<\/p>\n
(b) From and after the date that the Administrative Agent
\nnotifies the assignor Bank that the requirements of paragraph (a) above are
\nsatisfied, (i) the Assignee thereunder shall be a party hereto and, to the
\nextent that rights and obligations hereunder have been assigned to it pursuant
\nto such Assignment and Acceptance, shall have the rights and obligations of a
\nBank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
\nthat rights and obligations hereunder and under the other Loan Documents have
\nbeen assigned by it pursuant to such Assignment and Acceptance, relinquish its
\nrights and be released from its obligations under the Loan Documents. Anything
\nherein to the contrary notwithstanding, any Bank assigning all of its Revolving
\nLoans, Revolving Commitment and other rights and obligations hereunder to an
\nAssignee shall continue to have the benefit of all indemnities hereunder
\nfollowing such assignment.<\/p>\n
(c) Immediately upon each Assignee’s making its payment under
\nthe Assignment and Acceptance and the recordation of same by the Administrative
\nAgent in the Register pursuant to Section 2.02, this Agreement, shall be deemed
\nto be amended to the extent, but only to the extent, necessary to reflect the
\naddition of the Assignee and the resulting adjustment of the Aggregate Revolving
\nCommitment and the outstanding Revolving Loans arising therefrom.<\/p>\n
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(d) Any Bank may at any time sell to one or more banks or
\nother Persons (a “Participant”) participating interests in any Loans, the
\nCommitments of such Bank and the other interests of such Bank (the “Originating
\nBank”) hereunder and under the other Loan Documents; provided, however, that (i)
\nthe Originating Bank’s obligations under this Agreement shall remain unchanged,
\n(ii) the Originating Bank shall remain solely responsible for the performance of
\nsuch obligations, (iii) the Borrower, the Issuing Bank and the Administrative
\nAgent shall continue to deal solely and directly with the Originating Bank in
\nconnection with the Originating Bank’s rights and obligations under this
\nAgreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
\nany participating interest under which the Participant shall have rights to
\napprove any amendment to, or any consent or waiver with respect to, this
\nAgreement or any other Loan Document, provided that such Participant shall have
\nthe right to approve any amendment, consent or waiver described in clauses (ii)
\nand (iii) of the first proviso to Section 12.01. In the case of any such
\nparticipation, the Participant shall be entitled to the benefit of Sections
\n4.01, 4.03 and 12.05, subject to the same limitations, as though it were also a
\nBank hereunder, subject to clause (f) below, and if amounts outstanding under
\nthis Agreement are due and unpaid, or shall have been declared or shall have
\nbecome due and payable upon the occurrence of an Event of Default, each
\nParticipant shall, to the extent permitted under applicable law, be deemed to
\nhave the right of set-off in respect of its participating interest in amounts
\nowing under this Agreement to the same extent as if the amount of its
\nparticipating interest were owing directly to it as a Bank under this Agreement.<\/p>\n
(e) Notwithstanding any other provision contained in this
\nAgreement or any other Loan Document to the contrary, (i) any Bank may assign
\nall or any portion of the Revolving Loans held by it to any Federal Reserve Bank
\nor the United States Treasury as collateral security pursuant to Regulation A of
\nthe Federal Reserve Board and any Operating Circular issued by such Federal
\nReserve Bank, provided that any payment in respect of such assigned Revolving
\nLoans made by the Borrower or Holdings to or for the account of the assigning or
\npledging Bank in accordance with the terms of this Agreement shall satisfy the
\nBorrower’s or Holdings’ obligations hereunder in respect to such assigned
\nRevolving Loans to the extent of such payment and (ii) with the consent of the
\nAdministrative Agent, any Bank which is a fund may pledge all or any portion of
\nits Revolving Loans to its trustee in support of its obligations to its trustee.
\nNo such assignment shall release the assigning Bank from its obligations
\nhereunder.<\/p>\n
(f) No Participant shall be entitled to receive any greater
\npayment under Sections 4.01 or 4.03 than such Originating Bank would have been
\nentitled to receive with respect to the rights transferred unless such transfer
\nis made with the Borrower’s prior written consent.<\/p>\n
12.08 Confidentiality. Each Bank agrees to take normal and
\nreasonable precautions and exercise due care to maintain the confidentiality of
\nall information provided to it by Holdings, the Borrower or any Subsidiary of
\nHoldings, or by the Administrative Agent on Holdings’, the Borrower’s or such
\nSubsidiary’s behalf, in connection with this Agreement or any other Loan
\nDocument, and neither it nor any of its Affiliates shall use any such
\ninformation for any purpose or in any manner other than pursuant to the terms
\ncontemplated by this Agreement;<\/p>\n
-106-<\/p>\n
except to the extent such information (a) was or becomes generally available to
\nthe public other than as a result of a disclosure by the Bank, or (b) was or
\nbecomes available on a non-confidential basis from a source other than the
\nBorrower or Holdings, provided that such source is not bound by a
\nconfidentiality agreement with the Borrower or Holdings, known to the Bank;
\nprovided further, however, that any Bank may disclose such information (i) at
\nthe request or pursuant to any requirement of any Governmental Authority to
\nwhich the Bank is subject or in connection with an examination of such Bank by
\nany such authority; (ii) pursuant to subpoena or other court process; (iii) when
\nrequired to do so in accordance with the provisions of any applicable
\nRequirement of Law; (iv) to the extent reasonably required in connection with
\nany litigation or proceeding to which the Administrative Agent, such Bank or
\ntheir respective Affiliates may be party; (v) to the extent reasonably required
\nin connection with the exercise of any remedy hereunder or under any other Loan
\nDocument; and (vi) to such Bank’s independent auditors, other professional
\nadvisors and employees of such Bank’s Bank Affiliates (or any Affiliate of such
\nBank engaged in capital market transactions generally) retained by such Bank in
\nconnection with this Agreement so long as such Persons agree to maintain the
\nconfidentiality of all such information disclosed to them. Notwithstanding the
\nforegoing, the Borrower authorizes each Bank to disclose to any Participant or
\nAssignee (each, a “Transferee”) and to any prospective Transferee, such
\nfinancial and other information in such Bank’s possession concerning the
\nBorrower or its Subsidiaries or Holdings which has been delivered to the
\nAdministrative Agent or the Banks pursuant to this Agreement or which has been
\ndelivered to the Administrative Agent or the Banks by the Borrower or Holdings
\nin connection with the Banks’ credit evaluation of the Borrower prior to
\nentering into this Agreement; provided that, unless otherwise agreed by the
\nBorrower or Holdings, such Transferee agrees in writing to such Bank to keep
\nsuch information confidential to the same extent required of the Banks
\nhereunder.<\/p>\n
12.09 Set-off. In addition to any rights and remedies of the
\nBanks provided by law, if an Event of Default occurs and is continuing, each
\nBank is authorized at any time and from time to time, without prior notice to
\nthe Borrower or Holdings, any such notice being waived by the Borrower and
\nHoldings to the fullest extent permitted by law, to set off and apply, to the
\nextent permitted by applicable law, any and all deposits (general or special,
\ntime or demand, provisional or final) at any time held by, and other
\nindebtedness at any time owing to, such Bank to or for the credit or the account
\nof the Borrower or Holdings against any and all Obligations owing to such Bank,
\nnow or hereafter existing, irrespective of whether or not the Administrative
\nAgent or such Bank shall have made demand under this Agreement or any other Loan
\nDocument and although such Obligations may be contingent or unmatured. Each Bank
\nagrees promptly to notify the Borrower or Holdings and the Administrative Agent
\nafter any such set-off and application made by such Bank; provided, however,
\nthat the failure to give such notice shall not affect the validity of such
\nset-off and application. The rights of each Bank under this Section 12.09 are in
\naddition to the other rights and remedies (including other rights of set-off)
\nwhich the Bank may have.<\/p>\n
12.10 Notification of Addresses, Lending Offices, etc. Each
\nBank shall notify the Administrative Agent in writing of any changes in the
\naddress to which notices to the Bank should be directed, of addresses of its
\nLending Office, of payment instructions in respect of all<\/p>\n
-107-<\/p>\n
payments to be made to it hereunder and of such other administrative information
\nas the Administrative Agent shall reasonably request.<\/p>\n
12.11 Counterparts. This Agreement may be executed by one or
\nmore of the parties to this Agreement in any number of separate counterparts,
\neach of which, when so executed, shall be deemed an original, and all of said
\ncounterparts taken together shall be deemed to constitute but one and the same
\ninstrument. A set of the copies of this Agreement signed by all the parties
\nshall be lodged with the Borrower and the Administrative Agent.<\/p>\n
12.12 Severability. The illegality or unenforceability of any
\nprovision of this Agreement or any instrument or agreement required hereunder
\nshall not in any way affect or impair the legality or enforceability of the
\nremaining provisions of this Agreement or any instrument or agreement required
\nhereunder.<\/p>\n
12.13 No Third Parties Benefited. This Agreement is made and
\nentered into for the sole protection and legal benefit of the parties hereto and
\ntheir permitted successors and assigns, and no other Person shall be a direct or
\nindirect legal beneficiary of, or have any direct or indirect cause of action or
\nclaim in connection with, this Agreement or any of the other Loan Documents
\n(other than the Arrangers and the Syndication Agent). None of the Administrative
\nAgent, the Syndication Agent, any Arranger, any Issuing Bank or any Bank shall
\nhave any obligation to any Person not a party to this Agreement or any other
\nLoan Document.<\/p>\n
12.14 Governing Law and Jurisdiction.<\/p>\n
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
\nACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.<\/p>\n
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
\nAGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE
\nOF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
\nBY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO
\nCONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
\nJURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
\nTHE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
\nTHE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
\nMAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
\nJURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
\nPARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
\nPROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.<\/p>\n
12.15 Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE THEIR
\nRESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
\nOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER<\/p>\n
-108-<\/p>\n
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
\nACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
\nAGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
\nTORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR
\nCAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
\nTHE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
\nBY JURY IS WAIVED BY OPERATION OF THIS SECTION 12.15 AS TO ANY ACTION,
\nCOUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
\nTHE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
\nANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
\nAMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
\nOTHER LOAN DOCUMENTS.<\/p>\n
12.16 Domicile of Loans. Each Bank may transfer and carry its
\nRevolving Loans at, to or for the account of any office, Subsidiary or Affiliate
\nof such Bank. Notwithstanding anything to the contrary contained herein, to the
\nextent that a transfer of Revolving Loans pursuant to this Section 12.16 would,
\nat the time of such transfer, result in increased costs under Sections 4.01,
\n4.03 or 4.06 from those being charged by the respective Bank prior to such
\ntransfer, then the Borrower shall not be obligated to pay such increased costs
\n(although the Borrower shall be obligated to pay any other increased costs of
\nthe type described above resulting from changes after the date of the respective
\ntransfer).<\/p>\n
12.17 Financial Information. Notwithstanding anything to
\ncontrary contained in Sections 5.01(o)(i) and 5.01(o)(iv), the Banks hereby
\nagree that the Pro Forma Balance Sheet required by Section 5.01(o)(i) and the
\ndraft of the audited consolidated financial statements of Holdings for its
\nfiscal year ended December 31, 1997 required by Section 5.01(o)(iv) do not need
\nto be delivered on or prior to the Closing Date, but instead are required to be
\ndelivered, (x) in the case of the Pro Forma Balance Sheet, on or prior to April
\n8, 1998, and (y) in the case of the draft of the audited consolidated financial
\nstatements of Holdings for its fiscal year ended December 31, 1997, on or prior
\nto any Borrowing of Revolving Loans.<\/p>\n
-109-<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be duly executed and delivered by their proper and duly authorized
\nofficers as of the day and year first above written.<\/p>\n
AMERICAN LAWYER MEDIA HOLDINGS, INC.<\/p>\n
By: \/s\/ Anup Bagaria
\n ——————————-
\n Neme: Anup Bagaria
\n Title: Vice President<\/p>\n
Address for notices:
\n c\/o Wassertein Perella & Co., Inc.
\n 31 West 52nd Street, 27th Floor
\n New York, NY 10019
\n Attn:. Anup Bagaria
\n Facsimile: (212) 969-7879
\n Tel: (212) 969-2609<\/p>\n
AMERICAN LAWYER MEDIA, INC.<\/p>\n
By: \/s\/ Anup Bagaria
\n ——————————-
\n Name: Anup Bagaria
\n Title: Vice President<\/p>\n
Address for notices:
\n c\/o Wassertein Perella & Co., Inc.
\n 31 West 52nd Street, 27th Floor
\n New York, NY 10019
\n Attn:. Anup Bagaria
\n Facsimile: (212) 969-7879
\n Tel: (212) 969-2609<\/p>\n
-110-<\/p>\n
BANK OF AMERICA NATIONAL TRUST AND
\n SAVINGS ASSOCIATION, as
\n Administrative Agent<\/p>\n
By \/s\/ Dietmar Schiel
\n ——————————-
\n Title: Vice President<\/p>\n
Address for Notices of
\n Borrowing\/Conversions\/
\n Continuations, payments,
\n presentments and other
\n administrative matters:<\/p>\n
1850 Gateway Boulevard, 5th Floor
\n Concord, CA 94520
\n Attn: Agency Administrative
\n Services #5596
\n Josephine T. Flores,
\n Assistant Vice President<\/p>\n
Facsimile: (510) 675-8500
\n Tel: (510) 675-8374<\/p>\n
Address for all other notices
\n (including with respect to
\n amendments and waivers:<\/p>\n
1455 Market Street, 12th Floor
\n San Francisco, CA 94103
\n Attn:. Agency Management Services
\n #108321
\n Dietmar Schiel, Vice
\n President
\n Facsimile: (415) 436-3425
\n Tel: (415) 436-2769<\/p>\n
-111-<\/p>\n
BANK OF AMERICA NATIONAL TRUST AND
\n SAVINGS ASSOCIATION, as an Issuing Bank<\/p>\n
By \/s\/ Andrea Katter
\n ——————————-
\n Title: Managing Director<\/p>\n
Address for notices:<\/p>\n
Bank of America National Trust and
\n Savings Association<\/p>\n
CBG Letters of Credit (#32054)
\n 200 W. Jackson Blvd., 17th Floor
\n Chicago, IL 60606
\n Attn: Gail S. Miller
\n Facsimile: (312) 987-6828
\n Tel: (312) 923-5924<\/p>\n
with a copy to:<\/p>\n
1850 Gateway Boulevard, 5th Floor
\n Concord, CA 94520
\n Attn.: Agency Administrative<\/p>\n
Services #5596
\n Josephine T. Flores,
\n Assistant Vice President<\/p>\n
Facsimile: (510) 675-8500<\/p>\n
Tel: (510) 675-8374<\/p>\n
-112-<\/p>\n
BANK OF AMERICA NATIONAL TRUST AND
\n SAVINGS ASSOCIATION, as a Bank<\/p>\n
By \/s\/ Andrea Katter
\n ——————————-
\n Title: Managing Director<\/p>\n
-113-<\/p>\n
BANCAMERICA ROBERTSON STEPHENS
\n as an Arranger<\/p>\n
By \/s\/ Amy S. Trapp
\n ——————————-
\n Title: Managing Director<\/p>\n
-114-<\/p>\n
BANKBOSTON, N.A., as Bank and
\n as an Issuing Bank<\/p>\n
By \/s\/ Jennifer R. Buras
\n ——————————-
\n Title: Director<\/p>\n
Address for notices:<\/p>\n
100 Federal Street, 01-08-08
\n Boston, MA 02110
\n Attn: Jennifer R. Buras
\n Director<\/p>\n
Facsimile: (617) 434-3401
\n Tel: (617) 434-5790<\/p>\n
-115-<\/p>\n
BANCBOSTON SECURITIES INC.,
\n as Syndication Agent and as an Arranger<\/p>\n
By \/s\/ Julia D. Van Trees
\n ——————————-
\n Title: Managing Director<\/p>\n
-116-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6674,6846,6851],"corporate_contracts_industries":[9415,9467],"corporate_contracts_types":[9561,9560],"class_list":["post-40950","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-american-lawyer-media-inc","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-bankboston-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-media__newspapers","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40950","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40950"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40950"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40950"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40950"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}