\nTermination or reduction of Commitments 2
\nBorrowing or optional prepayment of, or Conversions
\ninto, ABR Loans (other than Swing Loans) Same day
\nBorrowing or optional prepayment of, Conversions into,
\nContinuations as, or duration of Interest Periods for,
\nLIBOR Loans 3
\n<\/c><\/s><\/caption>\n<\/table>\n Each such notice of termination or reduction shall specify the amount and
\nthe Class of the Commitments to be terminated or reduced. Each such notice of
\nborrowing, Conversion, Continua-<\/p>\n
-54-<\/p>\n
tion or prepayment shall specify the Class of Loans to be borrowed, Converted,
\nContinued or prepaid and the amount (subject to Section 4.04) and Type of each
\nLoan to be borrowed, Converted, Continued or prepaid and the date of borrowing,
\nConversion, Continuation or prepayment (which shall be a Business Day). Each
\nsuch notice of the duration of an Interest Period shall specify the Loans to
\nwhich such Interest Period is to relate. If any amount (other than any amount in
\nrespect of interest or principal on the Loans or in respect of Reimbursement
\nObligations) required to be paid under this Agreement shall become due and
\nremains unpaid, on and after the sixth day following the day that Administrative
\nAgent has notified Borrower that such amount has become due and is unpaid, the
\nAdministrative Agent may cause such event to be deemed irrevocably a request for
\na Revolving Loan on any Business Day on or after such sixth day designated by
\nAdministrative Agent and in the amount required to pay any portion of such
\namount that remains unpaid. If any amount in respect of interest, principal or
\nin respect of Reimbursement Obligations is required to be paid under this
\nAgreement and shall become due and remains (i) in the case of interest, unpaid
\nat 11:00 a.m., New York City time, on the third Business Day after such amount
\nhas become due, (ii) in the case of principal, unpaid at 11:00 a.m., New York
\nCity time, on the Business Day such amount becomes due and (iii) in the case of
\na Reimbursement Obligation, on the Business Day on which such amount has become
\ndue, unless the applicable L\/C Lender gives notice to Borrower of a repayment
\ndemand after 12 noon on such date or a day which is not a Business Day, in which
\ncase, if such amount remains unpaid at 1:00 p.m. on the next succeeding Business
\nDay, Administrative Agent may cause such event to be deemed irrevocably a
\nrequest for a Revolving Loan for such unpaid amount on the Business Day
\nspecified in the immediately preceding clause (i), (ii) or (iii), as applicable.
\nUnless otherwise consented to by Agents in their sole discretion, prior to the
\nearlier of (x) five days after the Closing Date and (y) the date on which
\nBorrower has been notified by the Lead Arranger that the primary syndication of
\nthe Commitments has been completed, no borrowing of or Conversion into any LIBOR
\nLoan may be made, and, in addition to the foregoing limitation, prior to the
\nearlier of (x) 30 days after the Closing Date and (y) the date on which Borrower
\nhas been notified by the Lead Arranger that the primary syndication of the
\nCommitments has been completed, no Interest Period of more than one month may be
\nelected. Administrative Agent shall promptly notify the Lenders of the contents
\nof each such notice. In the event that Borrower fails to select the Type of
\nLoan, or the duration of any Interest Period for any LIBOR Loan, within the time
\nperiod and otherwise as provided in this Section 4.05, such Loan (i) if
\noutstanding as a LIBOR Loan, will, in the case of a Revolving Loan, be
\nautomatically Converted into an ABR Loan or, in the case of a Term B Facility
\nLoan, be automatically continued as a LIBOR Loan having an Interest Period of
\none month, in each case, on the last day of the then current Interest Period for
\nsuch Loan or (ii) if outstanding as an ABR Loan, will remain as, or (if not then
\noutstanding) will be made as, an ABR Loan.<\/p>\n
As an accommodation to Borrower, Administrative Agent may permit telephonic
\nor electronic requests for Loans and telephonic or electronic transmittal of
\ninstructions, authorizations, agreements or reports to Administrative Agent from
\nBorrower. Unless Borrower specifically directs Administrative Agent in writing
\nnot to accept or act upon telephonic or electronic communications from Borrower,
\nAdministrative Agent shall have no liability to Borrower or any Obligor for any
\nloss or damage suffered by Borrower or any Obligor as a result of Administrative
\nAgent’s honoring of any requests, execution of instructions, authorizations or
\nagreements or reliance on any reports communicated to Administrative Agent
\ntelephonically or electronically and purporting to have been sent to
\nAdministrative Agent by Borrower and Administrative Agent shall have no duty to
\nverify the origin of any such communication or the authority of the person
\nsending it.<\/p>\n
-55-<\/p>\n
4.06. Non-Receipt of Funds by Administrative Agent. Unless Administrative
\nAgent shall have received written notice from a Lender or Borrower (the “Payor”)
\nprior to the date on which the Payor is to make payment to Administrative Agent
\nof (in the case of a Lender) the proceeds of a Loan to be made by such Lender
\nhereunder or a payment to Administrative Agent for the account of one or more of
\nthe Lenders hereunder (each such payment being herein called a “Required
\nPayment”), which notice shall be effective upon receipt, that the Payor does not
\nintend to make the Required Payment to Administrative Agent, Administrative
\nAgent may assume that the Required Payment has been made and may, in reliance
\nupon such assumption (but shall not be required to), make the amount thereof
\navailable to the intended recipient(s) on such date; and, if the Payor has not
\nin fact made the Required Payment to Administrative Agent, the recipient(s) of
\nsuch payment shall, on demand, repay to Administrative Agent the amount so made
\navailable together with interest thereon in respect of each day during the
\nperiod commencing on the date (the “Advance Date”) such amount was so made
\navailable by Administrative Agent until the date Administrative Agent recovers
\nsuch amount at a rate per annum equal to the Federal Funds Rate for such day
\nand, if such recipient(s) shall fail promptly to make such payment,
\nAdministrative Agent shall be entitled to recover such amount, on demand, from
\nthe Payor, together with interest as aforesaid; provided, however, that if
\nneither the recipient(s) nor the Payor shall return the Required Payment to
\nAdministrative Agent within three Business Days of the date such demand was
\nmade, then, retroactively to the Advance Date, the Payor and the recipient(s)
\nshall each be obligated to pay interest on the Required Payment as follows
\n(without double recovery):<\/p>\n
(i) if the Required Payment shall represent a payment to be made by
\n Borrower to the Lenders, Borrower and the recipient(s) shall each be
\n obligated retroactively to the Advance Date to pay interest in respect of
\n the Required Payment at the rate set forth in Section 3.02(b) (without
\n duplication of the obligation of Borrower under Section 3.02 to pay
\n interest on the Required Payment at the rate set forth in Section 3.02(b)),
\n it being understood that the return by the recipient(s) of the Required
\n Payment to Administrative Agent shall not limit such obligation of Borrower
\n under Section 3.02 to pay interest at the rate set forth in Section 3.02(b)
\n in respect of the Required Payment; and<\/p>\n
(ii) if the Required Payment shall represent proceeds of a Loan to be
\n made by the Lenders to Borrower, the Payor, or Borrower, shall each be
\n obligated retroactively to the Advance Date to pay interest in respect of
\n the Required Payment pursuant to Section 3.02, it being understood that the
\n return by Borrower of the Required Payment to Administrative Agent shall
\n not limit any claim Borrower may have against the Payor in respect of such
\n Required Payment.<\/p>\n
4.07. Right of Setoff; Sharing of Payments; Etc. (a) If any Event of
\nDefault shall have occurred and be continuing, each Obligor agrees that, in
\naddition to (and without limitation of) any right of setoff, banker’s lien or
\ncounterclaim a Lender may otherwise have, each Lender shall be entitled, at its
\noption (to the fullest extent permitted by law), to set off and apply any
\ndeposit (general or special, time or demand, provisional or final), or other
\nindebtedness, held by it, or by any of its Affiliates, for the credit or account
\nof such Obligor at any of its offices, in Dollars or in any other currency,
\nagainst any principal of or interest on any of such Lender’s Loans,
\nReimbursement Obligations or any other amount payable to such Lender hereunder
\nthat is not paid when due (regardless of whether such deposit or other
\nindebtedness is then due to such Obligor), in which case it shall<\/p>\n
-56-<\/p>\n
promptly notify such Obligor and Administrative Agent thereof; provided,
\nhowever, that such Lender’s failure to give such notice shall not affect the
\nvalidity thereof.<\/p>\n
(b) Each of the Lenders agrees that, if it should receive (other than
\npursuant to Section 5 or Administrative Agent’s Fee Letter) any amount hereunder
\n(whether by voluntary payment, by realization upon security, by the exercise of
\na right of setoff or banker’s lien, by counterclaim or cross action, by the
\nenforcement of any right under the Credit Documents, or otherwise) which is
\napplicable to the payment of the principal of, or interest on, the Loans,
\nReimbursement Obligations or fees, the sum of which with respect to the related
\nsum or sums received by other Lenders is in a greater proportion than the total
\nof such amounts then owed and due to such Lender bears to the total of such
\namounts then owed and due to all of the Lenders immediately prior to such
\nreceipt, then such Lender receiving such excess payment shall purchase for cash
\nwithout recourse or warranty from the other Lenders an interest in the
\nObligations of the respective Obligor to such Lenders in such amount as shall
\nresult in a proportional participation by all of the Lenders in such amount;
\nprovided, however, that if all or any portion of such excess amount is
\nthereafter recovered from such Lender, such purchase shall be rescinded and the
\npurchase price restored to the extent of such recovery, but without interest.
\nBorrower consents to the foregoing arrangements.<\/p>\n
(c) Borrower agrees, to the fullest extent permitted under applicable law,
\nthat any Lender so purchasing such a participation may exercise all rights of
\nsetoff, banker’s lien, counterclaim or similar rights with respect to such
\nparticipation as fully as if such Lender were a direct holder of Loans or other
\namounts (as the case may be) owing to such Lender in the amount of such
\nparticipation.<\/p>\n
(d) Nothing contained herein shall require any Lender to exercise any such
\nright or shall affect the right of any Lender to exercise, and retain the
\nbenefits of exercising, any such right with respect to any other Indebtedness or
\nobligation of any Obligor. If, under any applicable bankruptcy, insolvency or
\nother similar law, any Lender receives a secured claim in lieu of a setoff to
\nwhich this Section 4.07 applies, such Lender shall, to the extent practicable,
\nexercise its rights in respect of such secured claim in a manner consistent with
\nthe rights of the Lenders entitled under this Section 4.07 to share in the
\nbenefits of any recovery on such secured claim.<\/p>\n
Section 5. Yield Protection, Etc.<\/p>\n
5.01. Additional Costs. (a) If the adoption of, or any change in, in each
\ncase after (i) in the case of any Original Lender, the date hereof or (ii) in
\nthe case of any other Lender, the date upon which it shall have become a Lender
\nhereunder, any Requirement of Law or in the interpretation or application
\nthereof or compliance by any Lender with any request or directive (whether or
\nnot having the force of law) from any central bank or other Governmental
\nAuthority or the NAIC made subsequent to the date hereof:<\/p>\n
(i) shall impose, modify or hold applicable any reserve, special
\n deposit, compulsory loan or similar requirement against assets held by,
\n deposits or other liabilities in or for the account of, advances, loans or
\n other extensions of credit by, or any other acquisition of funds by, any
\n office of such Lender or L\/C Lender which is not otherwise included in the
\n determination of the LIBO Rate hereunder; or<\/p>\n
-57-<\/p>\n
(ii) shall impose on such Lender or L\/C Lender any other condition
\n (excluding taxes);<\/p>\n
and the result of any of the foregoing is to increase the cost to such Lender or
\nL\/C Lender, by an amount which such Lender or L\/C Lender deems to be material
\n(and it is the policy of such Lender or L\/C Lender to seek reimbursement from a
\nborrower for such amount), of making, converting into, continuing or maintaining
\nLIBOR Loans or issuing or participating in Letters of Credit or to reduce any
\namount receivable hereunder in respect thereof then, in any such case, Borrower
\nshall, within 15 days of written demand therefor, pay such Lender or L\/C Lender
\nany additional amounts necessary to compensate such Lender or L\/C Lender on a
\nnet after-tax basis (taking into account any additional tax costs or tax
\nbenefits) for such increased cost or reduced amount receivable. If any Lender or
\nL\/C Lender becomes entitled to claim any additional amounts pursuant to this
\nsubsection, it shall promptly notify Borrower, through Administrative Agent, of
\nthe event by reason of which it has become so entitled and Borrower shall not be
\nrequired to make any payments to any Lender or L\/C Lender under this Section
\n5.01(a) in respect of any period or portion thereof more than 120 days prior to
\nits receipt of notice thereof from such Lender or L\/C Lender. A certificate as
\nto any additional amounts setting forth the calculation of such additional
\namounts pursuant to this Section 5.01 submitted by such Lender or L\/C Lender,
\nthrough Administrative Agent, to Borrower shall be conclusive in the absence of
\nclearly demonstrable error. Without limiting the survival of any other
\nprovisions hereof, this Section 5.01 shall survive the termination of this
\nAgreement and the payment of the Notes and all other Obligations payable
\nhereunder.<\/p>\n
(b) In the event that any Lender or L\/C Lender shall have determined that
\nthe adoption, after (i) in the case of any Original Lender, the date hereof or
\n(ii) in the case of any other Lender, the date upon which it shall have become a
\nLender hereunder of any law, rule, regulation or guideline regarding capital
\nadequacy (or any change after the date hereof therein or in the interpretation
\nor application thereof) or compliance by any Lender or L\/C Lender or any
\ncorporation controlling such Lender or L\/C Lender with any request or directive
\nregarding capital adequacy (whether or not having the force of law) from any
\ncentral bank or other Governmental Authority or the NAIC, in each case, made
\nsubsequent to (i) in the case of any Original Lender, the date hereof or (ii) in
\nthe case of any other Lender, the date upon which it shall have become a Lender
\nhereunder, including, without limitation, the issuance, after (i) in the case of
\nany Original Lender, the date hereof or (ii) in the case of any other Lender,
\nthe date upon which it shall have become a Lender hereunder, of any final rule,
\nregulation or guideline, does or shall have the effect of reducing the rate of
\nreturn on such Lender’s or L\/C Lender’s, or such corporation’s capital, as a
\nconsequence of its obligations hereunder or under any Letter of Credit to a
\nlevel below that which such Lender or L\/C Lender or such corporation, could have
\nachieved but for such adoption, change or compliance (taking into consideration
\nsuch Lender’s or L\/C Lender’s or such corporation’s policies with respect to
\ncapital adequacy) by an amount deemed by such Lender or L\/C Lender to be
\nmaterial (and it is the policy of such Lender or L\/C Lender to seek
\nreimbursement from a borrower for such amounts), then from time to time, after
\nsubmission by such Lender or L\/C Lender to Borrower (with a copy to
\nAdministrative Agent) of a written request therefor, setting forth in reasonable
\ndetail the additional amount or amounts requested, the reason or reasons
\ntherefor and the computation thereof, Borrower shall, within 15 days of its
\nreceipt of such request, promptly pay to such Lender or L\/C Lender such
\nadditional amount or amounts as will compensate such Lender or L\/C Lender for
\nsuch reduction; provided that Borrower shall not be required to make any
\npayments to any Lender or L\/C Lender under this Section 5.01(b) in respect of
\nany period or por-<\/p>\n
-58-<\/p>\n
tion thereof more than 90 days prior to its receipt of a request therefor from
\nsuch Lender or L\/C Lender.<\/p>\n
5.02. Inability To Determine Interest Rate. If prior to the first day of
\nany Interest Period: (a) Administrative Agent shall have determined (which
\ndetermination shall be conclusive and binding upon Borrower) that, by reason of
\ncircumstances affecting the relevant market, adequate and reasonable means do
\nnot exist for ascertaining the LIBOR Base Rate for such Interest Period, or (b)
\nAdministrative Agent shall have received notice from Majority Lenders that the
\nLIBOR Base Rate determined or to be determined for such Interest Period will not
\nadequately and fairly reflect the cost to such Lenders (or any affiliate of any
\nsuch Lender from which such Lender customarily obtains funds) (as conclusively
\ncertified by such Lenders) of making or maintaining their affected Loans during
\nsuch Interest Period, Administrative Agent shall give telecopy or telephonic
\nnotice thereof to Borrower and the Lenders as soon as practicable thereafter. If
\nsuch notice is given (x) any LIBOR Loans requested to be made on the first day
\nof such Interest Period shall be made as ABR Loans, (y) any Loans that were to
\nhave been Converted on the first day of such Interest Period to LIBOR Loans
\nshall be Continued as ABR Loans and (z) any outstanding LIBOR Loans that were to
\nhave been Continued as such for such Interest Period shall be Converted, on the
\nfirst day of such Interest Period, to ABR Loans. Until such notice has been
\nwithdrawn by Administrative Agent, no further LIBOR Loans shall be made or
\nContinued as such, nor shall Borrower have the right to Convert Loans to, LIBOR
\nLoans.<\/p>\n
5.03. Illegality. Notwithstanding any other provision of this Agreement, in
\nthe event that any change (i) in the case of any Original Lender, after the date
\nhereof or (ii) in the case of any other Lender, the date upon which it shall
\nhave become a Lender hereunder in any Requirement of Law or in the
\ninterpretation or application thereof shall make it unlawful for any Lender or
\nL\/C Lender or its Applicable Lending Office to honor its obligation to make or
\nmaintain LIBOR Loans or issue Letters of Credit hereunder (and, in the sole
\nopinion of such Lender or L\/C Lender, the designation of a different Applicable
\nLending Office would either not avoid such unlawfulness or would be
\ndisadvantageous to such Lender or L\/C Lender), then such Lender or L\/C Lender
\nshall promptly notify Borrower thereof (with a copy to Administrative Agent) and
\nsuch Lender’s or L\/C Lender’s obligation to make or Continue, or to Convert
\nLoans of any other Type into, LIBOR Loans or issue Letters of Credit shall be
\nsuspended until such time as such Lender or L\/C Lender may again make and
\nmaintain LIBOR Loans or issue Letters of Credit (in which case the provisions of
\nSection 5.04 shall be applicable).<\/p>\n
5.04. Treatment of Affected Loans. If the obligation of any Lender to make
\nLIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans shall be
\nsuspended pursuant to Section 5.03, such Lender’s LIBOR Loans shall be
\nautomatically Converted into ABR Loans on the last day(s) of the then current
\nInterest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
\nmay specify to Borrower with a copy to Administrative Agent as is required by
\nlaw) and, unless and until such Lender gives notice as provided below that the
\ncircumstances specified in Section 5.03 which gave rise to such Conversion no
\nlonger exist:<\/p>\n
(i) to the extent that such Lender’s LIBOR Loans have been so
\n Converted, all payments and prepayments of principal which would otherwise
\n be applied to such Lender’s LIBOR Loans shall be applied instead to its ABR
\n Loans; and<\/p>\n
-59-<\/p>\n
(ii) all Loans which would otherwise be made or Continued by such
\n Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
\n all ABR Loans of such Lender which would otherwise be Converted into LIBOR
\n Loans shall remain as ABR Loans, interest on which shall, in each case, be
\n paid on the dates upon which interest is payable on the corresponding LIBOR
\n Loans of the other Lenders.<\/p>\n
If such Lender gives notice to Borrower with a copy to Administrative Agent that
\nthe circumstances specified in Section 5.03 which gave rise to the Conversion of
\nsuch Lender’s LIBOR Loans pursuant to this Section 5.04 no longer exist (which
\nsuch Lender agrees to do promptly upon such circumstances ceasing to exist) at a
\ntime when LIBOR Loans are outstanding, such Lender’s ABR Loans shall be
\nautomatically Converted, on the first day(s) of the next succeeding Interest
\nPeriod(s) for such outstanding LIBOR Loans, to the extent necessary so that,
\nafter giving effect thereto, all Loans held by the Lenders holding LIBOR Loans
\nand by such Lender are held pro rata (as to principal amounts, Types and
\nInterest Periods) in accordance with their respective Commitments.<\/p>\n
5.05. Compensation. (a) Borrower agrees to indemnify each Lender and to
\nhold each Lender harmless from any loss or expense which such Lender may sustain
\nor incur as a consequence of (1) default by Borrower in payment when due of the
\nprincipal amount of or interest on any LIBOR Loan, (2) default by Borrower in
\nmaking a borrowing of, Conversion into or Continuation of LIBOR Loans after
\nBorrower has given a notice requesting the same in accordance with the
\nprovisions of this Agreement, (3) default by Borrower in making any prepayment
\nof any LIBOR Loans after Borrower has given a notice thereof in accordance with
\nthe provisions of this Agreement, or (4) the Conversion or the making of a
\npayment or a prepayment of LIBOR Loans on a day which is not the last day of an
\nInterest Period with respect thereto, including in each case, any such loss
\n(excluding loss of margin) or expense arising from the deployment of funds
\nobtained by it or from fees payable to terminate the deposits from which such
\nfunds were obtained.<\/p>\n
(b) For the purpose of calculation of all amounts payable to a Lender under
\nthis Section 5.05, each Lender shall be deemed to have actually funded its
\nrelevant LIBOR Loan through the purchase of a deposit bearing interest at the
\nLIBO Rate in an amount equal to the amount of such LIBOR Loan and having a
\nmaturity comparable to the relevant Interest Period; provided, however, that
\neach Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
\nforegoing assumption shall be utilized only for the calculation of amounts
\npayable under this subsection. Any Lender requesting compensation pursuant to
\nthis Section 5.05 will furnish to Administrative Agent and Borrower a
\ncertificate setting forth in reasonable detail the basis for such request, the
\namount requested and the calculation thereof, and such certificate, absent
\nmanifest error, shall be conclusive. Without limiting the survival of any other
\nprovision hereof, this Section 5.05 shall survive the termination of this
\nAgreement and the payment of the Notes and all other amounts payable hereunder.<\/p>\n
5.06. Net Payments. (a) Except as provided in Section 5.06(b), all payments
\nmade by any Obligor hereunder or under any Note or any Guarantee will be made
\nwithout setoff, counterclaim or other defense. Except as provided in Section
\n5.06(b), all such payments will be made free and clear of, and without deduction
\nor withholding for, any present or future Taxes now or hereafter imposed by any
\nGovernmental Authority or by any political subdivision or taxing authority
\nthereof or therein with respect to such payments (but excluding any Excluded
\nTax) and all interest, penalties or similar liabilities with respect thereto
\n(all such Taxes (other than Excluded Taxes) being referred to<\/p>\n
-60-<\/p>\n
collectively as “Covered Taxes”). If any Covered Taxes are so levied or imposed,
\neach Obligor agrees on a joint and several basis to pay the full amount of such
\nCovered Taxes, and such additional amounts as may be necessary so that every
\npayment of all amounts due under this Agreement, the Guarantees or under any
\nNote, after withholding or deduction for or on account of any Covered Taxes,
\nwill not be less than the amount provided for herein or in such Note. Each
\nObligor will furnish to Administrative Agent within 45 days after the date the
\npayment of any Covered Taxes is due pursuant to applicable law certified copies
\nof tax receipts or other documentation reasonably satisfactory to such Lender
\nevidencing such payment by such Obligor. The Obligors agree to jointly and
\nseverally indemnify and hold harmless each Lender, and reimburse such Lender
\nupon its written request, for the amount of any Covered Taxes so levied or
\nimposed and paid by such Lender and any liability (including penalties,
\nadditions to tax, interest and expenses) arising therefrom or with respect
\nthereto.<\/p>\n
“Excluded Taxes” shall mean any Tax (other than any Other Taxes) (i)
\nimposed on or measured by the income or profits of a Lender pursuant to the laws
\nof the jurisdiction in which it is organized or the jurisdiction in which the
\nprincipal office or Applicable Lending Office of such Lender is located or any
\njurisdiction in which such Lender conducts business or any subdivision thereof,
\n(ii) imposed on any Lender in the nature of franchise taxes or other similar
\ntaxes imposed as a result of such Lender doing business in a particular
\njurisdiction, or (iii) imposed by reason of any present or former connection
\nbetween a Lender and the jurisdiction imposing such Taxes, other than solely as
\na result of this Agreement or any Note or transaction contemplated hereby.<\/p>\n
(b) Each Lender that is not a United States person (as such term is defined
\nin Section 7701(a)(30) of the Code) (a “Non-U.S. Lender”) agrees to deliver to
\nBorrower and Administrative Agent on or prior to the Effective Date or, in the
\ncase of a Lender that is an assignee or transferee of an interest under this
\nAgreement pursuant to Section 12.05 (unless the assignee or transferee Lender
\nwas already a Lender hereunder immediately prior to such assignment or transfer
\nand was in compliance with this Section 5.06(b) as of the date of such
\nassignment or transfer), on the date of such assignment or transfer to such
\nLender, (i) two accurate and complete original signed copies of Internal Revenue
\nService Form W-8ECI or W-8BEN (certifying that the Lender is entitled to the
\nbenefits of an income tax treaty) (or successor forms) certifying to such
\nLender’s entitlement to a complete exemption from United States withholding tax
\nwith respect to payments to be made under this Agreement and under any Note or
\nany Guarantee (or, with respect to any assignee Lender, at least as extensive as
\nthe assigning Lender), or (ii) if the Lender is not a “bank” within the meaning
\nof Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
\nService Form W-8ECI or W-8BEN (certifying that the Lender is entitled to the
\nbenefits of an income tax treaty) pursuant to clause (i) above, (x) a
\ncertificate substantially in the form of Exhibit I (any such certificate, a
\n“Foreign Lender Certificate”) and (y) two accurate and complete original signed
\ncopies of Internal Revenue Service Form W-8BEN (or successor form) certifying to
\nsuch Lender’s entitlement to a complete exemption from United States withholding
\ntax with respect to payments to be made under this Agreement and under any Note
\n(or, with respect to any assignee Lender, at least as extensive as the assigning
\nLender). In addition, each Lender agrees that from time to time after the
\nClosing Date, when a lapse in time or change in circumstances renders the
\nprevious certification obsolete or inaccurate in any material respect when the
\nprevious certification expires due to the passage of time, it will deliver to
\nBorrower and Administrative Agent two new accurate and complete original signed
\ncopies of Internal Revenue Service Form W-8ECI or W-8BEN (certifying that the
\nLender is entitled to the benefits of an income tax treaty), or Form W-8BEN and
\na Foreign Lender Certificate, as the case may be, and such other forms<\/p>\n
-61-<\/p>\n
as may be required in order to confirm or establish the entitlement of such
\nLender to a continued exemption from or (if continued exemption becomes
\nunavailable) reduction in United States withholding tax with respect to payments
\nunder this Agreement and any Note or any Guarantee, or it shall immediately
\nnotify Borrower and Administrative Agent of its inability to deliver any such
\nForm or Certificate, in which case such Lender shall not be required to deliver
\nany such form or certificate pursuant to this Section 5.06(b) for so long as
\nsuch payments may be made free from United States withholding tax.
\nNotwithstanding the foregoing, no Lender shall be required to deliver any such
\nform or certificate pursuant to the immediately preceding sentence if a change
\nin treaty, law or regulation has occurred prior to the date on which such
\ndelivery would otherwise be required that renders any such form or certificate
\ninapplicable or would prevent the Lender from duly completing and delivering any
\nsuch form or certificate with respect to it and such Lender so advises Borrower.
\nNo Obligor shall be required to indemnify any Non-U.S. Lender, or to pay any
\nadditional amounts to any Non-U.S. Lender, in respect of any Covered Taxes to
\nthe extent that the obligation to pay such Covered Taxes would not have arisen
\nbut for a failure by such Non-U.S. Lender to comply with the provisions of this
\nSection 5.06(b). Notwithstanding anything to the contrary contained in this
\nSection 5.06, Borrower agrees to pay additional amounts and to indemnify each
\nLender in the manner set forth in Section 5.06(a) (without regard to the
\nidentity of the jurisdiction requiring the deduction or withholding) in respect
\nof any amounts deducted or withheld by it as described in the immediately
\npreceding sentence as a result of any changes after (i) in the case of any
\nOriginal Lenders, the Effective Date and (ii) in the case of any other Lender,
\nthe date upon which it shall have become a Lender hereunder, in any applicable
\nlaw, treaty, governmental rule, regulation, guideline or order, or in the
\ninterpretation thereof, relating to the deducting or withholding of Covered
\nTaxes.<\/p>\n
(c) In addition, Borrower agrees to pay any present or future stamp or
\ndocumentary taxes or any other excise or property taxes, charges or similar
\nlevies which arise from any payment made hereunder or under the Notes or from
\nthe execution, delivery, filing, recordation or registration of, or otherwise
\nwith respect to, this Agreement or the Notes (hereinafter referred to as “Other
\nTaxes”).<\/p>\n
(d) Any Lender claiming any additional amounts payable pursuant to this
\nSection 5.06 agrees to use (at the Obligors’ expense) reasonable efforts
\n(consistent with its internal policy and legal and regulatory restrictions) to
\nchange the jurisdiction of its Applicable Lending Office if the making of such
\nchange would avoid the need for, or in the opinion of such Lender materially
\nreduce the amount of, any such additional amounts that may thereafter accrue and
\nwould not, in the sole judgment of such Lender exercised in good faith, be
\notherwise disadvantageous to such Lender.<\/p>\n
Section 6. Guarantee.<\/p>\n
6.01. The Guarantee. Subject to Section 6.07, each Guarantor hereby jointly
\nand severally guarantees as a primary obligor and not as a surety to each
\nCreditor and its successors and assigns the prompt payment in full when due
\n(whether at stated maturity, by acceleration or otherwise) of the principal of
\nand interest (including any interest, fees, costs or charges that would accrue
\nbut for the provisions of the Bankruptcy Code after any bankruptcy or insolvency
\npetition under the Bankruptcy Code) on the Loans made by the Lenders to, and the
\nNotes held by each Lender of, Borrower, and all other Obligations from time to
\ntime owing to the Creditors by Borrower under any Credit Document or Swap
\nContract relating to the Loans, in each case strictly in accordance with the
\nterms<\/p>\n
-62-<\/p>\n
thereof (such obligations being herein collectively called the “Guaranteed
\nObligations”). The Guarantors hereby jointly and severally agree that if
\nBorrower shall fail to pay in full when due (whether at stated maturity, by
\nacceleration or otherwise) any of the Guaranteed Obligations, the Guarantors
\nwill promptly pay the same, without any demand or notice whatsoever, and that in
\nthe case of any extension of time of payment or renewal of any of the Guaranteed
\nObligations, the same will be promptly paid in full when due (whether at
\nextended maturity, by acceleration or otherwise) in accordance with the terms of
\nsuch extension or renewal.<\/p>\n
6.02. Obligations Unconditional. The obligations of the Guarantors under
\nSection 6.01 shall constitute guaranties of payment and are irrevocable and
\nunconditional, joint and several and, to the fullest extent permitted by
\napplicable law, absolute, irrespective of the value, genuineness, validity,
\nregularity or enforceability of the Guaranteed Obligations of Borrower under
\nthis Agreement, the Notes or any other agreement or instrument referred to
\nherein or therein, or any substitution, release or exchange of any other
\nguarantee of or security for any of the Guaranteed Obligations, and, to the
\nfullest extent permitted by applicable law, irrespective of any other
\ncircumstance whatsoever that might otherwise constitute a legal or equitable
\ndischarge or defense of a surety or guarantor (except for payment in full).
\nWithout limiting the generality of the foregoing, it is agreed that the
\noccurrence of any one or more of the following shall not alter or impair the
\nliability of the Guarantors hereunder, which shall remain absolute, irrevocable
\nand unconditional under any and all circumstances as, and to the extent,
\ndescribed above:<\/p>\n
(i) at any time or from time to time, without notice to the
\n Guarantors, the time for any performance of or compliance with any of the
\n Guaranteed Obligations shall be extended, or such performance or compliance
\n shall be waived;<\/p>\n
(ii) any of the acts mentioned in any of the provisions of this
\n Agreement or the Notes or any other agreement or instrument referred to
\n herein or therein shall be done or omitted (other than payment in full of
\n the Obligations);<\/p>\n
(iii) the maturity of any of the Guaranteed Obligations shall be
\n accelerated, or any of the Guaranteed Obligations shall be amended in any
\n respect, or any right under the Credit Documents or any other agreement or
\n instrument referred to herein or therein shall be amended or waived in any
\n respect or any other guarantee of any of the Guaranteed Obligations or any
\n security therefor shall be released or exchanged in whole or in part or
\n otherwise dealt with;<\/p>\n
(iv) any lien or security interest granted to, or in favor of, L\/C
\n Lender or any Lender or Agent as security for any of the Guaranteed
\n Obligations shall fail to be perfected; or<\/p>\n
(v) the release of any other Guarantor.<\/p>\n
The Guarantors hereby expressly waive diligence, presentment, demand of
\npayment, protest and all notices whatsoever, and any requirement that any
\nCreditor exhaust any right, power or remedy or proceed against Borrower under
\nthis Agreement or the Notes or any other agreement or instrument referred to
\nherein or therein, or against any other Person under any other guarantee of, or
\nsecurity for, any of the Guaranteed Obligations. The Guarantors waive any and
\nall notice of the crea-<\/p>\n
-63-<\/p>\n
tion, renewal, extension, waiver, termination or accrual of any of the
\nGuaranteed Obligations and notice of or proof of reliance by any Creditor upon
\nthis guarantee or acceptance of this guarantee, and the Guaranteed Obligations,
\nand any of them, shall conclusively be deemed to have been created, contracted
\nor incurred in reliance upon this guarantee, and all dealings between Borrower
\nand the Creditors shall likewise be conclusively presumed to have been had or
\nconsummated in reliance upon this guarantee. This guarantee shall be construed
\nwithout regard to any right of offset with respect to the Guaranteed Obligations
\nat any time or from time to time held by the Creditors. This guarantee shall
\nremain in full force and effect and be binding in accordance with and to the
\nextent of its terms upon the Guarantors and the successors and assigns thereof,
\nand shall inure to the benefit of the Creditors, and their respective successors
\nand assigns, notwithstanding that from time to time during the term of this
\nAgreement there may be no Guaranteed Obligations outstanding.<\/p>\n
6.03. Reinstatement. The obligations of the Guarantors under this Section 6
\nshall be automatically reinstated if and to the extent that for any reason any
\npayment by or on behalf of Borrower or other Obligor in respect of the
\nGuaranteed Obligations is rescinded or must be otherwise restored by any holder
\nof any of the Guaranteed Obligations, whether as a result of any proceedings in
\nbankruptcy or reorganization or otherwise. The Guarantors jointly and severally
\nagree that they will indemnify each Creditor on demand for all reasonable costs
\nand expenses (including reasonable fees of counsel) incurred by such Creditor in
\nconnection with such rescission or restoration, including any such costs and
\nexpenses incurred in defending against any claim alleging that such payment
\nconstituted a preference, fraudulent transfer or similar payment under any
\nbankruptcy, insolvency or similar law, other than any costs or expenses
\nresulting from the gross negligence or bad faith of such Creditor.<\/p>\n
6.04. Subrogation; Subordination. Each Guarantor hereby agrees that until
\nthe indefeasible payment and satisfaction in full in cash of all Guaranteed
\nObligations and the expiration and termination of the Commitments of the Lenders
\nunder this Agreement it shall not exercise any right or remedy arising by reason
\nof any performance by it of its guarantee in this Section, whether by
\nsubrogation or otherwise, against Borrower or any other Guarantor of any of the
\nGuaranteed Obligations or any security for any of the Guaranteed Obligations.
\nThe payment of any amounts due with respect to any indebtedness of Borrower or
\nany other Guarantor now or hereafter owing to any Guarantor or Borrower by
\nreason of any payment by such Guarantor under the Guarantee in this Section 6 is
\nhereby subordinated to the prior indefeasible payment in full in cash of the
\nGuaranteed Obligations. Each Guarantor agrees that it will not demand, sue for
\nor otherwise attempt to collect any such indebtedness of Borrower to such
\nGuarantor until the Obligations shall have been indefeasibly paid in full in
\ncash. If, notwithstanding the foregoing sentence, any Guarantor shall prior to
\nthe indefeasible payment in full in cash of the Guaranteed Obligations collect,
\nenforce or receive any amounts in respect of any such right or remedy, such
\namounts shall be collected, enforced and received by such Guarantor as trustee
\nfor Creditors and be paid over to Administrative Agent on account of the
\nGuaranteed Obligations without affecting in any manner the liability of such
\nGuarantor under the other provisions of the guaranty contained herein.<\/p>\n
6.05. Remedies. The Guarantors jointly and severally agree that, as between
\nthe Guarantors and the Lenders, the obligations of Borrower under this Agreement
\nand the Notes may be declared to be forthwith due and payable as provided in
\nSection 10 (and shall be deemed to have become automatically due and payable in
\nthe circumstances provided in said Section 10) for purposes of Section 6.01,
\nnotwithstanding any stay, injunction or other prohibition preventing such
\ndeclaration (or<\/p>\n
-64-<\/p>\n
such obligations from becoming automatically due and payable) as against
\nBorrower and that, in the event of such declaration (or such obligations being
\ndeemed to have become automatically due and payable), such obligations (whether
\nor not due and payable by Borrower) shall forthwith become due and payable by
\nthe Guarantors for purposes of Section 6.01.<\/p>\n
6.06. Continuing Guarantee. The guarantee in this Section 6 is a continuing
\nguarantee of payment, and shall apply to all Guaranteed Obligations whenever
\narising.<\/p>\n
6.07. General Limitation on Guarantee Obligations. In any action or
\nproceeding involving any state corporate law, or any state, Federal or foreign
\nbankruptcy, insolvency, reorganization or other law affecting the rights of
\ncreditors generally, if the obligations of any Guarantor under Section 6.01
\nwould otherwise be held or determined to be void, voidable, invalid or
\nunenforceable, or subordinated to the claims of any other creditors, on account
\nof the amount of its liability under Section 6.01, then, notwithstanding any
\nother provision to the contrary, the amount of such liability shall, without any
\nfurther action by such Guarantor, any Creditor or any other Person, be
\nautomatically limited and reduced to the highest amount that is valid and
\nenforceable and not subordinated to the claims of other creditors as determined
\nin such action or proceeding.<\/p>\n
Section 7. Conditions Precedent.<\/p>\n
7.01. Conditions to Effectiveness. The effectiveness of this Agreement is
\nsubject to the satisfaction of the following conditions precedent (the date of
\nthe satisfaction (or waiver) of each of the following conditions, the “Effective
\nDate”):<\/p>\n
(i) Documentation and Evidence of Certain Matters. The Lead Arranger
\n and the Administrative Agent shall have received the following documents
\n (with sufficient conformed copies for each Lender), each of which shall be
\n reasonably satisfactory to the Lead Arranger and the Administrative Agent
\n in form and substance:<\/p>\n
(1) Corporate Documents. Certified true and complete copies of
\n the charter and by-laws and all amendments thereto (or equivalent
\n documents) of each Obligor and of all corporate authority for each
\n Obligor (including board of director resolutions and evidence of the
\n incumbency of officers) with respect to the execution, delivery and
\n performance of such of the Credit Documents to which such Obligor is
\n intended to be a party and each other document to be delivered by such
\n Obligor from time to time in connection herewith and the extensions of
\n credit hereunder and the consummation of the Transactions, certified
\n as of the Effective Date as complete and correct copies thereof by the
\n Secretary or an Assistant Secretary of such Obligor, and<\/p>\n
(2) The Credit Agreement. This Agreement, (i) executed and
\n delivered by a duly authorized officer of each Obligor, and (ii)
\n executed and delivered by a duly authorized officer of each Lender and
\n Agent (or, in each case, evidence reasonably satisfactory to the Lead
\n Arranger and the Administrative Agent of the execution of this
\n Agreement by such Obligor, Lender or Agent).<\/p>\n
-65-<\/p>\n
7.02. Conditions to Initial Extension of Credit. The obligation of the
\nLenders to make any initial extension of credit hereunder (whether by making a
\nLoan or issuing a Letter of Credit) is subject to the satisfaction of the
\ncondition precedent that the Effective Date shall have occurred (or shall occur
\nsimultaneously therewith) and to the satisfaction of the following additional
\nconditions precedent (the date of the satisfaction (or waiver) of all of the
\nconditions to the initial extension of credit in this Section 7.02, the “Closing
\nDate”):<\/p>\n
(i) Documentation and Evidence of Certain Matters. The Lead Arranger
\n and the Administrative Agent shall have received the following documents
\n (with sufficient conformed copies for each Lender), each duly executed
\n where appropriate (or, in each case, the Lead Arranger shall have received
\n evidence reasonably satisfactory to it of the execution thereof by the
\n parties thereto) and each of which (other than any such document the form
\n of which is specified in an Exhibit hereto) shall be reasonably
\n satisfactory to the Lead Arranger and the Administrative Agent in form and
\n substance:<\/p>\n
(1) Officers’ Certificate. An Officers’ Certificate of Borrower,
\n dated the Closing Date, (x) to the effect set forth in clauses (a) and
\n (b) of Section 7.03(i) and (y) to the effect that all conditions
\n precedent to the making of such initial extension of credit have been
\n satisfied or waived (other than any condition requiring the
\n satisfaction or reasonable satisfaction of any Agent, L\/C Lender or
\n Lender).<\/p>\n
(2) Opinions of Counsel. An opinion of Davis Polk & Wardwell,
\n counsel to the Obligors, substantially in the form of Exhibit E-1, and
\n an opinion of each local counsel listed on Schedule 7.02(i)(2),
\n substantially in the form of Exhibit E-2.<\/p>\n
(3) Notes. The Notes, duly completed and executed for each Lender
\n that has requested Notes at least one Business Day prior to the
\n Closing Date.<\/p>\n
(4) Security Documents. The Security Agreement, such other pledge
\n agreements required under local law in the judgment of counsel to
\n Administrative Agent and requested reasonably in advance of the
\n intended Closing Date (each of which shall be in full force and
\n effect), the Perfection Certificate, substantially in the form of
\n Exhibit L, duly authorized, executed and delivered by the Obligors and
\n Administrative Agent, the certificates identified under the name of
\n such Obligors in Schedule 1.1(c) and Schedule 1.1(d) to the Security
\n Agreement, accompanied by undated stock powers, instruments of
\n assignment or issuer acknowledgments executed in blank if applicable
\n and the notes identified under the name of such Obligors in Schedule
\n 1.1(e) to the Security Agreement, accompanied by undated notations or
\n instruments of assignment executed in blank.<\/p>\n
(5) Solvency Certificate. A certificate in the form of Exhibit
\n C-2 from the chief financial officer of Borrower with respect to the
\n Solvency (on a consolidated basis) of Borrower immediately after the
\n consummation of the Transactions to occur on the Closing Date.<\/p>\n
-66-<\/p>\n
(ii) Borrowing Base Certificate. Administrative Agent shall have
\n received a Borrowing Base Certificate prepared (on a pro forma basis as if
\n the Transactions had been consummated on such date) as of the last Business
\n Day of the most recent month ended at least 30 days prior to the Closing
\n Date.<\/p>\n
(iii) No Other Debt or Preferred Stock. After giving effect to the
\n Transactions and the other transactions contemplated hereby, Borrower and
\n its Subsidiaries shall have outstanding no Indebtedness or preferred stock
\n (or direct or indirect guarantee or other credit support in respect
\n thereof) outstanding other than the Loans and Indebtedness and Contingent
\n Obligations permitted under Section 9.08.<\/p>\n
(iv) Consummation of Transactions. Each of the Transactions (other
\n than the extensions of credit hereunder and the Spin-Off) shall have been
\n (or shall be contemporaneously) consummated in all material respects in
\n accordance with the terms hereof and the terms of documentation therefor
\n (without the material waiver or material amendment of any material
\n condition unless consented to by the Lead Arranger, the Administrative
\n Agent and the Lenders) that are in form and substance reasonably
\n satisfactory to the Lead Arranger (with any material condition therein
\n requiring the satisfaction or consent of any Person other than the Lead
\n Arranger or the Lenders being deemed to require the reasonable satisfaction
\n or consent of the Lead Arranger and the Lenders).<\/p>\n
(v) No Material Adverse Change. There shall not have occurred or
\n become known any material adverse change in the business, results of
\n operations, financial condition or prospects of the Companies taken as a
\n whole (and after giving effect to the Transactions) since June 30, 2001.<\/p>\n
(vi) Approvals. All requisite material Governmental Authorities and,
\n except to the extent that the absence thereof could not reasonably be
\n expected to result in a Material Adverse Change, third parties have
\n approved or consented to the Transactions and the other transactions
\n contemplated hereby to the extent required (without the imposition of any
\n materially burdensome or materially adverse conditions or requirements in
\n the reasonable judgment of the Lead Arranger), all such approvals are in
\n full force and effect, all applicable waiting periods have expired and
\n there shall be no Proceeding, actual or threatened, that has or could have
\n a reasonable likelihood of restraining, preventing or imposing materially
\n burdensome conditions on any of the Transactions or the other transactions
\n contemplated hereby.<\/p>\n
(vii) Payment of Fees and Expenses. All accrued and unpaid fees and
\n expenses (including the fees and expenses of Cahill Gordon & Reindel and of
\n local counsel to the Lead Arranger) of the Lenders, Administrative Agent
\n and the Lead Arranger in connection with the Credit Documents, to the
\n extent invoiced at least two Business Days prior to the Closing Date, shall
\n have been paid.<\/p>\n
(viii) No Legal Bar. No Law shall be applicable that restrains,
\n prevents or imposes material adverse conditions upon any component of the
\n Transactions or the financing thereof, including the Credit Facilities.<\/p>\n
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(ix) Filings and Lien Searches. The Obligors shall have authorized,
\n executed and delivered each of the following:<\/p>\n
(1) UCC Financing Statements (Form UCC-1) in appropriate form for
\n filing under the UCC and any other applicable law, rule or regulation
\n in each jurisdiction as may be necessary or appropriate to perfect the
\n Liens created, or purported to be created, by the Security Documents;<\/p>\n
(2) to the extent requested by the Lead Arranger, certified
\n copies of Requests for Information (Form UCC-11), tax lien and
\n judgment lien searches or equivalent reports or lien search reports,
\n each of a recent date listing all effective financing statements, lien
\n notices or comparable documents that name any Obligor as debtor and
\n that are filed in those states and other jurisdictions in which any of
\n the Collateral of such Obligor is located, the states and other
\n jurisdictions in which each such Person’s principal place of business
\n is located and the state in which such Person is organized, none of
\n which will, after giving effect to the consummation of the
\n Transactions, encumber the Collateral covered or intended to be
\n covered by the Security Agreement other than those encumbrances which
\n constitute Prior Liens and other Liens expressly permitted by the
\n terms of the applicable Security Document; and<\/p>\n
(3) evidence of arrangements for (A) the completion of all
\n recordings and filings of, or with respect to, the Security Documents,
\n and (B) the taking of all actions as may be necessary or, in the
\n opinion of the Lead Arranger, desirable, to perfect the Liens created,
\n or purported to be created, by the Security Documents.<\/p>\n
(x) Transition Services Documents. The Lead Arranger shall be
\n satisfied with the agreements and other arrangements (in respect of
\n transition services or otherwise) between Pitney Bowes, Inc. and\/or its
\n Subsidiaries (other than Borrower and\/or its Subsidiaries) and Borrower
\n and\/or its Subsidiaries.<\/p>\n
(xi) After giving effect to such initial extension of credit, Borrower
\n shall thereupon have the ability to borrow not less than $20,000,000 in the
\n form of a Revolving Loan pursuant to this Agreement.<\/p>\n
7.03. Conditions to Initial and Subsequent Extensions of Credit. The
\nobligation of the Lenders to make any Loan or otherwise extend any credit to
\nBorrower upon the occasion of each borrowing or other extension of credit
\n(whether by making a Loan or issuing a Letter of Credit) hereunder (including
\nthe initial borrowing) is subject to the further conditions precedent that:<\/p>\n
(i) No Default or Event of Default; Representations and Warranties
\n True. Both immediately prior to the making of such Loan or other extension
\n of credit and also after giving pro forma effect thereto and to the
\n intended use thereof:<\/p>\n
(a) no Default or Event of Default shall have occurred and be
\n continuing;<\/p>\n
-68-<\/p>\n
(b) the representations and warranties made by the Obligors in
\n Section 8, and by each Obligor in each of the other Credit Documents
\n to which it is a party, shall (x) in the case of any such
\n representation or warranty that expressly relates to a prior specific
\n date or dates, be accurate in all material respects on and as of such
\n date or dates and (y) in the case of any other such representation or
\n warranty, continue to be accurate in all material respects on and as
\n of the date of the making of such Loan or other extension of credit
\n with the same force and effect as if made on and as of such date
\n (except that any such representation or warranty qualified as to
\n materiality shall (A) in the case of any representation or warranty
\n referred to in clause (x) above, be accurate on and as of the date or
\n dates referred to therein and (B) in the case of any other such
\n representation or warranty, continue to be accurate on and as of the
\n date of the making of such Loan or other extension of credit with the
\n same force and effect as if made on and as of such date); and<\/p>\n
(c) in the case of any extension of credit consisting of the
\n making of Revolving Loans or Swing Loans or the issuance of any Letter
\n of Credit, the sum of the aggregate amount of the outstanding Swing
\n Loans, plus Revolving Loans, plus L\/C Liabilities shall not exceed the
\n Borrowing Base then in effect.<\/p>\n
(ii) Notice of Borrowing. Other than with respect to a Swing Loan,
\n Administrative Agent shall have received a Notice of Borrowing duly
\n completed and complying with Section 4.05.<\/p>\n
Each Notice of Borrowing or request for the issuance of a Letter of Credit
\ndelivered by Borrower hereunder shall constitute a certification by Borrower to
\nthe effect set forth in clauses (i) and (ii) above as of the date of such
\nborrowing or issuance. Each notice submitted by Borrower hereunder for an
\nextension of credit hereunder shall constitute a representation and warranty by
\nBorrower, as of the date of such notice and as of the relevant borrowing date or
\ndate of issuance of a Letter of Credit, as applicable, that the applicable
\nconditions in Sections 7.02 and 7.03 (other than any condition requiring the
\nsatisfaction or reasonable satisfaction of any Agent, Lender or L\/C Lender) have
\nbeen satisfied or waived in accordance with the terms hereof.<\/p>\n
7.04. Determinations Under Section 7. For purposes of determining
\ncompliance with the conditions specified in Sections 7.01 and 7.02, each Lender
\nand each Agent shall be deemed to have consented to, approved or accepted or to
\nbe satisfied with each document or other matter required thereunder to be
\nconsented to or approved by or acceptable or satisfactory to the Lenders, the
\nRequired Lenders, the Agent or such Agent unless an officer of Administrative
\nAgent responsible for the transactions contemplated by this Agreement shall have
\nreceived notice from such Lender or Agent prior to the date that Borrower, by
\nnotice to the Administrative Agent, designates as the proposed date of the
\ninitial extension of credit, specifying its objection thereto.<\/p>\n
Section 8. Representations and Warranties. Each Obligor represents and
\nwarrants to the Creditors that at and as of the Effective Date and at and as of
\neach Funding Date (in each case immediately before and immediately after giving
\neffect to the transactions to occur on such date (including (i) the application
\nof the proceeds of any extension of credit to be made on such Funding Dates and
\n(ii) with respect to the Closing Date, the Transactions)):<\/p>\n
-69-<\/p>\n
8.01. Corporate Existence; Compliance with Law. Each Company: (a) is a
\ncorporation, partnership, limited liability company or other entity duly
\norganized, validly existing and, to the extent applicable, in good standing
\nunder the laws of the jurisdiction of its organization; (b) has all requisite
\ncorporate or other power and authority, and has all governmental licenses,
\nauthorizations, consents and approvals necessary to own its Property and carry
\non its business as now being conducted; (c) is qualified to do business and is,
\nto the extent applicable, in good standing in all jurisdictions in which the
\nnature of the business conducted by it makes such qualification necessary; and
\n(d) is in compliance with all Requirements of Law, except, in the case of
\nclauses (a), (b), (c) and (d) where the failure thereof individually or in the
\naggregate would not have a Material Adverse Effect.<\/p>\n
8.02. Financial Condition; Etc. (a) Borrower has delivered to the Lenders
\n(i) the audited combined balance sheets of Consolidated Companies as of December
\n31, 1999 and 2000, and the related statements of income, changes in invested
\nequity and cash flows for the fiscal years ended on December 31, 1998, 1999 and
\n2000, together with a report thereon by PricewaterhouseCoopers LLP, certified
\npublic accountants, and (ii) the unaudited combined balance sheet of
\nConsolidated Companies as of June 30, 2001 and the related statements of income,
\nchanges in invested equity and cash flows for the six months ended on such date.
\nAll of said financial statements, including in each case the related schedules
\nand notes, have been prepared in accordance with GAAP consistently applied and
\npresent fairly in all material respects the combined financial position of
\nConsolidated Companies as of the respective dates of said balance sheets and the
\ncombined results of their operations for the respective periods covered thereby,
\nsubject (in the case of interim statements) to normal period-end audit
\nadjustments and the omission of certain footnotes.<\/p>\n
(b) Except as set forth in Schedule 8.02(b), in the financial statements or
\nother information referred to in Section 8.02(a), as of the Effective Date,
\nthere are no material liabilities of any Company of any kind required to be set
\nforth on a balance sheet or in the notes thereto prepared in accordance with
\nGAAP, whether accrued, contingent, absolute, determined, determinable or
\notherwise, and there is no existing condition, situation or set of circumstances
\nwhich is reasonably likely to result in such a liability.<\/p>\n
(c) Since June 30, 2001 there has been no Material Adverse Change.<\/p>\n
(d) The pro forma balance sheet of Consolidated Companies (the “Pro Forma
\nBalance Sheet”), certified by the chief financial officer of Borrower, copies of
\nwhich will be furnished to each Lender not later than the second Business Day
\nprior to the Closing Date, is the balance sheet of Consolidated Companies as of
\nJune 30, 2001 (the “Pro Forma Date”), adjusted to give effect (as if such events
\nhad occurred on such date) to the Transactions to occur on the Closing Date and
\nthe application of the proceeds of all Indebtedness to be incurred on such date.
\nThe Pro Forma Balance Sheet, together with the notes thereto, accurately
\nreflects in all material respects all adjustments necessary to give effect to
\nthe Transactions, was prepared based on good faith assumptions, and presents
\nfairly in all material respects on a pro forma basis the combined financial
\nposition of Consolidated Companies as at the Pro Forma Date, adjusted as
\ndescribed above.<\/p>\n
8.03. Litigation. Except as set forth in Schedule 8.03, there is no
\nProceeding (other than any qui tam Proceeding, to which this Section is limited
\nto the best of Borrower’s knowledge) pending against, or to the knowledge of
\nBorrower, threatened in writing against or affecting, any<\/p>\n
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Company or any of its respective Properties before any Governmental Authority or
\nprivate arbitrator that may have a reasonable likelihood of being adversely
\ndetermined and that, if determined or resolved adversely to such Company, would
\nhave a Material Adverse Effect.<\/p>\n
8.04. No Breach. None of the execution, delivery and performance by any
\nObligor of any Credit Document or Transaction Document to which it is a party
\nnor the consummation of the transactions herein and therein contemplated
\n(including the Transactions) do or will (i) conflict with or result in a breach
\nof, or require any consent (which has not been obtained and is in full force and
\neffect) under, any Organic Document of any Company or any applicable Requirement
\nof Law or any order, writ, injunction or decree of any Governmental Authority
\nbinding on any Company, or tortuously interfere with, result in a breach of, or
\nrequire termination of, any term or provision of any Contractual Obligation of
\nany Company, (ii) constitute (with due notice or lapse of time or both) a
\ndefault under any such Contractual Obligation or (iii) result in the creation or
\nimposition of any Lien (except for the Liens created pursuant to the Security
\nDocuments and Permitted Liens) upon any Property of any Company pursuant to the
\nterms of any such Contractual Obligation, except with respect to each of the
\nforegoing which would not have a Material Adverse Effect and which would not
\nsubject any Creditor to any material risk of damages or liability to third
\nparties.<\/p>\n
8.05. Action. Each Company has all necessary corporate, partnership, etc.
\npower, authority and legal right to execute, deliver and perform its obligations
\nunder each Credit Document and Transaction Document to which it is a party and
\nto consummate the transactions herein and therein contemplated; the execution,
\ndelivery and performance by each Company of each Credit Document and Transaction
\nDocument to which it is a party and the consummation of the transactions herein
\nand therein contemplated have been duly authorized by all necessary corporate,
\npartnership, etc. action on its part; and this Agreement has been duly and
\nvalidly executed and delivered by each Obligor and constitutes, and each of the
\nNotes and the other Credit Documents to which it is a party when executed and
\ndelivered by such Obligor (in the case of the Notes, for value) will constitute,
\nits valid and binding agreement (or, in the case of the Notes, obligation),
\nenforceable against such Obligor in accordance with its terms, subject to (a)
\napplicable bankruptcy, insolvency and similar laws of general applicability from
\ntime to time in effect affecting creditors’ rights and remedies generally and
\n(b) general principles of equity (regardless of whether considered in a
\nproceeding in equity or at law).<\/p>\n
8.06. Approvals. No authorizations, approvals or consents of, and no
\nfilings or registrations with, any Governmental Authority or any securities
\nexchange are necessary for the execution, delivery or performance by any Company
\nof the Credit Documents and the Transaction Documents to which it is a party or
\nfor the legality, validity or enforceability hereof or thereof or for the
\nconsummation of the transactions herein and therein contemplated, except for (i)
\nfilings and recordings in respect of the Liens created pursuant to the Security
\nDocuments, (ii) filings required to be made with the Commission in compliance
\nwith disclosure requirements under applicable securities laws (including the
\nSecurities Act and the Exchange Act) and (iii) consents, authorizations and
\nfilings that have been obtained or made and are in full force and effect or the
\nfailure to obtain or make which would not have a Material Adverse Effect.<\/p>\n
8.07. ERISA and Foreign Employee Benefit Matters. No ERISA Event has
\noccurred or is reasonably expected to occur that, when taken together with all
\nother such ERISA Events for which liability is reasonably expected to occur,
\ncould reasonably be expected to result in a Material<\/p>\n
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Adverse Effect. From and after the consummation of the Spin-Off, no Company
\nshall maintain or contribute to or be required to maintain or contribute to any
\nPension Plan. Each ERISA Entity is in compliance in all material respects with
\nthe presently applicable provisions of ERISA and the Code with respect to each
\nEmployee Benefit Plan.<\/p>\n
8.08. Taxes. Except as would not have a Material Adverse Effect, (i) all
\nmaterial tax returns, statements, reports and forms (including estimated Tax or
\ninformation returns) (collectively, the “Tax Returns”) required to be filed with
\nany taxing authority by, or with respect to, each Company have been filed in
\naccordance with all applicable laws; (ii) each Company has timely paid or made
\nprovision for payment of all material Taxes shown as due and payable on Tax
\nReturns that have been so filed, and, as of the time of filing, each Tax Return
\ncorrectly reflected the facts regarding income, business, assets, operations,
\nactivities and the status of each Company (other than Taxes which are being
\ncontested in good faith and for which adequate reserves are reflected on
\nfinancial statements subsequently delivered hereunder) and (iii) each Company
\nhas made provision for all Taxes payable by such Company for which no Tax Return
\nhas yet been filed.<\/p>\n
8.09. Investment Company Act; Public Utility Holding Company Act; Other
\nRestrictions. No Company is required to register as an investment company under
\nthe United States Investment Company Act of 1940, as amended. No Company is a
\n“holding company”, or an “affiliate” of a “holding company” or a “subsidiary
\ncompany” of a “holding company”, within the meaning of the United States Public
\nUtility Holding Company Act of 1935, as amended. No Obligor is subject to
\nregulation under any law or regulation which limits its ability to incur
\nIndebtedness, other than Regulation X of the Board of Governors of the Federal
\nReserve System.<\/p>\n
8.10. Environmental Matters. Except as disclosed in Schedule 8.10 and
\nexcept as would not, individually or in the aggregate, result in a Material
\nAdverse Effect: (i) each Company is in compliance with, and is not subject to
\nliability under, any applicable Environmental Laws and there are no
\nEnvironmental Laws which could reasonably be expected to result in material
\nexpenditures by any Company, and no such Environmental Laws would interfere in
\nany material way with current or projected operations of any Company; (ii) no
\nCompany or, to the knowledge of the Obligors, any of its predecessors in
\ninterest, has disposed of, arranged for the disposal or treatment of, or
\notherwise released Hazardous Materials at any site at which any Person is
\nconducting any action under Environmental Law, which could reasonably be
\nexpected to result in material expenditures by any Company; (iii) no Real
\nProperty now owned, leased or operated by any Company nor to the knowledge of
\nthe Obligors, any property formerly owned, leased or operated by the Companies
\nor any of their respective predecessors in interest is (x) listed or proposed
\nfor listing on the National Priorities List under the United States
\nComprehensive Environmental Response, Compensation and Liability Act of 1980, as
\namended (“CERCLA”), or (y) listed on the Comprehensive Environmental Response,
\nCompensation and Liability Information System List promulgated pursuant to
\nCERCLA or (z) included on any similar lists maintained by any Governmental
\nAuthority; (iv) there are no agreements, judgments, decrees or orders by which
\nany Company is bound, which would reasonably be expected to prevent any
\nCompany’s compliance with any Environmental Law, or which would reasonably be
\nexpected to give rise to any liability of any Company under any Environmental
\nLaw; (v) no Lien has been asserted or recorded or, to the knowledge of the
\nObligors, threatened, under any Environmental Law with respect to Property of
\nany Company; and (vi) no Company is subject to any Proceeding alleging the
\nviolation of,<\/p>\n
-72-<\/p>\n
or liability under, any Environmental Law or has received any Environmental
\nClaim and, to the knowledge of the Obligors, no such Proceeding or Environmental
\nClaim is threatened.<\/p>\n
8.11. Use of Proceeds. No Company is engaged principally, or as one of its
\nimportant activities, in the business of extending credit for the purpose,
\nwhether immediate, incidental or ultimate, of buying or carrying Margin Stock.
\nFollowing application of the proceeds of each extension of credit hereunder, not
\nmore than 25 percent of the value of the assets (either of Borrower individually
\nor of Consolidated Companies) will be Margin Stock. Borrower will use the
\nproceeds of (i) all Term B Facility Loans to finance the Transactions and pay
\nrelated fees and expenses and (ii) Revolving Loans to finance the Transactions
\n(in an amount not to exceed on the Closing Date $75,000,000 unless consented to
\nby the Lead Arranger in its sole discretion) and for working capital and general
\ncorporate purposes.<\/p>\n
8.12. Subsidiaries, Etc. As of the Effective Date, Borrower has no
\nSubsidiaries or Equity Interests (whether direct or indirect) in partnerships,
\nMinority Interests or business trusts other than the entities set forth on
\nSchedule 8.12. Each Subsidiary listed on Schedule 8.12 (other than each Foreign
\nSubsidiary and each Excluded Subsidiary) will be a Guarantor as of the Closing
\nDate. Borrower owns, as of the Effective Date, the percentage of the issued and
\noutstanding Equity Interests or other evidences of the ownership of each of its
\nSubsidiaries and each issuer of Minority Interests listed on Schedule 8.12 as
\nset forth on such Schedule. The outstanding Equity Interests of such
\nSubsidiaries and such Minority Interests are owned by Borrower free and clear of
\nall Liens and Equity Rights of others of any kind whatsoever, except for Liens
\npursuant to the Security Documents and Liens thereon permitted by Section 9.07.
\nNo such Subsidiary has issued any securities convertible into its Equity
\nInterests (or other evidence of ownership) or any Equity Rights to acquire such
\nEquity Interests.<\/p>\n
8.13. Ownership of Property; Liens. Except to the extent that any failure
\nto do so would not in the aggregate have a Material Adverse Effect, each Company
\nhas good and marketable title to all of the assets and Property (tangible and
\nintangible) owned by it (except insofar as marketability may be limited by any
\nlaws or regulations of any Governmental Authority affecting such assets). All
\nsuch assets and Property are free and clear of all Liens except Liens permitted
\nunder Section 9.07. Except to the extent that any failure to do so would not in
\nthe aggregate have a Material Adverse Effect, each Company has a valid leasehold
\ninterest in all of the Real Property leased by it. All such leasehold interests
\nare free and clear of all Liens except for Liens permitted under Section 9.07.
\nSubstantially all of the assets and Property owned by, leased to or used by each
\nCompany in its respective businesses are in adequate operating condition and
\nrepair, ordinary wear and tear excepted, are free and clear of any known defects
\nexcept such defects as do not substantially interfere with the continued use
\nthereof in the conduct of normal operations, and are able to serve the function
\nfor which they are currently being used, except in each case where the failure
\nof such asset to meet such requirements would not result in a Material Adverse
\nEffect. Neither any Credit Document, nor any transaction contemplated under any
\nsuch document, will affect any right, title or interest of any Company in any of
\nsuch assets in a manner that would result in a Material Adverse Effect.<\/p>\n
8.14. Security Interest; Absence of Financing Statements; Etc. The Security
\nDocuments, once executed and delivered, will create, in favor of Administrative
\nAgent for the benefit of the Creditors, as security for the obligations
\npurported to be secured thereby, a valid and enforceable, and upon filing or
\nrecording with the appropriate Governmental Authorities and delivery of the
\napplicable<\/p>\n
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documents to Administrative Agent, to the extent contemplated by the applicable
\nSecurity Document, perfected security interest in and Lien upon all of the
\nCollateral (and the proceeds thereof), superior to and prior to the rights of
\nall third persons other than the holders of Permitted Liens.<\/p>\n
Except for Permitted Liens, there is no currently effective financing
\nstatement, security agreement, chattel mortgage, real estate mortgage or other
\ndocument filed or recorded with any filing records, registry, or other public
\noffice, that purports to cover, affect or give notice of any Lien on, or
\nsecurity interest in, any Property of any Company or rights thereunder.<\/p>\n
8.15. Licenses and Permits. The Companies hold all governmental permits,
\nlicenses, authorizations, consents and approvals necessary for the Companies to
\nown, lease, and operate their respective Properties and to operate their
\nrespective businesses as now being conducted (collectively, the “Permits”),
\nexcept for Permits the failure of which to obtain would not have a Material
\nAdverse Effect. None of the Permits has been modified in any way that has had a
\nMaterial Adverse Effect. All Permits are in full force and effect except where
\nthe failure to be in full force and effect would not have a Material Adverse
\nEffect.<\/p>\n
8.16. True and Complete Disclosure. The information, reports, financial
\nstatements, exhibits and schedules furnished in writing by or on behalf of the
\nObligors to the Creditors in connection with the negotiation, preparation or
\ndelivery of the Credit Documents or included or delivered pursuant thereto or
\npursuant to the Confidential Information Memorandum dated August 2001
\ndistributed in connection with the syndication of the Commitments and Loans,
\nincluding all filings made with the Commission by any Company, and the Credit
\nDocuments themselves, but in each case excluding all projections, whether prior
\nto or after the date of this Agreement, when taken as a whole, do not, as of the
\ndate such information was furnished, contain any untrue statement of material
\nfact or omit to state a material fact necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmaterially misleading. The projections and pro forma financial information
\nfurnished at any time by the Obligors to the Creditors pursuant to this
\nAgreement have been prepared in good faith based on assumptions believed by
\nBorrower to be reasonable at the time made, it being recognized by the Lenders
\nthat such financial information as it relates to future events is not to be
\nviewed as fact and that actual results during the period or periods covered by
\nsuch financial information may differ from the projected results set forth
\ntherein by a material amount and that no Obligor makes any representation as to
\nthe ability of any Company to achieve the results set forth in any such
\nprojections. Each Obligor understands that all such statements, representations
\nand warranties shall be deemed to have been relied upon by the Lenders as a
\nmaterial inducement to make each extension of credit hereunder.<\/p>\n
8.17. Solvency. As of the Closing Date, after giving effect to the
\nconsummation of the Transactions and the extensions of credit to occur on such
\ndate, the Companies (on a consolidated basis) are Solvent.<\/p>\n
8.18. Contracts. No Company is in default under any material contract or
\nagreement to which it is a party or by which it is bound, nor, to Borrower’s
\nknowledge, does any condition exist that, with notice or lapse of time or both,
\nwould constitute such default, excluding in any case such defaults that are not
\nreasonably likely to have a Material Adverse Effect.<\/p>\n
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8.19. Labor Matters. Except as set forth in Schedule 8.19, there is (i) no
\nunfair labor practice complaint pending against any Company or, to the best
\nknowledge of Borrower, threatened against any Company, before the National Labor
\nRelations Board or any other Governmental Authority, and no grievance or
\narbitration proceeding arising out of or under any collective bargaining
\nagreement is so pending against any Company or, to the best knowledge of
\nBorrower after due inquiry, threatened against any Company, (ii) no strike,
\nlabor dispute, slowdown or stoppage pending against any Company or, to the best
\nknowledge of Borrower, after due inquiry, threatened against any Company and
\n(iii) to the best knowledge of Borrower after due inquiry, no union
\nrepresentation question existing with respect to the employees of any Company
\nand, to the best knowledge of Borrower, no union organizing activities are
\ntaking place, except such as would not, with respect to any matter specified in
\nclause (i), (ii) or (iii) above, individually or in the aggregate, have a
\nMaterial Adverse Effect.<\/p>\n
8.20. Intellectual Property. To the best knowledge of Borrower, each
\nCompany owns or possesses adequate licenses or otherwise has the right to use
\nall of the patents, patent applications, trademarks, trademark applications,
\nservice marks, service mark applications, trade names, copyrights, trade
\nsecrets, know-how and processes (collectively, “Intellectual Property”) that are
\nnecessary for the operation of its business as presently conducted, except where
\nthe failure to so own or possess such Intellectual Property would not,
\nindividually or in the aggregate, have a Material Adverse Effect. Except as set
\nforth on Schedule 8.20, to the best knowledge of Borrower, no claim is pending
\nthat any Company infringes upon the asserted rights of any other Person under
\nany Intellectual Property, except for any such claim that would not,
\nindividually or in the aggregate, have a Material Adverse Effect. Except as set
\nforth on Schedule 8.20, to the best knowledge of Borrower, no claim is pending
\nthat any such Intellectual Property owned or licensed by any Company or which
\nany Company otherwise has the right to use is invalid or unenforceable, except
\nfor any such claim which would not, individually or in the aggregate, have a
\nMaterial Adverse Effect.<\/p>\n
8.21. Existing Indebtedness. Schedule 8.21(A) sets forth a true and
\ncomplete list of all Indebtedness of the Companies as of the Effective Date and
\nSchedule 8.21(B) sets forth a true and complete list of all Indebtedness of the
\nCompanies that is to remain outstanding after the Closing Date (excluding the
\nObligations hereunder), in each case showing the aggregate principal amount
\nthereof and the name of each respective borrower and any other entity that
\ndirectly or indirectly guaranteed such Indebtedness.<\/p>\n
8.22. Accuracy of Borrowing Base Components. Each component of the
\nBorrowing Base, as the same may be determined upon the initial extension of
\ncredit hereunder or upon the delivery of any certificate pursuant to Section
\n9.01(j), meets all criteria of eligibility required to be met to be deemed a
\ncomponent of the Borrowing Base at the time of such determination in accordance
\nwith the definition of such component of the Borrowing Base.<\/p>\n
Section 9. Covenants. Each Obligor, for itself and on behalf of its
\nSubsidiaries, covenants and agrees with the Creditors that, so long as any
\nCommitment, Loan or L\/C Liability is outstanding and until payment in full of
\nall amounts payable by Borrower hereunder (other than Obligations in respect of
\nindemnification and expense reimbursement and obligations under Section 5
\nhereof, in each case for which no claim has been made):<\/p>\n
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9.01. Financial Statements, Etc. Borrower shall deliver to Administrative
\nAgent and each of the Lenders:<\/p>\n
(a) Quarterly Financials. As soon as available and in any event within
\n 45 days after the end of each of the first three quarterly fiscal periods
\n of each fiscal year beginning with the fiscal quarter ending September 30,
\n 2001, consolidated (or, for periods prior to the Closing Date, combined)
\n statements of income for such period and consolidated (or, for periods
\n prior to the Closing Date, combined) statements of income and cash flows
\n for the period from the beginning of the respective fiscal year to the end
\n of such period, and the related consolidated balance sheet of Consolidated
\n Companies as at the end of such period, setting forth in each case in
\n comparative form the corresponding consolidated (or, for periods prior to
\n the Closing Date, combined) statements of income and cash flows for the
\n corresponding period in the preceding fiscal year to the extent such
\n financial statements are available, accompanied by a certificate of a
\n Responsible Officer of Borrower, which certificate shall state that said
\n consolidated financial statements fairly present in all material respects
\n the consolidated (or combined, as the case may be) financial condition,
\n results of operations and cash flows of Consolidated Companies in
\n accordance with GAAP, consistently applied, as at the end of, and for, such
\n period (subject to normal year-end audit adjustments and except for the
\n absence of footnotes) (it being understood that the foregoing requirement
\n may be satisfied by delivery of a copy of Borrower’s report on Form 10-Q
\n for the applicable fiscal quarter filed with the Commission);<\/p>\n
(b) Annual Financials. As soon as available and in any event within 90
\n days after the end of each fiscal year beginning with the fiscal year
\n ending December 31, 2001 consolidated (or, for periods prior to the Closing
\n Date, combined) statements of income, cash flows and changes in
\n stockholders’ equity of Consolidated Companies for such year and the
\n related consolidated balance sheet of Consolidated Companies as at the end
\n of such year, setting forth in each case in comparative form the
\n corresponding consolidated (or, for periods or dates prior to the Closing
\n Date, combined) information as of the end of and for the preceding fiscal
\n year to the extent such financial statements are available, accompanied by
\n an opinion, without a going concern or similar qualification or exception
\n as to scope, thereon of PricewaterhouseCoopers LLP or other independent
\n certified public accountants of recognized national standing which opinion
\n shall state that said consolidated (or, for periods or dates prior to the
\n Closing Date, combined) financial statements fairly present in all material
\n respects the consolidated (or, for periods or dates prior to the Closing
\n Date, combined) financial condition, results of operations and cash flows
\n of Consolidated Companies as at the end of, and for, such fiscal year in
\n conformity with GAAP, consistently applied (it being understood that the
\n foregoing requirement may be satisfied by delivery of a copy of Borrower’s
\n report on Form 10-K for the applicable fiscal year filed with the
\n Commission);<\/p>\n
(c) Auditor’s Certificate; Compliance Certificate. (i) Concurrently
\n with the delivery of the financial statements referred to in Section
\n 9.01(b), a certificate of the independent certified public accountants
\n reporting on such financial statements stating that in making the
\n examination necessary therefor no knowledge was obtained of any Event of
\n Default relating to the Financial Maintenance Covenants or the other
\n covenants contained in Section 9.11, except as specified in such
\n certificate; and<\/p>\n
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(ii) At the time it furnishes each set of financial statements
\n pursuant to paragraph (A) or (B) above, a certificate of a Responsible
\n Officer of Borrower (I) to the effect that no Default has occurred and is
\n continuing (or, if any Default has occurred and is continuing, describing
\n the same in reasonable detail and describing the action that the Companies
\n have taken and propose to take with respect thereto) and (II) setting forth
\n in reasonable detail the computations necessary to determine whether each
\n Company is in compliance with Sections 9.11(a) and (b) as of the end of the
\n respective quarterly fiscal period or fiscal year;<\/p>\n
(d) Other Financial Information. Promptly upon delivery thereof to the
\n holders of any debt securities or the stockholders of the Borrower
\n generally, copies of all financial statements and reports and proxy
\n statements so delivered, and at the time the same are filed, copies of all
\n financial statements and reports which Borrower may make to or file with
\n the Commission or any successor or analogous Governmental Authority;<\/p>\n
(e) Interest Rate Certificates. From and after the Trigger Date,
\n together with the financial statements delivered pursuant to clause (a) or
\n (b) of this Section 9.01, an Interest Rate Certificate;<\/p>\n
(f) Notice of Default. Except with respect to any Default which would
\n not cause a Material Adverse Effect, promptly after any executive or
\n financial officer of Borrower knows that any Default has occurred, a notice
\n of such Default describing the same in reasonable detail and a description
\n of the action that the Companies have taken and propose to take with
\n respect thereto; <\/p>\n
(g) Environmental Matters. (i) Written notice of any Environmental
\n Claim materially affecting any Company or the operations of any Company and
\n (ii) any notice from any Person of (w) the occurrence of any Release of any
\n Hazardous Material that is reportable under any Environmental Law, (x) the
\n commencement of any clean-up pursuant to or in accordance with any
\n Environmental Law of any Hazardous Material or (y) any matters relating to
\n Hazardous Materials or Environmental Laws that, in each case set forth in
\n (i) or (ii) hereof, individually or in the aggregate, is reasonably likely
\n to have a Material Adverse Effect;<\/p>\n
(h) Auditors’ Reports. Promptly upon receipt thereof, copies of all
\n annual, interim or special reports issued to any Company by independent
\n certified public accountants in connection with each annual, interim or
\n special audit of such Company’s books made by such accountants;<\/p>\n
(i) Borrowing Base Audits. (1) Once during each six-month period prior
\n to the first anniversary of the Closing Date, and once per year thereafter
\n and (2) at any time at the request of Administrative Agent if an Event of
\n Default has occurred and is continuing, a report, the scope and cost of
\n which shall be reasonably acceptable to the Lenders and Borrower (the
\n reasonable cost and expense of which shall be for the sole account of
\n Borrower), of an independent collateral auditor (which may be, or be
\n affiliated with, one of the Lenders) with respect to the Accounts,
\n Inventory and Rental Assets included in the Borrowing Base as at the end of
\n a monthly accounting period;<\/p>\n
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(j) Borrowing Base Certificate. As soon as available and in any event
\n within 30 days after the end of each monthly accounting period (ending on
\n the last day of each calendar month) beginning with the monthly accounting
\n period ending September 30, 2001, a Borrowing Base Certificate as of the
\n last day of such accounting period (if Borrower fails to deliver any such
\n Borrowing Base Certificate within 30 days after the end of any such month,
\n then the Borrowing Base shall be deemed to be $0 (provided, however, that
\n no prepayment shall be required pursuant to Section 2.10(c) solely by
\n reason of such deemed reduction) until such time as Borrower shall deliver
\n such required Borrowing Base Certificate); Borrower shall notify
\n Administrative Agent promptly upon becoming aware of any event or condition
\n that could reasonably be expected to have a material adverse effect on the
\n Borrowing Base;<\/p>\n
(k) Annual Budgets. As soon as practicable and in any event within 90
\n days after the beginning of each fiscal year of Borrower beginning December
\n 31, 2001 a consolidated plan and financial forecast for such fiscal year,
\n including a forecasted consolidated balance sheet and forecasted
\n consolidated statements of income and cash flows of the Companies for such
\n fiscal year and for each quarter of such fiscal year, together with an
\n Officers’ Certificate demonstrating pro forma compliance for such fiscal
\n year with Section 9.11 and an explanation of the assumptions on which such
\n forecasts are based and stating that such plan and projections have been
\n prepared using assumptions believed in good faith by management of Borrower
\n to be reasonable at the time made;<\/p>\n
(l) [Reserved]<\/p>\n
(m) Notice of Material Adverse Effect. Written notice of the
\n occurrence of any Material Adverse Effect or any event or condition which
\n is reasonably likely to result in any Material Adverse Effect;<\/p>\n
(n) ERISA Information. Promptly upon the occurrence of any ERISA Event
\n that, alone or together with any other ERISA Events that have occurred,
\n could result in liability to the Companies in an aggregate amount exceeding
\n $7,500,000, a written notice specifying the nature thereof, what action the
\n Companies or other ERISA Entities have taken, are taking or propose to take
\n with respect thereto, and, when known, any action taken or threatened by
\n the Internal Revenue Service, Department of Labor, PBGC or Multiemployer
\n Plan sponsor with respect thereto;<\/p>\n
(o) ERISA Filings, Etc. Upon request by Administrative Agent, copies
\n of: (i) each Schedule B (Actuarial Information) to the annual report (Form
\n 5500 Series) filed by any Company with the Internal Revenue Service with
\n respect to each Pension Plan; (ii) the most recent actuarial valuation
\n report for each Pension Plan; (iii) all notices received by any Company
\n from a Multiemployer Plan sponsor or any governmental agency concerning an
\n ERISA Event; and (iv) such other documents or governmental reports or
\n filings relating to any Employee Benefit Plan as Administrative Agent shall
\n reasonably request; and<\/p>\n
(p) Miscellaneous. Promptly, such financial and other information with
\n respect to any Company as Administrative Agent on behalf of any Creditor
\n may from time to time reasonably request.<\/p>\n
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9.02. Litigation, Etc. Borrower shall promptly give to Administrative Agent
\nand each Lender notice of all Proceedings, and (except to the extent that any
\nsuch notice would, in the reasonable opinion of Borrower, waive attorney client
\nprivilege) any material development therein, affecting any Company, except
\nProceedings which would not have a Material Adverse Effect.<\/p>\n
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection Rights;
\nPerformance of Obligations; Etc. Each Company shall (i) preserve and maintain
\nits legal existence and all of its material rights, privileges and franchises;
\nprovided, however, that nothing in this Section 9.03 shall prohibit any
\ntransaction expressly permitted under Section 9.06; (ii) except as would not
\nhave a Material Adverse Effect, comply with all Requirements of Law; (iii)
\nexcept to the extent that any such failures, in the aggregate, would not result
\nin a Material Adverse Effect, timely file true, accurate and complete tax
\nreturns required by all Governmental Authorities and pay and discharge all Taxes
\nimposed upon it or any of its Properties prior to the date on which any
\npenalties attach thereto (except for any such Tax the payment of which is being
\ncontested in good faith and by proper proceedings diligently instituted and
\nconducted and against which adequate reserves or other appropriate provisions
\nare being maintained in accordance with GAAP; provided, however, that any such
\ntax imposed upon Collateral shall be contested in a manner that satisfies the
\nContested Collateral Lien Conditions); (iv) maintain all of its Properties used
\nor useful in its business in good working order and condition, ordinary wear and
\ntear excepted, except to the extent that the failure to do so would not have a
\nMaterial Adverse Effect; (v) permit representatives of any Creditor during
\nnormal business hours and upon reasonable prior notice, to examine, copy and
\nmake extracts from its books and records, to inspect its Properties, and to
\ndiscuss its business and affairs with its officers and employees, all to the
\nextent reasonably requested by such Creditor (provided that unless an Event of
\nDefault shall have occurred and be continuing all requests for any such
\nexaminations, meetings or discussions shall be coordinated through the
\nAdministrative Agent); (vi) upon reasonable notice, allow (with the presence of
\nBorrower if Borrower so elects to participate) Administrative Agent and the Lead
\nArranger or any representative chosen by the Majority Lenders to consult with
\nBorrower’s independent public accountants and auditors with respect to the
\nfinancial affairs of the Companies at the request of Administrative Agent and
\nthe Lead Arranger or any representative chosen by the Majority Lenders, Borrower
\nshall deliver a letter addressed to such accountants instructing them to comply
\nwith the provisions of this Section 9.03(vi); (vii) perform in all material
\nrespects all of its Contractual Obligations, except where such failure to so
\nperform, singly or in the aggregate with all other such failures, would not have
\na Material Adverse Effect; (viii) pay all claims (including, without limitation,
\nclaims for labor, services, materials and supplies) for sums which have become
\ndue and payable and which by law have or may become a Lien (other than a Lien
\npermitted under Section 9.07) upon any Property of any Company, prior to the
\ntime when any penalty or fine shall be incurred with respect thereto; provided,
\nhowever, that no claims referred to in this clause (viii) need be paid if (x)
\nbeing contested in good faith by appropriate proceedings diligently instituted
\nand conducted and if such reserve or other appropriate provision, if any, as
\nshall be required in conformity with GAAP shall have been made therefor or (y)
\nthe aggregate of all such failures to pay would not result in a Material Adverse
\nEffect; provided, further, however, that any such claim or change imposed or
\nasserted against Collateral shall be contested in a manner that satisfies the
\nContested Collateral Lien Conditions.<\/p>\n
9.04. Insurance. (A) Each Company shall maintain in full force and effect
\ninsurance with respect to its Properties and business against at least such
\ncasualties and contingencies and of at least such types and in at least such
\namounts (with no greater risk retention) as are usually maintained,<\/p>\n
-79-<\/p>\n
retained or insured against in the same general area by companies of established
\nreputation of similar size and that are engaged in the same or a similar
\nbusiness. All such policies and programs shall be maintained with responsible
\nand reputable insurers of companies engaged in similar businesses and owning
\nsimilar property in the same general geographic areas in which such Company, as
\napplicable, operates.<\/p>\n
(B) All policies of insurance required to be maintained by any Company must
\nname Administrative Agent on behalf of the Creditors, as loss payee (in the case
\nof property insurance and business interruption insurance) or additional insured
\n(in the case of liability insurance), as applicable, and must provide that no
\ncancellation, non-renewal or modification (including reduced coverage) of the
\npolicies will be made without thirty days’ prior written notice by the
\napplicable insurance carriers to Administrative Agent and if the insurance
\ncarrier shall have received written notice from Administrative Agent of the
\noccurrence and continuance of an Event of Default, the insurance carrier shall
\npay all proceeds otherwise payable to any Company under such policies directly
\nto Administrative Agent.<\/p>\n
(C) Borrower shall give prompt written notice of any loss in excess of
\n$10,000,000 to the insurance carrier and to Administrative Agent.<\/p>\n
9.05. Limitation on Lines of Business. No Company shall directly or
\nindirectly, engage to any material extent in any line or lines of business
\nactivity other than the business of the type conducted by the Companies as of
\nthe Effective Date and any other businesses reasonably related thereto.<\/p>\n
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions. No
\nCompany shall, directly or indirectly, in a single transaction or series of
\ntransactions, (1) merge, consolidate or amalgamate with or into any Person, or
\nliquidate, wind up or dissolve itself (or suffer any liquidation or
\ndissolution), (2) effect any Acquisition, or (3) effect any Disposition (or
\nagree to do any of the foregoing), except that each of the following shall be
\npermitted:<\/p>\n
(a) purchases, sales and Dispositions of Property and services in the
\n ordinary course of business;<\/p>\n
(b) the pledge of the Collateral pursuant to the Security Documents
\n and the incurrence of any Permitted Lien;<\/p>\n
(c) so long as no Default then exists or would arise therefrom, the
\n merger, consolidation, dissolution or liquidation of (1) any Subsidiary
\n with or into (i) Borrower so long as Borrower shall be the continuing or
\n surviving entity or (ii) any Qualified Subsidiary so long as the continuing
\n or surviving entity shall be a Qualified Subsidiary; and (2) any
\n Non-Qualified Subsidiary with or into any other Non-Qualified Subsidiary;<\/p>\n
(d) Dispositions by any Company to any other Company;<\/p>\n
(e) Dispositions of used, worn out, obsolete or surplus Property by
\n any Company in the ordinary course of business and the abandonment or other
\n Disposition of Intellectual Property that is, in the reasonable judgment of
\n Borrower, no longer economically practicable to<\/p>\n
-80-<\/p>\n
maintain or useful in the conduct of the business of the Companies taken as
\n a whole; provided, however, that in each case the proceeds thereof shall be
\n reinvested in the business of a Company within one year of such
\n Disposition;<\/p>\n
(f) the sale or discount without recourse of accounts receivable or
\n notes receivable arising in the ordinary course of business, or the
\n conversion or exchange of accounts receivable into or for notes receivable,
\n in connection with the compromise or collection thereof; provided, however,
\n that, in the case of any Foreign Subsidiary, any such sale or discount may
\n be with recourse if such sale or discount is consistent with customary
\n practice in such Foreign Subsidiary’s country of business and the aggregate
\n amount of any such recourse shall (to the extent such recourse is required
\n by GAAP to be included as Indebtedness on the consolidated balance sheet of
\n Consolidated Companies) be included in the determination of Indebtedness
\n for purposes of Section 9.08;<\/p>\n
(g) so long as no Event of Default then exists or would arise
\n therefrom, any Disposition for fair market value so long as the net
\n proceeds from all Dispositions does not exceed (i) $10,000,000 in any
\n fiscal year or (ii) $25,000,000 in the aggregate after the Effective Date;
\n provided, however, that the Net Available Proceeds therefrom shall be
\n applied as specified in Section 2.10(a)(iii);<\/p>\n
(h) Acquisitions by any Company; provided, however, that each
\n Acquisition under this Section 9.06(h) shall satisfy each of the following
\n conditions:<\/p>\n
(i) no Event of Default then exists or would arise therefrom;<\/p>\n
(ii) after giving pro forma effect in accordance with GAAP to
\n such Acquisition, Borrower shall be in compliance with all covenants
\n set forth in Section 9.11 as of the Test Date immediately prior to the
\n consummation thereof (assuming, for purposes of Section 9.11, that
\n such Acquisition, and all other Permitted Acquisitions consummated
\n since the first day of the relevant measurement period for each
\n financial covenant set forth in Section 9.11 ending on or prior to the
\n date of such Acquisition, had occurred on the first day of such
\n relevant measurement period);<\/p>\n
(iii) the board of directors of the acquired Person shall not
\n have indicated privately at the time of consummation of the
\n Acquisition to any Company or publicly its opposition to the
\n consummation of such Acquisition;<\/p>\n
(iv) the Person or business acquired shall, after giving effect
\n to such Acquisition, be merged or combined or consolidated with or
\n into Borrower or a Subsidiary (so long as, with respect to Borrower,
\n Borrower is the surviving Company) or shall be or become, after giving
\n effect thereto, a Subsidiary;<\/p>\n
(v) with respect to any Acquisition involving Acquisition
\n Consideration of more than $10,000,000, Borrower shall have provided
\n the Lenders, not fewer than 15 days prior to the proposed closing
\n thereof, with (1) written notice thereof and a brief description of
\n the material terms thereof and a brief description of the business<\/p>\n
-81-<\/p>\n
or Person to be acquired, (2) to the extent available to Borrower,
\n historical financial statements for the last three fiscal years (or,
\n if less, for the period of such Person’s existence) of the Person or
\n business to be acquired for the most recent interim period which are
\n available, (3) copies of all available material documentation
\n pertaining to such Acquisition, and (4) all such other available
\n information and data relating to such Acquisition or the Person or
\n business to be acquired as may be reasonably requested by the Lead
\n Arranger or the Majority Lenders;<\/p>\n
(vi) with respect to any Acquisition involving Acquisition
\n Consideration of more than $10,000,000, Borrower shall have delivered
\n to the Lead Arranger and the Lenders an Officers’ Certificate at least
\n five days prior to the date of consummation of such Acquisition (but
\n in any event not earlier than a date which would result in the Test
\n Date occurring on or immediately prior to the consummation of such
\n Acquisition being more than 135 days prior to the date of consummation
\n of such Acquisition) certifying that (1) such Acquisition complies
\n with this Section 9.06(h) (which shall have attached thereto
\n reasonably detailed backup data and calculations showing such
\n compliance), and (2) such Acquisition is not reasonably likely to have
\n a Material Adverse Effect;<\/p>\n
(vii) after giving effect to such Acquisition (including any
\n incurrence of Indebtedness by the Companies in connection therewith),
\n the Borrower shall thereupon have the ability to borrow not less than
\n $20,000,000 in the form of a Revolving Loan pursuant to this
\n Agreement;<\/p>\n
(viii) the Acquisition Consideration for such Acquisition (other
\n than any Acquisition Consideration consisting of Equity Interests
\n (other than Disqualified Equity Interests) or proceeds from the
\n issuance by Borrower of its Equity Interests (other than Disqualified
\n Equity Interests)) (collectively, the “Equity Acquisition
\n Consideration”), together with the aggregate amount of the Acquisition
\n Consideration (other than Equity Acquisition Consideration) for all
\n Acquisitions effected pursuant to this Section 9.06(h) since the
\n Effective Date, shall not exceed $30,000,000; and<\/p>\n
(ix) with respect to any Acquisition (x) by a Qualified Company
\n of Property of the type constituting Collateral or (y) of a Person
\n required to become a Qualified Subsidiary, the Company making such
\n Acquisition shall take all actions required pursuant to Sections 9.12
\n and 9.13 hereof to make such Property or Person subject to the
\n Security Documents.<\/p>\n
(i) transfers resulting from any Casualty Event; provided, however,
\n that the Net Available Proceeds therefrom shall be applied as specified in
\n Section 2.10(a)(i);<\/p>\n
(j) licenses or sublicenses by any Company of software, Intellectual
\n Property and general intangibles and leases, licenses or subleases of other
\n Property in the ordinary course of business, which do not materially
\n interfere with the business of the Companies;<\/p>\n
-82-<\/p>\n
(k) any consignment arrangements or similar arrangements for the sale
\n of assets in the ordinary course of business of the Companies; and<\/p>\n
(l) the making of Investments permitted by Section 9.09 and the
\n liquidation in the ordinary course of business of (A) Cash Equivalents and
\n (B) Investments made pursuant to clause (a) of the definition of Permitted
\n Investments.<\/p>\n
No Company shall, unless consented to by the Majority Lenders, effect the
\nDisposition of any Equity Interests of any Subsidiary unless in compliance with
\nthe foregoing provisions and unless all such Equity Interests owned by the
\nCompanies are sold pursuant thereto in accordance with the Credit Documents,
\nupon which sale the Guarantee by such Subsidiary shall be automatically deemed
\nto be released.<\/p>\n
Subject to Section 12.04, to the extent the Majority Lenders waive the
\nprovisions of this Section 9.06 with respect to the sale or other disposition of
\nany Collateral, or any Collateral is sold or otherwise disposed of as permitted
\nby this Section 9.06 (other than to any Company), such Collateral in each case
\nshall be sold or otherwise disposed of free and clear of the Liens created by
\nthe Security Documents and Administrative Agent shall take such actions as are
\nappropriate in connection therewith.<\/p>\n
9.07. Limitation on Liens and Negative Pledges. No Company shall, directly
\nor indirectly, create, incur, assume or suffer to exist any Lien upon or with
\nrespect to any of its Property, whether now owned or hereafter acquired, except
\nfor each of the following (which are herein collectively referred to as
\n“Permitted Liens”):<\/p>\n
(a) Liens (including any Prior Liens) in existence on the Effective
\n Date and identified in Schedule 9.07;<\/p>\n
(b) Permitted Customary Liens;<\/p>\n
(c) Liens upon Property acquired after the Effective Date by any
\n Company, which Liens either (A) existed on such Property before the time of
\n its acquisition and was not created in anticipation thereof, or (B) were
\n created solely for the purpose of securing Indebtedness representing, or
\n incurred to finance or refinance, the cost of such Property or improvements
\n thereon; provided, however, that (1) no such Lien shall extend to or cover
\n any Property of any Company other than the Property so acquired and
\n improvements thereon and proceeds thereof, (2) the principal amount of
\n Indebtedness secured by any such Lien shall at no time exceed 100% of the
\n fair market value of such Property at the time it was acquired or
\n constructed and (3) the Indebtedness secured by any such Lien is permitted
\n by Section 9.08(f);<\/p>\n
(d) Liens existing on any Property at the time such Property is
\n acquired or the owner thereof becomes a Subsidiary or is merged or
\n consolidated with or into a Subsidiary and, in each case, not created in
\n contemplation of or in connection with such event; provided, however, that
\n (1) such Liens do not extend to any other Property of any Company and (2)
\n any Indebtedness secured by any such Lien is permitted by Section 9.08(g);<\/p>\n
-83-<\/p>\n
(e) Liens not otherwise permitted hereunder securing obligations of
\n any Company at any time not exceeding (as to all of the Companies) in the
\n aggregate $5,000,000;<\/p>\n
(f) Liens securing obligations under Swap Contracts with any Creditor
\n to the extent any such Swap Contract relates to the Loans and only so long
\n as the Obligations are secured by the same collateral on at least a pari
\n passu basis;<\/p>\n
(g) Liens securing obligations in respect of Capital Leases solely on
\n Property (including improvements thereto and the proceeds thereof) subject
\n to such Capital Leases; provided, however, that such Capital Leases are
\n permitted by Section 9.08(f);<\/p>\n
(h) Liens created under the Credit Documents securing the Obligations;<\/p>\n
(i) Liens securing Contingent Obligations permitted under clause (e)
\n of the definition of Permitted Obligations not exceeding (as to all of the
\n Companies) $8,000,000 in aggregate amount at any time outstanding;<\/p>\n
(j) any extension, renewal or replacement of the foregoing; provided,
\n however, that the Liens permitted by this Section 9.07(j) shall not cover
\n any additional principal amount of Indebtedness or Property (other than
\n like Property substituted for Property covered by such Lien); and<\/p>\n
(k) Liens securing obligations in respect of trade letters of credit
\n permitted under Section 9.08(e) and clause (f) of the definition of
\n “Permitted Obligations,” provided that such Liens shall not extend to any
\n Property other than the goods financed or paid for with such letters of
\n credit, documents of title in respect thereof and proceeds thereof.<\/p>\n
Except with respect to (i) specific Property encumbered pursuant to a Lien
\npermitted to be incurred pursuant to this Section 9.07, (ii) specific Property
\nto be sold pursuant to any Disposition or Excluded Disposition or (iii) specific
\nProperty subject to a lease under which a Company is the lessee, no Company will
\ndirectly or indirectly enter into or suffer to exist any Contractual Obligation
\non or after the Effective Date prohibiting or restricting in any manner
\n(directly or indirectly and including by way of covenant, representation or
\nwarranty or event of default) the creation or assumption of any Lien upon its
\nProperty, whether now owned or hereafter acquired, except pursuant to (1) the
\nCredit Documents, (2) any other agreement that expressly allows and does not
\nrestrict in any manner (directly or indirectly) Liens created pursuant to the
\nCredit Documents on Property of any Company (whether now owned or hereafter
\nacquired) securing the Obligations and does not require the direct or indirect
\ngranting of any Lien securing any Indebtedness or other obligation by virtue of
\nthe granting of Liens on or pledge of Property of any Company to secure the
\nObligations, (3) any industrial revenue or development bonds (in which case, any
\nprohibition or limitation shall only be effective against the Property financed
\nor acquired thereby) or operating leases of Real Property and related personal
\nproperty entered into in the ordinary course of business or (4) any agreement or
\ninstrument evidencing or governing any Indebtedness permitted under Section
\n9.08(b), (g) or (h).<\/p>\n
9.08. Prohibition on Disqualified Capital Stock; Limitation on Indebtedness
\nand Contingent Obligations. No Company shall directly or indirectly issue or
\npermit to be outstanding any<\/p>\n
-84-<\/p>\n
Disqualified Capital Stock. No Company shall, directly or indirectly, incur or
\nsuffer to exist any Indebtedness or any Contingent Obligation, except for each
\nof the following:<\/p>\n
(a) Obligations (including the Guarantees) under the Credit Documents;<\/p>\n
(b) Indebtedness and Contingent Obligations outstanding on the
\n Effective Date and listed in Schedule 8.22 and specified on Schedule 8.22
\n as to remain outstanding after the Effective Date and refinancings thereof
\n that do not increase the aggregate principal amount thereof;<\/p>\n
(c) Indebtedness and Contingent Obligations of any Company owing to
\n any Company; it being understood that the aggregate principal amount of
\n Indebtedness of all Non-Qualified Companies owing to all Qualified
\n Companies permitted under this clause (c) (other than Indebtedness to the
\n extent that the proceeds therefrom shall have been used to fund Permitted
\n Acquisitions) that is outstanding at any one time shall not exceed
\n $10,000,000 in the aggregate;<\/p>\n
(d) Contingent Obligations of any Company in respect of Indebtedness
\n or other liabilities of any Company to the extent that the existence of
\n such Indebtedness or other liabilities is not prohibited under this
\n Agreement and on substantially similar terms as such Indebtedness;<\/p>\n
(e) Permitted Obligations;<\/p>\n
(f) Indebtedness and Contingent Obligations of the Companies secured
\n by Liens permitted under Section 9.07(c) or (g) (and extensions, renewals
\n or replacements thereof pursuant to Section 9.07(j)) not exceeding
\n $5,000,000 in the aggregate at any time outstanding for the Companies
\n collectively;<\/p>\n
(g) Indebtedness of a Person that becomes a Subsidiary after the
\n Effective Date; provided, however, that (1) such Indebtedness existed at
\n the time such Person became a Subsidiary and was not created in connection
\n with or in anticipation thereof, (2) immediately after giving effect to the
\n acquisition of such Person by Borrower no Event of Default shall have
\n occurred and be continuing, and (3) the aggregate amount of Indebtedness
\n outstanding at any time pursuant to this Section 9.08(g) shall not exceed
\n $5,000,000 for all Subsidiaries;<\/p>\n
(h) Indebtedness of Foreign Subsidiaries, and Contingent Obligations
\n of Foreign Subsidiaries in respect of such Indebtedness, in an aggregate
\n principal amount at any time outstanding not to exceed $5,000,000;<\/p>\n
(i) Indebtedness, if any, under any Swap Contract in respect of the
\n Loans or Letters of Credit or otherwise entered into by the Companies to
\n hedge against interest rate, currency exchange rate or commodity price
\n risk, in each case arising in the ordinary course of business and not for
\n speculative purposes; and<\/p>\n
-85-<\/p>\n
(j) so long as no Event of Default exists at the time of incurrence
\n thereof or would arise therefrom, Indebtedness and Contingent Obligations
\n incurred by any Company not to exceed in the aggregate at any time
\n outstanding $5,000,000.<\/p>\n
All intercompany debt owed by any Qualified Company to any Non-Qualified
\nCompany shall be unsecured and subordinate in right of payment (to the same
\nextent as the subordination provisions set forth in Exhibit B hereto) to the
\nObligations.<\/p>\n
9.09. Limitation on Investments; Limitation on Creation of Subsidiaries.
\n(A) No Company shall, directly or indirectly, make or permit to remain
\noutstanding any Investments, except for each of the following:<\/p>\n
(a) Permitted Investments and Investments that were Permitted
\n Investments when made;<\/p>\n
(b) (i) Investments in any Qualified Company or in any Subsidiary if
\n as a result thereof or in connection therewith such Subsidiary becomes a
\n Qualified Subsidiary and (ii) Investments by any Non-Qualified Subsidiary
\n in (A) any Company or (B) any Person not a Subsidiary if as a result
\n thereof or in connection therewith such Person becomes a Subsidiary
\n (provided that no Investment will be permitted in respect of any Subsidiary
\n with respect to which Borrower has not complied with Section 9.20 to the
\n extent that such Section 9.20 is applicable to such Subsidiary);<\/p>\n
(c) Investments outstanding on the Effective Date and identified in
\n Schedule 9.09 and, so long as no Default then exists or would arise
\n therefrom, any renewals, amendments and replacements thereof that do not
\n increase the amount thereof;<\/p>\n
(d) advances, loans or extensions of credit by any Company to (1)
\n officers, directors or employees of any Company and, in the case of loans
\n and advances to finance the acquisition of common stock of Borrower, to
\n immediate family members or relatives thereof, or trusts or partnerships
\n for the benefit of any of the foregoing, or any of their heirs, executors
\n or legal representatives, (i) in the ordinary course of business for travel
\n and entertainment or relocation expenses, (ii) made after the Effective
\n Date for other purposes, not to exceed (as to Borrower and all its
\n Subsidiaries) $2,000,000 in the aggregate outstanding at any time, plus the
\n net cash proceeds received by Borrower since the Effective Date from the
\n issuance or sale of Equity Interests of Borrower (including any Equity
\n Rights in respect thereof) to any such Person, or (iii) relating to
\n indemnification or reimbursement of any officers, directors or employees in
\n respect of liabilities relating to their serving in any such capacity or as
\n otherwise specified in Section 9.15, and (2) officers, directors or
\n employees of any Company in connection with stock option, restricted stock
\n or other similar plans so long as (x) such loans do not involve cash
\n payments by any Company and (y) no Company incurs any obligations at any
\n time to repurchase the stock so purchased;<\/p>\n
(e) additional Investments in any Non-Qualified Subsidiary of which,
\n after giving effect to such Investments, not less than 51% of the Equity
\n Interests are owned directly or indirectly by Borrower, in an aggregate
\n amount not to exceed $5,000,000 at any time outstanding;<\/p>\n
-86-<\/p>\n
(f) Investments in any Non-Qualified Subsidiary to the extent made in
\n the ordinary course to fund or support the ordinary course operations of
\n such Subsidiary; provided, however, that (1) other than with respect to any
\n Subsidiary of which, after giving effect to such Investment, not less than
\n 51% of the Equity Interests are owned directly or indirectly by Borrower,
\n the amount of such Investments made pursuant to this clause (f) shall not
\n exceed $10,000,000 in the aggregate outstanding at any time, (2) no such
\n Investment shall be permitted which individually or in the aggregate would
\n result in all or any substantial part of the assets of the Qualified
\n Companies being transferred to Non-Qualified Subsidiaries, and (3) all such
\n Investments shall be evidenced by Intercompany Notes, which shall be
\n pledged to Administrative Agent pursuant to the Security Agreement;<\/p>\n
(g) the ownership of Equity Interests of any Subsidiary existing on
\n the Effective Date or created or acquired thereafter in accordance with the
\n provisions hereof and any additional Equity Interests issued in exchange
\n therefor or as a dividend thereon;<\/p>\n
(h) Investments consisting of non-cash consideration received in the
\n form of securities, notes or similar obligations in connection with any
\n Disposition; provided, however, that (1) the aggregate amount of such
\n non-cash consideration received in connection with any such Disposition
\n shall not exceed 25% of the total consideration received in connection with
\n such Disposition, (2) such non-cash consideration is pledged pursuant to
\n the appropriate Security Document (other than if received by any Foreign
\n Subsidiary), and (3) the aggregate amount of such Investments made and
\n outstanding at any time shall not exceed $5,000,000 (without giving effect
\n to any write-downs or write-offs thereof);<\/p>\n
(i) so long as no Event of Default then exists or would arise
\n therefrom, Investments consisting of or made in order to consummate
\n Permitted Acquisitions;<\/p>\n
(j) Swap Contracts permitted under Section 9.08(i); and<\/p>\n
(k) so long as no Event of Default then exists or would arise
\n therefrom, Investments not otherwise permitted by this Section 9.09 in an
\n aggregate amount outstanding at any time not to exceed $5,000,000 for all
\n Companies.<\/p>\n
(B) No Company shall, directly or indirectly, create or acquire any
\nSubsidiary without the prior written consent of the Majority Lenders, which
\nconsent shall not be unreasonably withheld; provided, however, that (1) the
\nprovisions of this Section 9.09(B) shall not require the Majority Lenders’
\nconsent for (I) the creation or acquisition of direct or indirect Wholly Owned
\nSubsidiaries so long as Section 9.20 is complied with at the time of formation
\nor acquisition thereof and such creation or acquisition is otherwise permitted
\nunder Section 9.09(A) and (II) the creation or acquisition of any Subsidiary
\nwhich is not a Wholly Owned Subsidiary so long as the Investment made in
\nconnection therewith complies with Section 9.09(A) and so long as Section 9.20
\nis complied with at the time of formation or acquisition thereof; and (2) all
\nInvestments in any Subsidiary, including in connection with the creation or
\nacquisition thereof, must comply with Section 9.09(A).<\/p>\n
9.10. Limitation on Dividend Payments. No Company shall, directly or
\nindirectly, declare or make any Dividend Payment at any time, except, without
\nduplication:<\/p>\n
-87-<\/p>\n
(a) any Subsidiary may declare and make Dividend Payments to Borrower
\n or any Subsidiary and to minority interest holders in such Subsidiary if
\n made on a pro rata basis to all holders of Equity Interests of the
\n applicable class in such Subsidiary at the same time except that no
\n Qualified Subsidiary may make any Dividend Payment to any Non-Qualified
\n Subsidiary;<\/p>\n
(b) the making of the Special Dividend Payment; and<\/p>\n
(c) so long as no Event of Default has occurred and is continuing or
\n would arise therefrom:<\/p>\n
(i) repurchases of Equity Interests of Borrower in an amount not
\n to exceed $20,000,000 in the aggregate after the Effective Date;
\n provided, however, that after giving effect to any such repurchase,
\n Borrower shall thereupon have the ability to borrow not less than
\n $30,000,000 in the form of a Revolving Loan pursuant to this
\n Agreement;<\/p>\n
(ii) Dividend Payments to redeem Equity Interests (other than
\n Disqualified Capital Stock) held by current or former employees,
\n officers or directors of any Company (or their estates or
\n beneficiaries of their estates) upon the death, disability, retirement
\n or termination of employment or directorship, as the case may be,
\n pursuant to any employment agreement, management equity subscription
\n agreement, restricted stock plan, stock option agreement or other
\n similar arrangements; provided, however, that the aggregate cash
\n consideration paid, or distributions made, pursuant to this clause (c)
\n (ii) shall not exceed $2,000,000 in any fiscal year ending after the
\n Effective Date; and<\/p>\n
(iii) redemption of options or warrants in connection with the
\n “cashless exercise” thereof.<\/p>\n
9.11. Financial Covenants.<\/p>\n
(a) Maximum Total Leverage Ratio. The Total Leverage Ratio shall not, as of
\nany Test Date occurring during any period set forth in the table below, exceed
\nthe ratio set forth opposite such period in the table below:<\/p>\n
Period Ratio
\n —— —–<\/p>\n
Closing Date to December 31, 2002 2.25 to 1.0
\n January 1, 2003 to December 31, 2004 2.00 to 1.0
\n January 1, 2005 to Final Maturity Date 1.75 to 1.0<\/p>\n
(b) Minimum Consolidated EBITDA. Consolidated EBITDA shall not for the
\nprevious four consecutive fiscal quarters most recently ended as of any Test
\nDate occurring during any period set forth in the table below, be less than the
\namount set forth opposite such period in the table below:<\/p>\n
-88-<\/p>\n
Period EBITDA
\n —— ——<\/p>\n
Closing Date- $115,000,000
\n December 31, 2001<\/p>\n
January 1, 2002- 100,000,000
\n March 31, 2002<\/p>\n
April 1, 2002- 100,000,000
\n June 30, 2002<\/p>\n
July 1, 2002- 105,000,000
\n September 30, 2002<\/p>\n
October 1, 2002- 115,000,000
\n December 31, 2002<\/p>\n
January 1, 2003- 117,000,000
\n March 31, 2003<\/p>\n
April 1, 2003- 120,000,000
\n June 30, 2003<\/p>\n
July 1, 2003- 120,000,000
\n September 30, 2003<\/p>\n
October 1, 2003- 122,000,000
\n December 31, 2003<\/p>\n
January 1, 2004- 125,000,000
\n March 31, 2004<\/p>\n
April 1, 2004- 128,000,000
\n June 30, 2004<\/p>\n
July 1, 2004- 130,000,000
\n September 30, 2004<\/p>\n
October 1, 2004- 133,000,000
\n December 31, 2004<\/p>\n
2005 143,000,000<\/p>\n
2006 152,000,000<\/p>\n
2007 160,000,000<\/p>\n
(c) Limitation on Capital Expenditures.<\/p>\n
(A) No Company shall, directly or indirectly, permit the aggregate amount
\nof all Capital Expenditures made by the Companies in any fiscal year (not
\nincluding the additional Capital Expenditures permitted by Section 9.11(c)(B))
\nto exceed, for the fiscal year ending on (1) December 31, 2001, $100,000,000,
\n(2) December 31, 2002, $100,000,000, (3) December 31, 2003, $105,000,000 and (4)
\nDecember 31, 2004 and for each fiscal year thereafter, $110,000,000.<\/p>\n
-89-<\/p>\n
(B) If actual Consolidated EBITDA for any fiscal year exceeds the minimum
\nConsolidated EBITDA set forth in Section 9.11(b) for such fiscal year (such
\nexcess, the “Excess EBITDA”), the Companies shall be permitted to make
\nadditional Capital Expenditures in respect of Rental Assets only (the
\n“Additional Rental Capex”) in the applicable amounts set forth in the following
\ntable:<\/p>\n
\n\nIf Excess EBITDA is: The Additional Rental Capex amount is:
\n——————- ————————————-
\n
\n$5,000,000 or over but not over $15,000,000 50% of the Excess EBITDA over $5,000,000<\/p>\nOver $15,000,000 but not over $25,000,000 $5,000,000 plus 75% of the Excess EBITDA over
\n $15,000,000<\/p>\n
Over $25,000,000 $12,500,000 plus 100% of the Excess EBITDA over
\n $25,000,000
\n<\/c><\/s><\/caption>\n<\/table>\n
(C) If, with respect to any fiscal year, the amount permitted to be
\nexpended by the Companies on Capital Expenditures pursuant to clause (A) of this
\nSection 9.11(c) (such amount, the “Base Amount”) for such year exceeds the
\namount actually expended by the Companies in such year in respect of Capital
\nExpenditures (not including amounts spend on Capital Expenditures permitted by
\nthe immediately preceding clause (B)), then such excess (up to an amount not to
\nexceed the Applicable Percentage of the Base Amount (the “Carryover”)) shall be
\napplied to increase the maximum amount permitted to be spent by the Companies in
\nrespect of Capital Expenditures in the next succeeding (but not any other)
\nfiscal year; provided, however, that in determining the amount of Carryover for
\nany fiscal year, the amount expended in respect of Capital Expenditures shall
\nfirst be deemed to be from the amount allocated to such fiscal year before
\ngiving effect to any Carryover.<\/p>\n
9.12. Additional Security; Landlord Consents. (a) If any Company (other
\nthan any Excluded Subsidiary or any Foreign Subsidiary) shall acquire any
\nProperty after the Closing Date (other than (x) any Real Property, automobiles
\nor Property expressly excluded from the Security Agreement and (y) any Property
\nsubject to a Lien expressly permitted by Section 9.07 solely to the extent that
\nsuch Lien or the obligations secured thereby expressly prohibit the pledge of
\nthe Property subject to such Lien) as to which Administrative Agent, for the
\nbenefit of the Lenders, does not have a perfected Lien, promptly (i) execute and
\ndeliver to Administrative Agent such amendments to the Security Documents or
\nsuch other documents as Administrative Agent deems necessary or advisable in
\norder to grant to Administrative Agent, for the benefit of the Lenders, a
\nsecurity interest in such Property and (ii) take all actions necessary or
\nadvisable to grant to Administrative Agent, for the benefit of the Lenders, a
\nperfected security interest in such Property, subject only to Permitted Liens,
\nincluding without limitation, the filing of UCC financing statements in such
\njurisdictions as may be required by the Security Documents or by law or as may
\nbe requested by Administrative Agent.<\/p>\n
(b) At its own expense, Borrower shall request, and use reasonable best
\nefforts (it being understood that such efforts shall not include the payment of
\nmoney or the agreement to material concessions) to obtain, (i) a consent (the
\n“Landlord Consents”), substantially in the form of Exhibit J or such other form
\nas may be reasonably satisfactory to Administrative Agent, from the landlord of
\neach Real Property listed in Schedule 9.12(C), copies of which consent, if
\nobtained, shall be delivered<\/p>\n
-90-<\/p>\n
to Administrative Agent by the Effective Date or as soon as practicable
\nthereafter and (ii) prior to entering into a lease of a facility in which at
\nleast $5,000,000 of Inventory is, or is expected to be, located on or after the
\nEffective Date, a consent, substantially in the form of Exhibit J or such other
\nform as may be reasonably satisfactory to Administrative Agent, from each
\nlandlord of any such facility.<\/p>\n
(c) The costs of all actions taken by the parties in connection with this
\nSection 9.12, including reasonable costs of counsel for Administrative Agent,
\nshall be paid by the Obligors promptly following written demand.<\/p>\n
9.13. Security Interests; Further Assurances. (a) Each Qualified Company
\nshall, promptly, upon the reasonable request of Administrative Agent or any
\nLender, at Borrower’s expense, execute, acknowledge and deliver, or cause the
\nexecution, acknowledgment and delivery of, and thereafter register, file or
\nrecord, or cause to be registered, filed or recorded, in an appropriate
\ngovernmental office, any document or instrument supplemental to or confirmatory
\nof the Security Documents or otherwise deemed by Administrative Agent reasonably
\nnecessary or desirable for the continued validity, perfection and priority of
\nthe Liens on the Collateral covered thereby superior to and prior to the rights
\nof all third Persons other than the holders of Permitted Collateral Liens, or
\nobtain any consents as may be necessary or appropriate in connection therewith.
\nEach Qualified Company shall deliver or cause to be delivered to Administrative
\nAgent from time to time such other documentation, consents, authorizations,
\napprovals and orders in form and substance reasonably satisfactory to
\nAdministrative Agent as Administrative Agent shall reasonably deem necessary to
\nperfect or maintain the Liens on the Collateral pursuant to the Security
\nDocuments. Upon the exercise by Administrative Agent or the Lenders of any
\npower, right, privilege or remedy pursuant to any Credit Document which requires
\nany consent, approval, registration, qualification or authorization of any
\nGovernmental Authority, each Qualified Company shall execute and deliver all
\napplications, certifications, instruments and other documents and papers that
\nAdministrative Agent or the Lenders may be so required to obtain.<\/p>\n
(b) At the request of Administrative Agent made at any time after the
\noccurrence and during the continuance of any Event of Default and in form and
\nmanner reasonably satisfactory to Administrative Agent, each Obligor shall
\nlegend its Accounts, Instruments and the other books, records and documents of
\nsuch Obligor evidencing or pertaining to its Accounts with an appropriate
\nreference to the fact that such Accounts have been pledged to Administrative
\nAgent for the benefit of the Secured Parties and that Administrative Agent has a
\nsecurity interest therein.<\/p>\n
9.14. Compliance with Environmental Laws. Each Company shall (a) comply
\nwith all Environmental Laws, and will keep or cause all Real Property to be kept
\nfree of any Liens under Environmental Laws, unless failure to do any of the
\nforegoing would not have a Material Adverse Effect; and (b) in the event of any
\nHazardous Material at, on, under or emanating from any Real Property which could
\nresult in liability under or a violation of any Environmental Law, in each case
\nwhich could reasonably be expected to have a Material Adverse Effect, undertake,
\nand\/or cause any of its respective tenants or occupants to undertake, at their
\nsole expense, any action required pursuant to Environmental Laws to mitigate and
\neliminate such condition; provided, however, that no Company shall be required
\nto comply with any order or directive which is being contested in good faith and
\nby proper proceedings so long as it has maintained adequate reserves with
\nrespect to such compliance to the extent required in accordance with GAAP.<\/p>\n
-91-<\/p>\n
9.15. Limitation on Transactions with Affiliates and Related Persons. No
\nCompany shall, directly or indirectly: enter into or permit to exist any
\ntransaction (including, without limitation, the purchase, sale, lease or
\nexchange of any Property, the rendering of any service, or a merger, Acquisition
\nor other consolidation), with or for the benefit of any Affiliate or any Related
\nPerson (an “Affiliate Transaction”) unless such Affiliate Transaction is
\notherwise not prohibited under this Agreement and is (i) between or among
\nCompanies, (ii) between or among a Company (on the one hand) and one or more
\nWholly Owned Subsidiaries, or (iii) on fair and reasonable terms that are not
\nless favorable to such Company than those that are reasonably obtainable at the
\ntime in an arm’s-length transaction with a Person that is not such an Affiliate,
\nexcept that, notwithstanding the foregoing, each of the following shall be
\npermitted: (a) loans or advances to employees permitted by Section 9.09 and
\nDividend Payments permitted by Section 9.10; (b) fees and compensation paid to,
\nand customary indemnity and reimbursement provided on behalf of, officers,
\ndirectors and employees of any Company in the ordinary course of business; (c)
\ntransactions and agreements in existence on the Effective Date and listed in
\nSchedule 9.15 (as such agreements are in effect on the Effective Date, the
\n“Existing Affiliate Agreements”) and any amendment thereto that is not
\ndisadvantageous to the Lenders in any material respect; and (d) any employment
\nagreements entered into by any Company in the ordinary course of business.<\/p>\n
9.16. Limitation on Accounting Changes; Limitation on Investment Company
\nStatus. No Company shall make or permit any change in (i) accounting policies or
\nreporting practices, except immaterial changes and except as required or
\npermitted by generally accepted accounting principles or (ii) its fiscal year
\nend (December 31 of each year). No Obligor shall be or become an investment
\ncompany subject to the registration requirements under the United States
\nInvestment Company Act of 1940, as amended.<\/p>\n
9.17. Limitation on Modifications of Certain Documents, Etc. No Company
\nshall, directly or indirectly, consent to any modification, supplement, waiver
\nor termination of, or amend, in any manner which could reasonably be expected to
\nbe materially adverse to the Lenders, or result in a Material Adverse Change,
\nany of the provisions of any Organic Document.<\/p>\n
9.18. Interest Rate Protection Agreements. Within 90 days after the Closing
\nDate, Borrower shall enter into Interest Rate Protection Agreements designed to
\nprotect Borrower against fluctuations in interest rates with respect to at least
\n50% of the aggregate principal amount of Term B Facility Loans for a period of
\nat least 36 months from the Closing Date on terms and with counterparties
\nreasonably satisfactory to the Lead Arranger and the Administrative Agent.<\/p>\n
9.19. Limitation on Certain Restrictions Affecting Subsidiaries. No Company
\nshall, directly or indirectly, create or otherwise cause or suffer to exist or
\nbecome effective any direct or indirect encumbrance or restriction on the
\nability of any Subsidiary to (a) pay dividends or make any other distributions
\non such Subsidiary’s Equity Interests or any other interest or participation in
\nits profits owned by any Company, or pay any Indebtedness or any other
\nobligation owed to any Company, (b) make Investments in or to any Company, or
\n(c) transfer any of its Property to any Company, except that each of the
\nfollowing shall be permitted (i) any such encumbrances or restrictions existing
\non the Effective Date and described on Schedule 9.19 or existing under or by
\nreason of (x) applicable Law, or (y) the Credit Documents, (ii) restrictions on
\nthe transfer of Property subject to a Permitted Lien permitted under Section
\n9.07, (iii) customary restrictions on subletting or assignment of any lease<\/p>\n
-92-<\/p>\n
governing a leasehold interest of any Company, (iv) restrictions on the transfer
\nof any Property subject to a Disposition permitted under this Agreement and (v)
\ncustomary restrictions contained in any agreement or instrument evidencing or
\ngoverning Indebtedness permitted under Section 9.08(h), which restrictions are
\napplicable solely to the Foreign Subsidiary or Foreign Subsidiaries liable with
\nrespect to such Indebtedness.<\/p>\n
9.20. Additional Obligors. Upon any Company (other than any Excluded
\nSubsidiary or any Foreign Subsidiary) creating or acquiring any Subsidiary after
\nthe Effective Date, such Company shall, within 30 days after such creation or
\nacquisition, (i) cause each such Subsidiary that is a Wholly Owned Subsidiary
\n(other than any Excluded Subsidiary or any Foreign Subsidiary) to execute and
\ndeliver all such agreements, guarantees, documents and certificates (including a
\nJoinder Agreement and any amendments to the Credit Documents) as Administrative
\nAgent or the Majority Lenders may reasonably request and do such other acts and
\nthings as Administrative Agent or the Majority Lenders may reasonably request in
\norder to have such Subsidiary become a Guarantor, (ii) promptly, (I) execute and
\ndeliver to Administrative Agent such amendments to the Security Documents as
\nAdministrative Agent deems necessary or advisable in order to grant to
\nAdministrative Agent, for the benefit of the Creditors, a perfected first
\npriority security interest in the Equity Interests and debt securities of such
\nnew Subsidiary which are owned by any Company (other than any Excluded
\nSubsidiary or any Foreign Subsidiary) and required to be pledged pursuant to the
\nSecurity Agreement (it being understood that no Company shall be required to
\npledge the voting Equity Interests of any Foreign Subsidiary other than the
\nvoting Equity Interests of a “first tier” Foreign Subsidiary which do not
\ncomprise more than 65% of the voting Equity Interests of such Foreign
\nSubsidiary), (II) deliver to Administrative Agent the certificates, if any,
\nrepresenting such Equity Interests and debt securities, (A) in the case of such
\nEquity Interests, together with undated stock powers endorsed in blank, and (B)
\nin the case of such debt securities, endorsed in blank or together with
\ninstruments of transfer or assignment in blank, in each case executed and
\ndelivered by a Responsible Officer of Borrower or such Subsidiary, as the case
\nmay be, (III) cause such new Subsidiary (other than any Excluded Subsidiary or
\nany Foreign Subsidiary) to take such actions necessary or advisable (including
\nexecuting and delivering a Joinder Agreement) to grant to Administrative Agent
\nfor the benefit of the Creditors a perfected first priority security interest in
\nthe collateral described in the Security Agreement with respect to such new
\nSubsidiary, including the filing of Uniform Commercial Code financing statements
\nin such jurisdictions as may be required by the Security Agreement or by law or
\nas may be reasonably requested by Administrative Agent, and (IV) deliver to
\nAdministrative Agent all legal opinions reasonably requested relating to the
\nmatters described above, which opinions shall be in form and substance, and from
\ncounsel, reasonably satisfactory to Administrative Agent.<\/p>\n
9.21. Customer Rental Agreements. The Companies agree to use all
\ncommercially reasonable efforts to ensure that each rental and\/or lease
\nagreement used in connection with the lease or rent of the Rental Assets to
\ntheir customers contains provisions permitting the Companies to assign their
\nrights and obligations thereunder to Administrative Agent on behalf of the
\nCreditors and does not contain provisions that allow such customers to terminate
\ntheir obligations thereunder upon any actual or threatened insolvency of any
\nCompany.<\/p>\n
Section 10. Events of Default. If one or more of the following events
\n(herein called “Events of Default”) shall occur and be continuing:<\/p>\n
-93-<\/p>\n
(a) (i) Borrower shall default in the payment when due (whether at
\n stated maturity upon prepayment or repayment or acceleration or otherwise)
\n of any principal of any Loan or Reimbursement Obligation, or (ii) Borrower
\n shall default in the payment when due of interest on any Loan or any
\n Reimbursement Obligation or any fee or any other amount payable by it
\n hereunder or under any other Credit Document when due and such default
\n under this clause (ii) shall have continued unremedied for three or more
\n Business Days; or<\/p>\n
(b) (i) Any Company shall default in the payment when due of any
\n principal of or interest on any of its Indebtedness (other than the Loans)
\n aggregating $7,500,000 or more, beyond the period of grace, if any,
\n provided in the instrument or agreement under which such Indebtedness was
\n created, after giving effect to any consents or waivers relating thereto
\n obtained before the expiration of any such period of grace; or (ii) any
\n Company fails to perform or observe any other term, condition or covenant,
\n or any other event shall occur or condition exist under any note,
\n agreement, indenture or other document evidencing or relating to any
\n Indebtedness aggregating $7,500,000 or more if the effect of such event
\n (after giving effect to any consents or waivers relating thereto) is to
\n cause, or to permit the holder or holders of such Indebtedness (or a
\n trustee or agent on behalf of such holder or holders) to cause (without
\n further notice or passage of time), such Indebtedness to become due, or to
\n be prepaid in full (whether by redemption, purchase, offer to purchase or
\n otherwise), prior to its stated maturity, provided, however, that this
\n subsection (ii) shall not apply to secured Indebtedness that becomes due as
\n a result of the voluntary sale or transfer of the property or assets
\n securing such Indebtedness; or<\/p>\n
(c) Any representation or warranty made or deemed made in any Credit
\n Document (or in any modification or supplement thereto) by any Company or
\n in any certificate furnished to any Creditor pursuant to the provisions
\n thereof, shall prove to have been incorrect, false or misleading in any
\n material respect as of the time made, deemed made or furnished; or<\/p>\n
(d) Any Obligor shall default in the performance of any of its
\n obligations under any of Sections 9.01(f), 9.05 through 9.11, 9.15 or 9.17
\n through 9.20; or any Obligor shall default in the performance of any of its
\n other obligations in this Agreement, the Security Documents or the L\/C
\n Documents and such default shall continue unremedied for a period of at
\n least thirty days after written notice thereof to such Obligor and Borrower
\n by Administrative Agent or the Majority Lenders; or<\/p>\n
(e) Any Company (other than an Excluded Subsidiary) shall not, or
\n shall admit in writing its inability to, or be generally unable to, pay its
\n debts as such debts become due; or<\/p>\n
(f) Any Company (other than an Excluded Subsidiary) shall (i) apply
\n for or consent to the appointment of, or the taking of possession by, a
\n receiver, custodian, trustee or liquidator of itself or of all or a
\n substantial part of its Property, (ii) make a general assignment for the
\n benefit of its creditors, (iii) commence or consent to any Insolvency
\n Proceeding with respect to itself, (iv) file a petition seeking to take
\n advantage of any other law relating to bankruptcy, insolvency,
\n reorganization, winding-up, or composition or readjustment of debts, (v)
\n fail to controvert within 60 days, or acquiesce in writing to, any petition
\n filed against it in an invol-<\/p>\n
-94-<\/p>\n
untary Insolvency Proceeding, or (vi) take any corporate action for the
\n purpose of effecting any of the foregoing; or<\/p>\n
(g) Any Insolvency Proceeding is commenced or filed against any
\n Company (other than an Excluded Subsidiary) and either (1) such proceeding
\n or petition shall not be dismissed, within 60 days after commencement,
\n filing or levy or (2) such proceeding shall not be actively contested by
\n such Company; (ii) any Company (other than an Excluded Subsidiary) admits
\n the material allegations of a petition against it in any Insolvency
\n Proceeding, or an order for relief (or similar order under non-U.S. law) is
\n ordered in any Insolvency Proceeding; or (iii) any Company (other than an
\n Excluded Subsidiary) acquiesces in the appointment of a receiver, receiver
\n and manager, trustee, custodian, conservator, liquidator, mortgagee in
\n possession (or agent therefor), or other similar person for itself or a
\n substantial portion of its Property or business; or<\/p>\n
(h) A final judgment or judgments for the payment of money in excess
\n of $7,500,000 in the aggregate (exclusive of judgment amounts to the extent
\n covered by insurance) shall be rendered by one or more courts,
\n administrative tribunals or other bodies having jurisdiction against any
\n Company (other than an Excluded Subsidiary) and the same shall not be
\n discharged (or provision which results in a stay of execution shall not be
\n made for such discharge), vacated or bonded pending appeal, or a stay of
\n execution thereof shall not be procured, within 60 days from the date of
\n entry thereof and such Company shall not, within said period of 60 days, or
\n such longer period during which execution of the same shall have been
\n stayed, appeal therefrom and cause the execution thereof to be stayed
\n during such appeal; or<\/p>\n
(i) An ERISA Event or noncompliance with respect to Foreign Plans
\n shall have occurred that, when taken together with all other ERISA Events
\n and noncompliance with respect to Foreign Plans that have occurred, is
\n reasonably likely to result in liability of any Company in an aggregate
\n amount exceeding $7,500,000; or<\/p>\n
(j) Any Change of Control shall occur; or<\/p>\n
(k) Any Security Document after delivery thereof by any Obligor at any
\n time shall cease to be in full force and effect, or cease to give
\n Administrative Agent the Liens, rights, powers and privileges purported to
\n be created thereby with respect to a material portion of the Collateral, in
\n favor of Administrative Agent on behalf of the Creditors, superior to and
\n prior to the rights of all third Persons except as expressly permitted by
\n the applicable Security Document or any Company fails to comply with or to
\n perform any material obligation or agreement under any Security Document
\n within ten days after being requested by Administrative Agent or any
\n Lender; or<\/p>\n
(l) Any Guarantee ceases to be in full force and effect (other than in
\n connection with the release thereof authorized by Section 9.06) or any of
\n the Guarantors repudiates, or attempts to repudiate, any of its obligation
\n under any of the Guarantees; or<\/p>\n
(m) Any Credit Document or any material provision thereof shall at any
\n time and for any reason be declared by a court of competent jurisdiction to
\n be null and void, or a Proceed-<\/p>\n
-95-<\/p>\n
ing shall be commenced by any Company seeking to establish the invalidity
\n or unenforceability thereof (exclusive of questions of interpretation of
\n any provision thereof), or any Qualified Company shall repudiate or deny in
\n writing that it has any liability or obligation for the payment of
\n principal or interest or other obligations purported to be created under
\n any Credit Document; or<\/p>\n
(n) Any non-monetary judgment, order or decree is entered against any
\n Company which has a Material Adverse Effect, and there shall be any period
\n of 60 consecutive days during which a stay of enforcement of such judgment
\n or order, by reason of a pending appeal or otherwise, shall not be in
\n effect;<\/p>\n
THEREUPON: (1) in the case of an Event of Default other than one referred to in
\nclause (f) or (g) of this Section 10 with respect to the Borrower,
\nAdministrative Agent may, and upon written direction of the Majority Lenders
\nshall, by notice to Borrower, terminate the Commitments and\/or declare the
\nprincipal amount then outstanding of, and the accrued interest on, the Loans,
\nthe Reimbursement Obligations and all other amounts payable by Borrower
\nhereunder and under the Notes (including any amounts payable under Section 5.05
\nor 5.06) to be forthwith due and payable, whereupon such amounts shall be
\nimmediately due and payable without presentment, demand, protest or other
\nformalities of any kind, all of which are hereby expressly waived by Borrower,
\nreduce any claim to judgment, take any other action permitted by law and\/or take
\nany action permitted to be taken by the Security Documents during the existence
\nof an Event of Default; and (2) in the case of the occurrence of an Event of
\nDefault referred to in clause (f) or (g) of this Section 10 with respect to the
\nBorrower, the Commitments shall automatically be terminated and the principal
\namount then outstanding of, and the accrued interest on, the Loans, the
\nReimbursement Obligations and all other amounts payable by Borrower hereunder
\nand under the Notes (including any amounts payable under Section 5.05 or 5.06)
\nshall automatically become immediately due and payable without presentment,
\ndemand, protest or other formalities of any kind, all of which are hereby
\nexpressly waived by each Obligor.<\/p>\n
In addition, Borrower agrees, that upon the occurrence and during the
\ncontinuance of any Event of Default it shall, if requested by Administrative
\nAgent or the Majority Revolving Lenders through Administrative Agent (and, in
\nthe case of any Event of Default referred to in clause (e), (f) or (g) of this
\nSection 10 with respect to the Borrower, forthwith, without any demand or the
\ntaking of any other action by Administrative Agent or such Lenders) provide
\ncover for the L\/C Liabilities by paying to Administrative Agent immediately
\navailable funds in an amount equal to the then aggregate undrawn available
\namount of all Letters of Credit, which funds shall be held by Administrative
\nAgent in the Designated Deposit Account as collateral security in the first
\ninstance for the L\/C Liabilities and be subject to withdrawal only as provided
\nin the Security Agreement.<\/p>\n
Section 11. Agents.<\/p>\n
11.01. General Provisions. Each of the Lenders, Agents and L\/C Lenders
\nhereby irrevocably appoints Administrative Agent as its agent and authorizes
\nAdministrative Agent to take such actions on its behalf and to exercise such
\npowers as are delegated to Administrative Agent by the terms hereof and of the
\nSecurity Documents, together with such actions and powers as are reasonably
\nincidental thereto. Administrative Agent agrees to give promptly to each Lender
\na copy of each notice<\/p>\n
-96-<\/p>\n
or other document received by it pursuant to any Credit Document (other than any
\nthat are required to be delivered to the Lenders by any Obligor).<\/p>\n
Each Lender or other financial institution serving as an Agent hereunder
\nshall have the same rights and powers in its capacity as a Lender as any other
\nLender and may exercise the same as though it were not such Agent, and such
\nLender or other financial institution and its Affiliates may accept deposits
\nfrom, lend money to and generally engage in any kind of business with any
\nCompany or Affiliate thereof as if it were not such Agent hereunder.<\/p>\n
Notwithstanding any provision to the contrary elsewhere in this Agreement,
\n(A) the Lead Arranger and the Syndication Agent shall not have any duties or
\nobligations, except as expressly set forth herein, or any fiduciary relationship
\nwith any Lender and no implied covenants, functions, responsibilities, duties,
\nobligations or liabilities shall be read into this Agreement or any of the
\nTransaction Documents or otherwise exist against the Lead Arranger or
\nSyndication Agent, (B) Administrative Agent shall not have any duties or
\nobligations, except those expressly set forth herein, or any fiduciary
\nrelationship with any Lender, and no implied covenants, functions,
\nresponsibilities, duties, obligations or liabilities shall be read into this
\nAgreement or any of the Transaction Documents or otherwise exist against
\nAdministrative Agent and (C) the Documentation Agent shall not have any duties
\nor obligations to, or any fiduciary relationship with, any Lender and no implied
\ncovenants, functions, responsibilities, duties, obligations or liabilities shall
\nbe read into this Agreement or any of the Transaction Documents or otherwise
\nexist against the Documentation Agent. Without limiting the generality of the
\nforegoing, (a) no Agent shall be subject to any fiduciary or other implied
\nduties, regardless of whether a Default has occurred and is continuing, (b) no
\nAgent shall have any duty to take any discretionary action or exercise any
\ndiscretionary powers, except discretionary rights and powers expressly
\ncontemplated hereby that such Agent is required to exercise in writing by the
\nMajority Lenders (or such other number or percentage of the Lenders as shall be
\nrequired by Section 12.04), and (c) except as expressly set forth herein, no
\nAgent shall have any duty to disclose, and shall not be liable for the failure
\nto disclose, any information relating to any Company that is communicated to or
\nobtained by the financial institution serving as such Agent or any of its
\nAffiliates in any capacity. No Agent shall be liable for any action taken or not
\ntaken by it with the consent or at the request of the Majority Lenders (or such
\nother number or percentage of the Lenders as shall be required by Section 12.04)
\nor in the absence of its own gross negligence or willful misconduct. No Agent
\nshall be deemed to have knowledge of any Default unless and until written notice
\nthereof is given to Administrative Agent and such Agent by Borrower or a Lender,
\nand no Agent shall be responsible for or have any duty to ascertain or inquire
\ninto (i) any statement, warranty or representation made in or in connection with
\nany Credit Document, (ii) the contents of any certificate, report or other
\ndocument delivered hereunder or under any other Credit Document or in connection
\nherewith, (iii) the performance or observance of any of the covenants,
\nagreements or other terms or conditions set forth herein, (iv) the validity,
\nenforceability, effectiveness or genuineness of any Credit Document or any other
\nagreement, instrument or document, (v) the satisfaction of any condition set
\nforth in Section 7 or elsewhere herein, other than (A) to confirm receipt of
\nitems expressly required to be delivered to such Agent or (B) to make a
\ndetermination that any condition precedent set forth in Section 7 that is to be
\nto such Agent’s satisfaction is satisfied.<\/p>\n
Each Agent shall be entitled to rely upon, and shall not incur any
\nliability for relying upon, any notice, request, certificate, consent,
\nstatement, instrument, document or other writing be-<\/p>\n
-97-<\/p>\n
lieved by it to be genuine and to have been signed or sent by the proper Person.
\nEach Agent also may rely upon any statement made to it orally or by telephone
\nand believed by it to be made by the proper Person, and shall not incur any
\nliability for relying thereon. Each Agent may consult with legal counsel (who
\nmay be counsel for Borrower), independent accountants and other experts selected
\nby it, and shall not be liable for any action taken or not taken by it in
\naccordance with the advice of any such counsel, accountants or experts. Each
\nAgent may deem and treat the Person in whose name any Note is registered on the
\nRegister as the owner thereof for all purposes. Each Agent shall be fully
\njustified in failing or refusing to take any action under any Credit Document
\nunless it shall first receive such advice or concurrence of the Majority Lenders
\n(or, if so specified by this Agreement, all Lenders or such other number or
\npercentage of the Lenders as shall be required by Section 12.04) as it deems
\nappropriate or it shall first be indemnified to its satisfaction by the Lenders
\nagainst any and all liability and expense which may be incurred by it by reason
\nof taking or continuing to take any such action (it being understood that this
\nprovision shall not release Administrative Agent from performing any action with
\nrespect to Borrower expressly required to be performed by it pursuant to the
\nterms hereof) under this Agreement. Each Agent shall in all cases be fully
\nprotected in acting, or in refraining from acting, under any Credit Document in
\naccordance with a request of the Majority Lenders (or, if so specified by this
\nAgreement, all Lenders), and such request and any action taken or failure to act
\npursuant thereto shall be binding upon all the Lenders and all future holders of
\nthe Loans.<\/p>\n
Each Agent may perform any and all of its duties and exercise its rights
\nand powers by or through any one or more sub-agents appointed by such Agent.
\nEach Agent and any such sub-agent may perform any and all of its duties and
\nexercise its rights and powers through their respective Affiliates, directors,
\nofficers, employees, agents and advisors (“Related Parties”). The exculpatory
\nprovisions of the preceding paragraphs shall apply to any such sub-agent and to
\nthe Related Parties of each Agent and any such sub-agent, and shall apply to
\ntheir respective activities in connection with the syndication of the credit
\nfacilities provided for herein as well as activities of such Agent.<\/p>\n
Subject to the appointment and acceptance of a successor Agent as provided
\nin this paragraph, any Agent may resign at any time by notifying the Lenders,
\nthe L\/C Lenders (with respect to Administrative Agent only) and Borrower. Upon
\nany such resignation, the Majority Lenders shall have the right to appoint a
\nsuccessor which, so long as no Event of Default is continuing, shall be
\nreasonably acceptable to Borrower. If no successor shall have been so appointed
\nby the Majority Lenders and shall have accepted such appointment within 30 days
\nafter the retiring Agent gives notice of its resignation, then the retiring
\nAgent may, on behalf of the Lenders and the L\/C Lenders, appoint a successor
\nAgent which shall be a Lender, an Affiliate of a Lender or a bank with an office
\nin New York, New York, or an Affiliate of any such bank which, so long as no
\nEvent of Default is continuing, shall be reasonably acceptable to Borrower. Upon
\nthe acceptance of its appointment as Agent hereunder by a successor, such
\nsuccessor shall succeed to and become vested with all the rights, powers,
\nprivileges and duties of the retiring Agent, and the retiring Agent shall be
\ndischarged from its duties and obligations hereunder. The fees payable by
\nBorrower to a successor Agent shall be the same as those payable to its
\npredecessor unless otherwise agreed between Borrower and such successor. After
\nan Agent’s resignation hereunder, the provisions of this Section 11 shall
\ncontinue in effect for the benefit of such retiring Agent, its sub-agents and
\ntheir respective Related Parties in respect of any actions taken or omitted to
\nbe taken by any of them while it was acting as such Agent.<\/p>\n
-98-<\/p>\n
Each Lender acknowledges that it has, independently and without reliance
\nupon any Agent or any other Lender and based on such documents and information
\nas it has deemed appropriate, made its own credit analysis and decision to enter
\ninto this Agreement. Each Lender also acknowledges that it will, independently
\nand without reliance upon any Agent or any other Lender and based on such
\ndocuments and information as it shall from time to time deem appropriate,
\ncontinue to make its own decisions in taking or not taking action under or based
\nupon this Agreement, any related agreement or any document furnished hereunder
\nor thereunder. No Agent shall be deemed a trustee or other fiduciary on behalf
\nof any party.<\/p>\n
11.02. Indemnification. Each Lender agrees to indemnify and hold harmless
\neach Agent (to the extent not reimbursed under Section 12.03, but without
\nlimiting the obligations of any Obligor under Section 12.03), ratably in
\naccordance with the aggregate principal amount of the respective Commitments of
\nand\/or Loans and Reimbursement Obligations held by the Lenders (or, if all of
\nthe Commitments shall have been terminated or expired, ratably in accordance
\nwith the aggregate outstanding amount of the Loans and Reimbursement Obligations
\nheld by the Lenders), for any and all liabilities (including pursuant to any
\nEnvironmental Law), obligations, losses, damages, penalties, actions, judgments,
\ndeficiencies, suits, costs, expenses (including reasonable attorney’s fees) or
\ndisbursements of any kind and nature whatsoever that may be imposed on, incurred
\nby or asserted against such Agent (including by any Lender) arising out of or by
\nreason of any investigation in or in any way relating to or arising out of any
\nCredit Document or any other documents contemplated by or referred to therein
\nfor any action taken or omitted to be taken by such Agent under or in respect of
\nany of the Credit Documents or other such documents or the transactions
\ncontemplated thereby (including the costs and expenses that the Obligors are
\nobligated to pay under Section 12.03, but excluding, unless an Event of Default
\nhas occurred and is continuing, normal administrative costs and expenses
\nincident to the performance of its agency duties hereunder) or the enforcement
\nof any of the terms hereof or thereof or of any such other documents; provided,
\nhowever, that no Lender shall be liable for any of the foregoing to the extent
\nresulting from the gross negligence, bad faith or willful misconduct of the
\nparty to be indemnified. The agreements set forth in this Section 11.02 shall
\nsurvive the payment of all Loans and other obligations hereunder and shall be in
\naddition to and not in lieu of any other indemnification agreements contained in
\nany other Credit Document.<\/p>\n
11.03. Consents Under Other Credit Documents. Except as otherwise provided
\nin the Credit Documents, Administrative Agent may, with the prior consent of the
\nMajority Lenders (but not otherwise), consent to any modification, supplement or
\nwaiver under any of the other Credit Documents.<\/p>\n
Section 12. Miscellaneous.<\/p>\n
12.01. Waiver. No failure on the part of any Creditor to exercise and no
\ndelay in exercising, and no course of dealing with respect to, any right, power
\nor privilege under any Credit Document shall operate as a waiver thereof, nor
\nshall any single or partial exercise of any right, power or privilege under any
\nCredit Document preclude any other or further exercise thereof or the exercise
\nof any other right, power or privilege. The remedies provided herein are
\ncumulative and not exclusive of any remedies provided by law.<\/p>\n
-99-<\/p>\n
12.02. Notices. All notices, requests and other communications provided for
\nherein and under the Security Documents (including any modifications of, or
\nwaivers, requests or consents under, this Agreement) shall, except to the extent
\notherwise expressly provided herein or therein, be given or made in writing
\n(including by facsimile) delivered to the intended recipient at the “Address for
\nNotices” specified below its name on the signature pages hereof (or with respect
\nto any Guarantor, as so specified for Borrower) or, as to any party, at such
\nother address as shall be designated by such party in a notice to each other
\nparty. Except as otherwise provided in this Agreement, all such communications
\nshall be deemed to have been duly given when transmitted by facsimile or
\npersonally delivered or, in the case of a mailed notice, upon receipt, in each
\ncase given or addressed as aforesaid. Any Notice of Borrowing or Notice of
\nContinuation\/Conversion shall be deemed to have been received when actually
\nreceived.<\/p>\n
12.03. Expenses, Indemnification, Etc. (a) Borrower agrees, subject to
\nSection 7 of the Commitment Letter, to pay or reimburse:<\/p>\n
(i) subject to the limitations contained in the Commitment Letter,
\n Agents for all of their reasonable out-of-pocket costs and expenses
\n (including the reasonable fees and expenses of Cahill Gordon & Reindel or
\n single other counsel to Agents selected by Agents in place of Cahill Gordon
\n & Reindel (and all local counsel reasonably deemed necessary by Agents)) in
\n connection with (1) the negotiation, preparation, execution and delivery of
\n the Credit Documents and the extension of credit hereunder, (2) the
\n negotiation or preparation of any modification, supplement or waiver of any
\n of the terms of any Credit Document (whether or not consummated or
\n effective) and (3) the syndication of the Loans and Commitments;<\/p>\n
(ii) each Creditor for all reasonable out-of-pocket costs and expenses
\n of such Creditor (including the reasonable fees and expenses of external
\n legal counsel) in connection with (1) any enforcement or collection
\n proceedings resulting from any Event of Default, including all manner of
\n participation in or other involvement with (x) bankruptcy, insolvency,
\n receivership, foreclosure, winding up or liquidation proceedings, (y)
\n judicial or regulatory proceedings and (z) workout, restructuring or other
\n similar negotiations or proceedings (whether or not the workout,
\n restructuring or similar transaction contemplated thereby is consummated),
\n (2) the enforcement of this Section 12.03 and (3) any documentary taxes;
\n and<\/p>\n
(iii) Administrative Agent for all reasonable costs, expenses, taxes,
\n assessments and other charges (including reasonable fees and disbursements
\n of counsel) incurred in connection with (1) any filing, registration,
\n recording or perfection of any security interest contemplated by any Credit
\n Document or any other document referred to therein or (2) the custody or
\n preservation of, or the sale of, collection from, or other realization
\n upon, any of the Collateral.<\/p>\n
(b) Borrower hereby agrees to indemnify each Creditor and its respective
\nAffiliates, directors, trustees, officers, employees and agents (each, an
\n“Indemnitee”) from, and hold each of them harmless against any and all Losses
\nincurred by any of them (including any and all Losses incurred by any Agent or
\nL\/C Lender to any Lender, whether or not any Creditor is a party thereto)
\ndirectly or indirectly arising out of or by reason of or relating to any
\nProceeding arising out of or relating to the negotiation, execution, delivery,
\nperformance, administration or enforcement of any Credit Document, any of the
\ntransactions contemplated by the Credit Documents (including the Transac-<\/p>\n
-100-<\/p>\n
tions), any breach by any Company of any representation, warranty, covenant or
\nother agreement contained in any Credit Document in connection with any of the
\nTransactions, the use or proposed use of any of the Loans or Letters of Credit,
\nthe issuance of or performance under any Letter of Credit or the use of any
\ncollateral security for the Loans (including the exercise by any Creditor of the
\nrights and remedies or any power of attorney with respect thereto and any action
\nor inaction in respect thereof), including all amounts payable by any Lender
\npursuant to Section 11.02, but excluding any such Losses to the extent finally
\ndetermined by a court of competent jurisdiction to have arisen from the gross
\nnegligence, bad faith or willful misconduct of the Indemnitee.<\/p>\n
Without limiting the generality of the foregoing, Borrower, will indemnify
\neach Creditor and each other Indemnitee from, and hold each Creditor and each
\nother Indemnitee harmless against, any Losses described in the preceding
\nsentence arising under any Environmental Law as a result of (A) the past,
\npresent or future operations of any Company (or any predecessor in interest to
\nany Company), (B) the past, present or future condition of any site or facility
\nowned, operated, leased or used at any time by any Company (or any such
\npredecessor in interest), or (C) any Release or threatened Release of any
\nHazardous Materials at, on, under or from any such site or facility, excluding
\nany such Release or threatened Release that shall occur during any period when
\nany Creditor shall be in possession of any such site or facility following the
\nexercise by such Creditor of any of its rights and remedies hereunder or under
\nany of the Security Documents; provided, however, that the indemnity hereunder
\nshall be subject to the exclusions from indemnification set forth in the
\npreceding sentence.<\/p>\n
To the extent that the undertaking to indemnify and hold harmless set forth
\nin this Section 12.03 or any other provision of any Credit Document providing
\nfor indemnification is unenforceable because it is violative of any law or
\npublic policy or otherwise, Borrower shall contribute the maximum portion that
\nit is permitted to pay and satisfy under applicable law to the payment and
\nsatisfaction of all indemnified liabilities incurred by any of the Persons
\nindemnified hereunder.<\/p>\n
The Obligors agree, to the fullest extent permitted under applicable law,
\nthat no Indemnitee shall have any liability (whether direct or indirect, in
\ncontract or tort or otherwise) for any Losses to any Obligor or any Obligor’s
\nsecurity holders or creditors resulting from, arising out of, in any way related
\nto or by reason of any matter referred to in any indemnification or expense
\nreimbursement provisions set forth in any Credit Document, except to the extent
\nthat any Loss is determined by a court of competent jurisdiction in a final
\nnonappealable judgment to have resulted from the gross negligence, bad faith or
\nwillful misconduct of such Indemnitee.<\/p>\n
The Obligors agree that, without the prior written consent of
\nAdministrative Agent, Syndication Agent and the Majority Lenders which consent
\nshall not be unreasonably withheld, no Obligor will settle, compromise or
\nconsent to the entry of any judgment in any pending or threatened Proceeding in
\nrespect of which indemnification is reasonably likely to be sought under the
\nindemnification provisions of this Section 12.03 (whether or not any Indemnitee
\nis an actual or potential party to such Proceeding), unless such settlement,
\ncompromise or consent includes an unconditional written release of each
\nIndemnitee from all liability arising out of such Proceeding and does not
\ninclude any statement as to an admission of fault, culpability or failure to act
\nby or on behalf of any Indemnitee and does not involve any payment of money or
\nother value by any Indemnitee or any injunctive relief or factual findings or
\nstipulations binding on any Indemnitee.<\/p>\n
-101-<\/p>\n
12.04. Amendments, Etc. (i) No provision of any Credit Document may be
\namended, modified or supplemented except by an instrument in writing signed by
\nthe Obligors party thereto and the Majority Lenders, or by the Obligors party
\nthereto and Administrative Agent acting with the written consent of the Majority
\nLenders, and no provision of any Credit Document may be waived except by an
\ninstrument in writing signed by the Obligors party thereto and the Majority
\nLenders, or by the Obligors party thereto and Administrative Agent acting with
\nthe written consent of the Majority Lenders; provided, however, that:<\/p>\n
(a) no amendment, modification, supplement or waiver shall, unless by
\n an instrument signed by each Lender or by Administrative Agent acting with
\n the written consent of each Lender (or signed by, or with the consent of,
\n each Lender having an Obligation directly affected thereby, in the case of
\n clauses (I), (II) or (III) (it being understood that the consent of no
\n other Lender or Agent is needed in each such case)): (I) extend the
\n scheduled final maturity of any Loan or Note, or extend the expiration date
\n of any Letter of Credit beyond the R\/C Termination Date, or reduce the rate
\n of interest (other than any waiver of any increase in the interest rate
\n applicable to any of the Loans pursuant to clause (b) of Section 3.02) or
\n fees thereon, or extend the time of payment of interest or fees thereon
\n (other than in connection with the extension of any scheduled payment
\n hereunder otherwise permitted hereby), or reduce the principal amount
\n thereof, or make any change to the definition of Applicable Margin or
\n Applicable Revolving Credit Fee Percentage (or Schedule 1.01(a), (b) or
\n (c)) if the effect thereof would be to reduce the rate of interest or any
\n fee applicable to any Loan or Commitment from that previously in effect (it
\n being understood that any increase in the rate of interest or fee
\n applicable to any Loan or Commitment only requires the consent of the
\n Majority Lenders), or reduce the Reimbursement Obligation in respect of any
\n Letter of Credit, (II) extend the final maturity of any of the Commitments
\n or amend Section 2.04(a), (III) change the currency in which any Obligation
\n is payable, (IV) amend the terms of this Section 12.04, the exception
\n contained in the first sentence of Section 12.05(a), Section 4.02, 4.07 or
\n 11.03, (V) reduce the percentages specified in the definition of the term
\n “Majority Lenders” or amend any provision of any Credit Document requiring
\n the consent of all the Lenders or reduce any other percentage of the
\n Lenders required to make any determinations or waive any rights hereunder
\n or to modify any provision hereof (it being understood, however, that only
\n the consent of the Lenders included in such percentage need be obtained),
\n (VI) release any Guarantors whose aggregate assets as of the last day of
\n the most recent fiscal period for which financial statements shall have
\n been delivered shall exceed 5% of the consolidated assets of the Companies
\n as of such date or whose aggregate revenue for the period of four fiscal
\n quarters ending on such day shall exceed 5% of the consolidated revenue of
\n the Companies for such period from its obligations under Section 6 (unless
\n permitted by this Agreement), (VII) consent to the assignment or transfer
\n by any Obligor of any of its rights and obligations under any Credit
\n Document (except that in a transaction permitted by Section 9.06 resulting
\n in any Obligor (except Borrower) assigning its rights and obligations under
\n the Credit Documents to any other Obligor no consent of any Lender or Agent
\n need be obtained), (VIII) release all or substantially all of the
\n Collateral or terminate the Lien under any Credit Document in respect of
\n all or substantially all of the Collateral (except as permitted by the
\n Credit Documents) or (IX) increase the advance rates set forth in the
\n definition of Borrowing Base above those in effect on the Effective Date;<\/p>\n
-102-<\/p>\n
(b) no such amendment or waiver shall increase the Commitments of any
\n Lender over the amount thereof then in effect without the consent of such
\n Lender (it being understood that amendments or waivers of conditions
\n precedent, covenants or Defaults shall not constitute an increase of the
\n Commitment of any Lender);<\/p>\n
(c) any modification or supplement of or waiver with respect to
\n Section 11 which affects any Agent in its capacity as such shall require
\n the consent of such Agent;<\/p>\n
(d) no consent of any Lender need be obtained, and Administrative
\n Agent is hereby authorized, to release any Lien securing the Obligations on
\n Property which is the subject of any disposition permitted by the Credit
\n Documents and to release any Guarantee of a Subsidiary upon the sale of all
\n of the Equity Interests of such Subsidiary in accordance with the Credit
\n Documents;<\/p>\n
(e) subject to clause (a)(I) of this proviso to this Section 12.04(i),
\n the consent of Lenders holding not less than a majority of the then
\n outstanding Loans under the Term B Facility (but no other Lender or Agent)
\n shall be required with respect to any extension of any scheduled
\n Amortization Payment or any reduction in the amount of any scheduled
\n Amortization Payment;<\/p>\n
(f) no modification, supplement or waiver shall alter the provisions
\n of the first paragraph of Section 2.10(b) in a manner that would reduce the
\n proportion of any prepayment under Section 2.10(a) to be allocated to any
\n Tranche or the order of application between the Tranches or the order of
\n application to Loans within a Tranche, in each case without the consent of
\n the Requisite Tranche Lenders of the Tranche proposed to be allocated a
\n lesser prepayment or to have its order of priority changed or have the
\n order of application within such Tranche changed as a result thereof (it
\n being understood that the increase of any Tranche or the addition of a new
\n tranche of credit that is afforded substantially the same rights under
\n Section 2.10(b) as the Tranches of the same type are then treated under
\n Section 2.10(b) shall only require the consent of the Majority Lenders);<\/p>\n
(g) no reduction of the percentage specified in the definition of
\n “Majority Revolving Lenders” shall be made without the consent of each
\n Revolving Lender (it being understood that no consent of any other Lender
\n or Agent is needed);<\/p>\n
(h) no reduction of the percentage specified in any subclause of the
\n definition of “Requisite Tranche Lenders” shall be made without the consent
\n of each Lender of the Tranche contemplated by such subclause (it being
\n understood that no consent of any other Lender or Agent is needed);<\/p>\n
(i) no amendment or waiver shall affect the rights or duties of any
\n L\/C Lender in its capacity as such or alter the obligation of any Revolving
\n Lender pursuant to Section 2.03(e) or 2.03(f) without the consent of such
\n L\/C Lender;<\/p>\n
(j) no consent of any Lender need be obtained to effect any amendment
\n of any Credit Document necessary to comply with Section 9.12 or Section
\n 9.20; and<\/p>\n
-103-<\/p>\n
(k) no amendment or waiver shall make any change to Section 2.01(d) or
\n the definitions of “Swing Loan Commitment,” “R\/C Termination Date” or
\n “Swing Loans” or the “Swing Loan Notes” without the consent of the Swing
\n Loan Lender.<\/p>\n
(ii) If, in connection with any proposed change, waiver, discharge or
\ntermination to any of the provisions of this Agreement as contemplated by
\nSection 12.04(i)(a), the consent of the Majority Lenders is obtained but the
\nconsent of one or more of such other Lenders whose consent is required is not
\nobtained, then Borrower shall have the right to replace one or more of such
\nnon-consenting Lender or Lenders (so long as all non-consenting Lenders are so
\nreplaced) with one or more Replacement Lenders pursuant to Section 2.11 so long
\nas at the time of such replacement each such Replacement Lender consents to the
\nproposed change, waiver, discharge or termination.<\/p>\n
(iii) Notwithstanding anything herein to the contrary, (A) with the consent
\nof the Majority Lenders, other additional commitments and extensions of credit
\npursuant to this Agreement may be included in the determination of the Majority
\nLenders, Majority Revolving Lenders and Requisite Tranche Lenders without notice
\nto or consent of any other Lender or Agent on substantially the same basis as
\nthe Commitments (and related extensions of credit) are included on the Effective
\nDate, and (B) it is agreed and understood that, subject to clause (f) of Section
\n12.04(i), any prepayment required by Section 2.10 may be modified, supplemented
\nor waived by the Majority Lenders.<\/p>\n
(iv) In the case of any waiver, the Obligors, the Lenders and
\nAdministrative Agent shall be restored to their former position and rights
\nhereunder and under the other Transaction Documents, and any Default or Event of
\nDefault waived shall be deemed to be cured and not continuing; but no such
\nwaiver shall extend to any subsequent or other Default or Event of Default, or
\nimpair any right consequent thereon.<\/p>\n
12.05. Successors and Assigns. (a) The provisions of this Agreement shall
\nbe binding upon and inure to the benefit of the parties hereto and the Agents
\nand their respective successors and assigns permitted hereby, except that no
\nObligor may assign or otherwise transfer any of its rights or obligations
\nhereunder without the prior written consent of each Lender (and any attempted
\nassignment or transfer by any Obligor without such consent shall be null and
\nvoid). Nothing in this Agreement, expressed or implied, shall be construed to
\nconfer upon any Person (other than the parties hereto, the Agents their
\nrespective successors and assigns permitted hereby and, to the extent expressly
\ncontemplated hereby, the Affiliates of each of Administrative Agent and the
\nLenders and, to the extent expressly contemplated by Section 12.03(b), the
\nIndemnitees) any legal or equitable right, remedy or claim under or by reason of
\nthis Agreement. It is expressly acknowledged and agreed that each Agent that is
\nnot a party to this Agreement in its capacity as such is a third party
\nbeneficiary hereto to the extent of the rights of such Agent set forth herein.<\/p>\n
(b) Any Lender may, with the written consent of Administrative Agent, the
\nLead Arranger and, unless an Event of Default shall have occurred and be
\ncontinuing, Borrower (which consent (x) shall not be unreasonably withheld or
\ndelayed and (y) shall not be required in the case of an assignment to a Lender
\nor an Affiliate of a Lender or an Approved Fund with respect to a Lender or in
\nconnection with a transfer of all or substantially all of the assets of a
\nLender), assign to one or more Eligible Assignees all or a portion of its rights
\nand obligations under this Agreement (including all or a portion of its
\nCommitment and the Loans at the time owing to it); provided that (i) except in
\nthe case<\/p>\n
-104-<\/p>\n
of an assignment of the entire remaining amount of the assigning Lender’s
\nCommitment and the Loans at the time owing to it or in the case of an assignment
\nto a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
\nLender, the aggregate amount of the Commitment (which for this purpose includes
\nLoans outstanding thereunder) or principal outstanding balance of the Loans of
\nthe assigning Lender subject to each such assignment, and, if such assigning
\nLender shall be assigning less than all of its Commitments and Loans pursuant to
\nsuch assignment, the aggregate amount of the Commitments and principal
\noutstanding balance of Loans retained by such assigning Lender (determined in
\neach case as of the date the Assignment and Acceptance with respect to such
\nassignment is delivered to Administrative Agent) shall not be less than
\n$1,000,000, unless each of Administrative Agent, the Lead Arranger and Borrower
\notherwise consent, (ii) each partial assignment shall be made as an assignment
\nof a proportionate part of all the assigning Lender’s rights and obligations
\nunder this Agreement with respect to the Loan or the Commitment assigned, except
\nthat this clause (ii) shall not prohibit any Lender from assigning all or a
\nportion of its rights and obligations among Term B Facility Loans and Revolving
\nLoans on a non-pro rata basis, and (iii) the parties to each assignment shall
\nexecute and deliver to Administrative Agent and the Lead Arranger an Assignment
\nAgreement in the form of Exhibit K, together (other than in the case of any
\nassignment by Merrill Lynch Capital Corporation, Fleet Capital Corporation or
\nany of their respective Affiliates) with a processing and recordation fee of
\n$2,000 and the Eligible Assignee, if it shall not be a Lender, shall deliver to
\nAdministrative Agent and the Lead Arranger information it may reasonably
\nrequire. Subject to acceptance and recording thereof by Administrative Agent
\npursuant to paragraph (c) of this Section, from and after the effective date
\nspecified in each Assignment Agreement, the Eligible Assignee thereunder shall
\nbe a party hereto and, to the extent of the interest assigned by such Assignment
\nAgreement, have the rights and obligations of a Lender under this Agreement, and
\nthe assigning Lender thereunder shall, to the extent of the interest assigned by
\nsuch Assignment Agreement, be released from its obligations under this Agreement
\n(and, in the case of an Assignment Agreement covering all of the assigning
\nLender’s rights and obligations under this Agreement, such Lender shall cease to
\nbe a party hereto but shall continue to be entitled to the benefits of Section
\n12.06). Any assignment or transfer by a Lender of rights or obligations under
\nthis Agreement that does not comply with this paragraph shall be treated for
\npurposes of this Agreement as a sale by such lender of a participation in such
\nrights and obligations in accordance with paragraph (d) of this Section.<\/p>\n
(c) Administrative Agent, acting solely for this purpose as an agent of
\nBorrower, shall maintain at one of its offices in Glastonbury, Connecticut, a
\ncopy of each Notice of Assignment Agreement delivered to it and a register for
\nthe recordation of the names and addresses of the Lenders, and the Commitments
\nof, and principal amount of the Loans owing to, each Lender pursuant to the
\nterms hereof from time to time (the “Register”). The entries in the Register
\nshall be conclusive, and Borrower, Administrative Agent and the Lenders may
\ntreat each Person whose name is recorded in the Register pursuant to the terms
\nhereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
\nnotice to the contrary. The Register shall be available for inspection by
\nBorrower and any Lender, at any reasonable time and from time to time upon
\nreasonable prior notice.<\/p>\n
(d) Any Lender may, without the consent of, or notice to Borrower or
\nAdministrative Agent, sell participations to one or more banks or other entities
\n(a “Participant”) in all or a portion of such Lender’s rights and\/or obligations
\nunder this Agreement (including all or a portion of its Commitment and\/or the
\nLoans owing to it); provided that (i) such Lender’s obligations under this
\nAgreement shall remain unchanged, (ii) such Lender shall remain solely
\nresponsible to the other parties<\/p>\n
-105-<\/p>\n
hereto for the performance of such obligations and (iii) Borrower,
\nAdministrative Agent and the other Lenders shall continue to deal solely and
\ndirectly with such Lender in connection with such Lender’s rights and
\nobligations under this Agreement. Any agreement or instrument pursuant to which
\na Lender sells such a participation shall provide that such Lender shall retain
\nthe sole right to enforce this Agreement and to approve any amendment,
\nmodification or waiver of any provision of this Agreement; provided that such
\nagreement or instrument may provide that such Lender will not, without the
\nconsent of the Participant, agree to any amendment, modification or waiver
\ndescribed in Section 12.04(i)(a)(I), (II), (III), (VI) or (VIII) that affects
\nsuch Participant. Subject to paragraph (e) of this Section, Borrower agrees that
\neach Participant shall be entitled to the benefits of Section 5.01 to the same
\nextent as if it were a Lender and had acquired its interest by assignment
\npursuant to paragraph (b) of this Section. To the extent permitted by law, each
\nParticipant also shall be entitled to the benefits of Section 4.07 be subject to
\nsuch Section 4.07 as though it were a Lender.<\/p>\n
(e) A Participant shall not be entitled to receive any greater payment
\nunder Section 5.01 or 5.06 than the applicable Lender would have been entitled
\nto receive with respect to the participation sold to such Participant, unless
\nthe sale of the participation to such Participant is made with the Borrower’s
\nprior written consent. A Participant that would be a Foreign Lender if it were a
\nLender shall not be entitled to the benefits of Section 5.06 unless Borrower is
\nnotified of the participation sold to such Participant and such Participant
\nagrees, for the benefit of Borrower, to comply with Section 5.06(b) as though it
\nwere a Lender.<\/p>\n
(f) Any Lender may at any time pledge or assign a security interest in all
\nor any portion of its rights under this Agreement to secure obligations of such
\nLender, including without limitation any pledge or assignment to secure
\nobligations to a Federal Reserve Bank; provided that no such pledge or
\nassignment of a security interest shall release a Lender from any of its
\nobligations hereunder or substitute any such pledgee or assignee for such Lender
\nas a party hereto.<\/p>\n
12.06. Survival. The obligations of the Obligors under Sections 5.01, 5.05,
\n5.06 and 12.03, the obligations of each Guarantor under Section 6.03 (unless
\nsuch Guarantor shall have been released pursuant to Section 9.06 or with the
\nconsent of the Majority Lenders (or, to the extent required pursuant to Section
\n12.04, all of the Lenders)), and the obligations of the Lenders under Sections
\n5.06 and 11.02, shall survive the repayment of the Loans and Reimbursement
\nObligations and the termination of the Commitments and, in the case of any
\nLender that may assign any interest in its Commitments, Loans or L\/C Interest
\nhereunder, shall (to the extent relating to such time as it was a Lender)
\nsurvive the making of such assignment, notwithstanding that such assigning
\nLender may cease to be a “Lender” hereunder. In addition, each representation
\nand warranty made, or deemed to be made by a notice of any extension of credit,
\nherein or pursuant hereto shall be considered to have been relied upon by the
\nother parties hereto and shall survive the execution and delivery of this
\nAgreement and the Notes, if any, and the making of any extension of credit
\nhereunder, regardless of any investigation made by any such other party or on
\nits behalf and notwithstanding that Administrative Agent or any Lender may have
\nhad notice or knowledge of any Default or incorrect representation or warranty.<\/p>\n
12.07. Captions. The table of contents and captions and section headings
\nappearing herein are included solely for convenience of reference and are not
\nintended to affect the interpretation of any provision of this Agreement.<\/p>\n
-106-<\/p>\n
12.08. Counterparts; Interpretation; Effectiveness. This Agreement may be
\nexecuted in counterparts (and by different parties hereto on different
\ncounterparts), each of which shall constitute an original, but all of which when
\ntaken together shall constitute a single contract. This Agreement, the Fee
\nLetter and Administrative Agent’s Fee Letter constitute the entire contract
\namong the parties hereto and thereto relating to the subject matter hereof and
\nsupersede any and all previous agreements and understandings, oral or written,
\nrelating to the subject matter hereof, other than the confidentiality, waiver of
\njury trial and governing law provisions of the Commitment Letter, the provisions
\nof the second paragraph of Section 2 of the Commitment Letter and the
\nlimitations contained in Section 7 of the Commitment Letter, which are not
\nsuperseded. Delivery of an executed counterpart of a signature page of this
\nAgreement by telecopy shall be effective as delivery of a manually executed
\ncounterpart covered in Section 7.01 of this Agreement. Upon the effectiveness of
\nthis Agreement, all commitments to provide any financing pursuant to the
\nCommitment Letter shall automatically and permanently terminate.<\/p>\n
12.09. Governing Law; Submission to Jurisdiction; Waivers; Etc. (a) Each
\nCredit Document shall be governed by, and construed in accordance with, the law
\nof the State of New York (including Sections 5-1401 and 5-1402 of the General
\nObligations Law of the State of New York), without regard to principles of
\nconflicts of laws thereof not contained in such Sections 5-1401 and 5-1402
\n(except in the case of the other Credit Documents, to the extent otherwise
\nexpressly stated therein). Each Obligor hereby irrevocably and unconditionally:
\n(I) submits for itself and its Property in any Proceeding relating to any Credit
\nDocument to which it is a party, or for recognition and enforcement of any
\njudgment in respect thereof, to the non-exclusive general jurisdiction of the
\nSupreme Court of the State of New York sitting in New York County, the courts of
\nthe United States of America for the Southern District of New York, and
\nappellate courts from any thereof; (II) consents that any such Proceeding may be
\nbrought in any such court; (III) agrees that service of process in any such
\nProceeding may be effected by mailing a copy thereof by registered or certified
\nmail (or any substantially similar form of mail), postage prepaid, to Borrower
\nat its address set forth on the signature page hereto or at such other address
\nof which Administrative Agent shall have been notified pursuant thereto; and
\n(IV) agrees that nothing herein shall affect the right to effect service of
\nprocess in any other manner permitted by law or shall limit the right to sue in
\nany other jurisdiction.<\/p>\n
(b) EACH OBLIGOR, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO
\nTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY
\nJURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
\nAGREEMENT OR THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
\nAND FOR ANY COUNTERCLAIM THEREIN.<\/p>\n
12.10. Confidentiality. Each Lender agrees to keep information obtained by
\nit pursuant to the Credit Documents confidential in accordance with such
\nLender’s customary practices and agrees that it will only use such information
\nin connection with the transactions contemplated hereby and not disclose any of
\nsuch information other than (a) to such Lender’s employees, representatives,
\ndirectors, attorneys, auditors, agents, professional advisors, trustees or
\naffiliates who are advised of the confidential nature thereof or to any direct
\nor indirect contractual counterparty in swap agreements or such contractual
\ncounterparty’s professional advisor (so long as such contractual counterparty or
\nprofessional advisor to such contractual counterparty agrees to be bound by the
\nprovision of this Sec-<\/p>\n
-107-<\/p>\n
tion 12.10, such Lender being liable for any breach of confidentiality by any
\nPerson described in this clause (a) and with respect to disclosures to
\nAffiliates to the extent disclosed by such Lender to such Affiliate), (b) to the
\nextent such information presently is or hereafter becomes available to such
\nLender on a non-confidential basis from a Person not an Affiliate of such Lender
\nand not known to such Lender to be violating a confidentiality obligation by
\nsuch disclosure, (c) to the extent disclosure is required by any Law, subpoena
\nor judicial order or process (provided that notice of such requirement or order
\nshall be promptly furnished to Borrower unless such notice is legally
\nprohibited) or requested or required by bank, securities, insurance or
\ninvestment company regulations or auditors or any administrative body or
\ncommission (including the Securities Valuation Office of the NAIC) to whose
\njurisdiction such Lender may be subject, (d) to any rating agency to the extent
\nrequired in connection with any rating to be assigned to such Lender, (e) to
\nassignees or participants or prospective assignees or participants who agree to
\nbe bound by the provisions of this Section 12.10, (f) to the extent required in
\nconnection with any litigation between any Obligor and any Creditor with respect
\nto the Loans or any Credit Document or (g) with Borrower’s prior written
\nconsent.<\/p>\n
12.11. Independence of Representations, Warranties and Covenants. The
\nrepresentations, warranties and covenants contained herein shall be independent
\nof each other and no exception to any representation, warranty or covenant shall
\nbe deemed to be an exception to any other representation, warranty or covenant
\ncontained herein unless expressly provided, nor shall any such exception be
\ndeemed to permit any action or omission that would be in contravention of
\napplicable law.<\/p>\n
12.12. Severability. Wherever possible, each provision of this Agreement
\nshall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement shall be prohibited by or
\ninvalid under applicable law, such provision shall be ineffective only to the
\nextent of such prohibition or invalidity, without invalidating the remainder of
\nsuch provisions or the remaining provisions of this Agreement.<\/p>\n
12.13. No Reliance on Margin Stock. Each Lender and each L\/C Lender
\nrepresents to each Agent and each of the other Lenders and L\/C Lenders that it
\nin good faith is not relying upon any Margin Stock as collateral in the
\nextension or maintenance of the credit provided for in this Agreement.<\/p>\n
[Signature Pages Follow]<\/p>\n
S-1<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed and delivered as of the day and year first above written.<\/p>\n
IMAGISTICS INTERNATIONAL INC.<\/p>\n
By: \/s\/ Joseph D. Skrzypczak
\n ———————————
\n Name: Joseph D. Skrzypczak
\n Title: Chief Financial Officer<\/p>\n
Address for Notices: MSC 17-01
\n 100 Oakview Drive
\n Trumbull, CT 06611-4724<\/p>\n
Contact Person: Mark S. Flynn<\/p>\n
Telecopier No.: (203) 365-2353<\/p>\n
Telephone No.: (203) 365-2352<\/p>\n
S-2<\/p>\n
GUARANTORS<\/p>\n
Each as a Guarantor and Pledgor<\/p>\n
By:
\n ———————————
\n Name:
\n Title:<\/p>\n
S-3<\/p>\n
FLEET CAPITAL CORPORATION,
\n as Administrative Agent and as a Lender<\/p>\n
By: \/s\/ Edgar Ezerins
\n ———————————
\n Name: Edgar Ezerins
\n Title: Vice President<\/p>\n
Address for Notices:<\/p>\n
200 Glastonbury Boulevard
\n Glastonbury, Connecticut 06033<\/p>\n
Attention:<\/p>\n
Telecopier No.:
\n Telephone No.:<\/p>\n
S-4<\/p>\n
LENDERS<\/p>\n
MERRILL LYNCH CAPITAL CORPORATION,
\n as a Lender<\/p>\n
By: \/s\/ Chris Birosak
\n ———————————
\n Name: Chris Birosak
\n Title: Managing Director<\/p>\n
Lending Office for all Loans:<\/p>\n
World Financial Center
\n c\/o Merrill Lynch & Co.
\n North Tower – 7th Floor
\n 250 Vesey Street
\n New York, New York 10281-1307<\/p>\n
Address for Notices:<\/p>\n
World Financial Center
\n c\/o Merrill Lynch & Co.
\n North Tower
\n 250 Vesey Street
\n New York, New York 10281-1316
\n Attention: [ ]<\/p>\n
Telecopier No.: (212) 449-[ ]
\n Telephone No.: (212) 449-[ ]<\/p>\n
S-5<\/p>\n
[NAME],
\n as a Lender<\/p>\n
By:
\n ———————————
\n Name:
\n Title:<\/p>\n
Lending Office for all Loans:<\/p>\n
Attention:<\/p>\n
Telecopier No.:<\/p>\n
Address for Notices:<\/p>\n
Attention:<\/p>\n
Telecopier No.:
\n Telephone No.:<\/p>\n
ANNEX A<\/p>\n
COMMITMENTS<\/p>\n
\n\n Allocation
\n——————————— —————————————————–
\n Revolving Term B Facility
\nInstitution Commitments Commitments Total
\n================================= ============ =============== ============
\n
\nMerrill Lynch Capital Corporation 27,500,000 0 27,500,000
\nFleet Capital Corporation 25,000,000 0 25,000,000
\nThe Chase Manhattan Bank 15,000,000 0 15,000,000
\nU.S. Bank National Association 15,000,000 0 15,000,000
\nThe Industrial Bank of Japan, Ltd. 15,000,000 0 15,000,000
\nIBM Credit Corporation 15,000,000 0 15,000,000
\nPeople’s Bank 7,500,000 0 7,500,000
\nBank Leumi, USA 5,000,000 0 5,000,000
\nPitney Bowes Credit Corp 0 100,000,000 100,000,000
\n Total $125,000,000 $100,000,000 $225,000,000
\n ============ ============ ============
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n SCHEDULE 1.01(a)<\/p>\n
LIBOR Loans ABR Loans
\n ———– ———<\/p>\n
Revolving Loans 2.75% 1.75%<\/p>\n
Term B Facility Loans 3.50% 2.50%<\/p>\n
SCHEDULE 1.01(b)<\/p>\n
——————————————————————
\n Revolving Loans
\n ——————————————————————
\n Tier Total LIBOR ABR
\n Leverage MARGIN MARGIN
\n Ratio
\n ——————————————————————
\n I >1.25:1.0 3.00% 2.00%
\n ——————————————————————
\n II 1.00:1.0 2.75% 1.75%
\n ——————————————————————
\n III 0.75:1.0 2.50% 1.50%
\n ——————————————————————
\n IV 1.25:1.0 3.75% 2.75%
\n ——————————————————————
\n II 0.75:1.0 0.5%<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7545,7831,8530],"corporate_contracts_industries":[9415,9454],"corporate_contracts_types":[9561,9560],"class_list":["post-40971","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_companies-imagistics-international-inc","corporate_contracts_companies-pitney-bowes-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-manufacturing__industrial","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\/40971","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=40971"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40971"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40971"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40971"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}