Credit Agreement - Amazon.com Inc., Deutsche Bank AG, Deutsche Morgan Grenfell Inc., Van Kampen American Capital Prime Rate Income Trust, BankBoston NA and Banque Paribas
Redacted Version
CREDIT AGREEMENT
AMONG
AMAZON.COM, INC.,
DEUTSCHE BANK AG, NEW YORK BRANCH
AS ADMINISTRATIVE AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
DEUTSCHE MORGAN GRENFELL, INC.
DATED AS OF DECEMBER 23, 1997
"[ * ]" = omitted, confidential material, which material has been separately
filed with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
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TABLE OF CONTENTS
CONTENTS
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ARTICLE I DEFINITIONS ............................................................. 1
1.1 Certain Defined Terms .............................................. 1
1.2 Other Interpretive Provisions ...................................... 20
1.3 Accounting Principles .............................................. 21
ARTICLE II THE CREDIT ............................................................. 21
2.1 Amounts and Terms of Commitment .................................... 21
2.2 Loan Accounts ...................................................... 22
2.3 Funding of Loans ................................................... 22
2.4 Conversion and Continuation Elections .............................. 22
2.5 Optional Prepayments ............................................... 24
2.6 Mandatory Prepayments of Loans ..................................... 24
2.7 Repayment .......................................................... 25
2.8 Interest ........................................................... 26
2.9 Fees ............................................................... 26
2.10 Computation of Fees and Interest ................................... 27
2.11 Payments by the Borrower ........................................... 27
2.12 Payments by the Lenders to the Agent ............................... 28
2.13 Sharing of Payments, Etc. .......................................... 28
2.14 Security ........................................................... 29
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ................................ 29
3.1 Taxes .............................................................. 29
3.2 Illegality ......................................................... 30
3.3 Increased Costs and Reduction of Return ............................ 31
3.4 Funding Losses ..................................................... 32
3.5 Inability to Determine Rates ....................................... 33
3.6 Certificates of Lenders ............................................ 33
3.7 Survival ........................................................... 33
ARTICLE IV CONDITIONS PRECEDENT ................................................... 33
4.1 Conditions of Loans ................................................ 33
4.2 Conditions to Continuations/Conversions ............................ 36
ARTICLE V REPRESENTATIONS AND WARRANTIES .......................................... 36
5.1 Corporate Existence and Power ...................................... 36
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5.2 Corporate Authorization; No Contravention .......................... 37
5.3 Governmental Authorization ......................................... 37
5.4 Binding Effect ..................................................... 37
5.5 Litigation ......................................................... 38
5.6 No Default ......................................................... 38
5.7 ERISA Compliance ................................................... 38
5.8 Use of Proceeds; Margin Regulations ................................ 39
5.9 Title to Properties ................................................ 39
5.10 Taxes .............................................................. 39
5.11 Financial Condition ................................................ 40
5.12 Environmental Matters .............................................. 40
5.13 Collateral Documents ............................................... 41
5.14 Regulated Entities ................................................. 42
5.15 No Burdensome Restrictions ......................................... 42
5.16 Copyrights, Patents, Trademarks and Licenses, Etc. ................. 42
5.17 Subsidiaries ....................................................... 42
5.18 Insurance .......................................................... 42
5.19 Solvency ........................................................... 43
5.20 Full Disclosure .................................................... 43
ARTICLE VI AFFIRMATIVE COVENANTS .................................................. 43
6.1 Financial Statements ............................................... 43
6.2 Certificates; Other Information .................................... 44
6.3 Notices ............................................................ 45
6.4 Preservation of Corporate Existence, Etc. .......................... 46
6.5 Maintenance of Property ............................................ 47
6.6 Insurance .......................................................... 47
6.7 Payment of Obligations ............................................. 48
6.8 Compliance with Laws ............................................... 48
6.9 Compliance with ERISA .............................................. 48
6.10 Inspection of Property and Books and Records ....................... 48
6.11 Environmental Laws ................................................. 49
6.12 Use of Proceeds .................................................... 49
6.13 Swap Contracts ..................................................... 50
6.14 Further Assurances ................................................. 50
ARTICLE VII NEGATIVE COVENANTS .................................................... 52
7.1 Limitation on Liens ................................................ 52
7.2 Disposition of Assets .............................................. 54
7.3 Consolidations and Mergers ......................................... 55
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7.4 Loans and Investments .............................................. 55
7.5 Limitation on Indebtedness ......................................... 56
7.6 Transactions with Affiliates ....................................... 57
7.7 Use of Proceeds .................................................... 57
7.8 Contingent Obligations ............................................. 58
7.9 Lease Obligations .................................................. 58
7.10 Restricted Payments ................................................ 59
7.11 ERISA .............................................................. 59
7.12 Change in Business ................................................. 60
7.13 Accounting Changes ................................................. 60
7.14 Financial Covenants ................................................ 60
7.15 Subordinated Debt .................................................. 61
7.16 Non-Material Subsidiaries .......................................... 62
ARTICLE VIII EVENTS OF DEFAULT .................................................... 62
8.1 Event of Default ................................................... 62
8.2 Remedies ........................................................... 66
8.3 Rights Not Exclusive ............................................... 66
8.4 Certain Financial Covenant Defaults ................................ 67
8.5 Non-Material Subsidiaries .......................................... 67
8.6 Acquired Subsidiaries .............................................. 67
ARTICLE IX THE AGENT .............................................................. 67
9.1 Appointment and Authorization ...................................... 67
9.2 Delegation of Duties ............................................... 68
9.3 Liability of Agent ................................................. 68
9.4 Reliance by Agent .................................................. 68
9.5 Notice of Default .................................................. 69
9.6 Credit Decision .................................................... 69
9.7 Indemnification of Agent ........................................... 70
9.8 Agent in Individual Capacity ....................................... 71
9.9 Successor Agent .................................................... 71
9.10 Withholding Tax .................................................... 71
9.11 Collateral Matters ................................................. 73
ARTICLE X MISCELLANEOUS ........................................................... 74
10.1 Amendments and Waivers ............................................. 74
10.2 Notices ............................................................ 75
10.3 No Waiver; Cumulative Remedies ..................................... 76
10.4 Costs and Expenses ................................................. 76
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10.5 Borrower Indemnification ........................................... 77
10.6 Marshalling; Payments Set Aside .................................... 77
10.7 Successors and Assigns ............................................. 78
10.8 Assignments, Participations, Etc. .................................. 78
10.9 Confidentiality .................................................... 80
10.10 Set-off ............................................................ 81
10.11 Automatic Debits of Fees ........................................... 81
10.12 Notification of Addresses, Lending Offices, Etc. ................... 82
10.13 Counterparts ....................................................... 82
10.14 Severability ....................................................... 82
10.15 No Third Parties Benefited ......................................... 82
10.16 Governing Law and Jurisdiction ..................................... 82
10.17 Waiver of Jury Trial ............................................... 83
10.18 Entire Agreement ................................................... 83
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SCHEDULES
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 5.5 Litigation
Schedule 5.7 ERISA
Schedule 5.11 Permitted Liabilities
Schedule 5.12 Environmental Matters
Schedule 5.16 Subsidiaries and Minority Interests
Schedule 5.17 Insurance Matters
Schedule 6.14 Financing Statement Filing Schedule
Schedule 7.1 Permitted Liens
Schedule 7.5 Permitted Indebtedness
Schedule 7.8 Contingent Obligations
Schedule 10.2 LIBOR and Domestic Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Conversion/Continuation
Exhibit B Form of Compliance Certificate
Exhibit C Form of Legal Opinion of Borrower's Counsel
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Promissory Note
Exhibit F Form of Warrant
Exhibit G Form of Consent of Lessors/Warehousemen
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 23, 1997, among
Amazon.com, Inc., a Delaware corporation (the "Borrower"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders"; individually, a "Lender"), and Deutsche Bank AG, New York Branch, as
administrative agent for the Lenders.
WHEREAS, the Lenders have agreed to make available to the Borrower a
secured term loan facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS
The following terms have the following meanings:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the formation or acquisition of all or any portion of
the capital stock, partnership interests, membership interests or equity of any
Person, or otherwise, resulting in a Joint Venture or causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary) provided that the
Borrower or the Subsidiary is the surviving entity.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent" means Deutsche Bank in its capacity as administrative agent for
the Lenders hereunder, and any successor administrative agent arising under
Section 9.9.
"Agent-Related Persons" means Deutsche Bank and any successor agent
arising under Section 9.9, together with their respective Affiliates (including,
in the
<PAGE> 8
case of Deutsche Bank, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on the
signature page hereto in relation to the Agent, or such other address as the
Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Arranger" means Deutsche Morgan Grenfell, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 10.8(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
(a) 0.50% per annum above the latest Federal Funds Rate; and (b)
the rate of interest in effect for such day as publicly announced from
time to time by Deutsche Bank in New York, New York, as its "prime
lending rate." The "prime lending rate" shall mean the rate announced by
Deutsche Bank from time to time as its prime lending rate for secured
commercial loans within the United States (but is not intended to be the
lowest rate of interest charged by Deutsche Bank in connection with
extensions of credit to debtors.)
Any change in the prime rate announced by Deutsche Bank shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type made to the Borrower on the same day by the Lenders under Article II, and,
other than in the case of Base Rate Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close
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and, if the applicable Business Day relates to any LIBOR Rate Loan, means such a
day on which dealings are carried on in the London interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditure Component" shall mean, with respect to the fiscal
years described below, the lower of Limit A and Limit B set forth below:
FISCAL YEAR LIMIT A LIMIT B
[ * ]
in each case, where "Sales" means revenues on a GAAP basis for the relevant
period as reported (or to be reported) on annual financial statements filed with
the SEC or in connection with delivery of financial information under Section
6.1 hereof if such financial statements are no longer filed by the Borrower with
the SEC.
"Cash Equivalents" means (i) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (ii) certificates of deposit,
eurodollar time deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements of any Lender or any other commercial bank whose unsecured
long-term debt obligations are rated at least A-1 by Standard & Poor's Ratings
Service Group, a division of the McGraw Hill Companies, Inc., and any successor
thereto ("S&P") or A3 by Moody's Investors Service, Inc. having maturities of
one year or less from the date of acquisition, and (iii) commercial paper rated
at least A-1 by S&P or P-1 by Moody's Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of investments.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means the occurrence of the following: (a) any
single person or single entity or group of persons acting in concert that is not
a significant shareholder of the Borrower as of the date of closing acquires 20%
or more of the
--------------
[ * ] Confidential Treatment Requested
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issued and outstanding stock of the Borrower and (b) the aggregate percentage of
the issued and outstanding stock of the Borrower owned by Jeffrey Bezos, his
immediate family (which only includes his spouse, his parents, his children, his
siblings and his aunts and uncles) and their heirs which are members of his
immediate family, trusts and other entities established for and controlled by
Jeffrey Bezos and his immediate family and funds controlled by Kleiner Perkins
Caufield & Byers is less than 40% in the aggregate.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by all Lenders (or, in the case of
subsection 4.1(e), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Borrower and its Subsidiaries in
or upon which a Lien now or hereafter exists in favor of the Lenders, or the
Agent on behalf of the Lenders, whether under this Agreement or under any other
documents executed by any such Person and delivered to the Agent or the Lenders.
"Collateral Documents" means, collectively, (i) the Security Agreement,
and all other security agreements, mortgages, deeds of trust, patent and
trademark assignments, lease assignments, guarantees and other similar
agreements between the Borrower or any Subsidiary and the Lenders or the Agents
for the benefit of the Lenders now or hereafter delivered to the Lenders or the
Agent pursuant to or in connection with the transactions contemplated hereby,
and all financing statements (or comparable documents now or hereafter filed in
accordance with the Uniform Commercial Code or comparable law) against the
Borrower or any Subsidiary as debtor in favor of the Lenders or the Agent for
the benefit of the Lenders as secured party, and (ii) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment" means seventy-five million dollars ($75,000,000).
"Commitment Letter" means that certain letter dated as of November 7,
1997, among the Arranger, the Agent and the Borrower.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit B.
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"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations, shall be equal to the maximum
reasonably anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.4, the Borrower (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Debt Consideration" means, with respect to any Acquisition or
Investment, the aggregate amount, without duplication, of all Indebtedness and
Contingent Obligations which would appear on a balance sheet of the Person
subject to such
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Acquisition or Investment immediately after giving effect to such Acquisition or
Investment to the extent such Indebtedness or Contingent Obligation is a
recourse obligation of the Person making such Investment or consummating such
Acquisition.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Deutsche Bank" means Deutsche Bank AG, New York Branch, the New York
Branch of Deutsche Bank AG, a German banking corporation.
"Disposition" means (i) the sale, lease, conveyance or other disposition
of property, other than sales or other dispositions expressly permitted under
subsection 7.2(a) or 7.2(b), and (ii) the sale or transfer by the Borrower or
any Subsidiary of the Borrower of any equity securities issued by any Subsidiary
of the Borrower and held by such transferor Person.
"Dollars," "dollars" and "$" each mean lawful money of the United
States.
"EBITDA" means, with respect to the Borrower and its Subsidiaries for
any applicable period, Net Income for such period, plus, to the extent deducted
in determining Net Income for such period, the aggregate amount of (i) Interest
Expense, (ii) federal, state, local, foreign income and business and occupation
taxes and up to $150,000 of Delaware franchise taxes per fiscal year paid by the
Borrower and (iii) depletion, depreciation and amortization of tangible and
intangible assets (including, without limitation, amortization of unearned
compensation in respect of stock options to the extent reported in accordance
with GAAP in the Borrower's consolidated statements of cash flows).
"Eligible Assignee" means (i) a commercial bank organized under the laws
of the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD; (iii) a Person that is primarily engaged in the business of commercial
banking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of a Person
of which a Lender is a Subsidiary, or (C) a Person of which a Lender is a
Subsidiary; or (iv) a finance company, insurance company, other financial
institution or fund, reasonably acceptable to the Agent, which has a combined
capital and surplus in excess of
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$100,000,000, which is regularly engaged in making, purchasing or investing in
loans of the type proposed to be assigned to such assignee; provided, however,
that no Eligible Assignee shall be an Affiliate or competitor of the Borrower,
or an Affiliate of such competitor.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property used
by the Borrower, whether or not owned by the Borrower.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters; including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, and the Emergency Planning and Community
Right-to-Know Act.
"Equity Consideration" shall mean, in connection with an Acquisition or
Investment, the value (determined as of the date of such Acquisition or
Investment) of all common equity of the Borrower used as consideration in making
such Acquisition or Investment.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and, solely for purposes of provisions herein
relating to Section 412 of the Code, Sections 414(m) and (o) of the Code).
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"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "LIBOR Rate."
"Event of Default" means any of the events or circumstances specified in
Section 8.1.
"Event of Loss" means, with respect to any property, any of the
following: (a) any loss, destruction or damage of such property; (b) any pending
or threatened institution of any proceedings for the condemnation or seizure of
such property or for the exercise of any right of eminent domain; or (c) any
actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such property, or confiscation of such property or the
requisition of the use of such property.
"Exchange Act" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
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"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Materials" means all those substances that are regulated by,
or which may form the basis of liability under, any Environmental Law, including
all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on terms of not more
than 180 days); (c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations with respect to
capital leases; (g) all net obligations with respect to Swap Contracts; (h) all
indebtedness referred to in clauses (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any
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Lien upon or in property (including accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (g) above.
"Indemnified Liabilities" has the meaning specified in Section 10.5.
"Indemnified Person" has the meaning specified in Section 10.5.
"Independent Auditor" has the meaning specified in subsection 6.1(a).
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense (both cash and non-cash and determined without
regard to original issue discount) of the Borrower and its Subsidiaries for such
period, as determined in accordance with GAAP, including, to the extent
allocable to interest expense in accordance with GAAP, (i) all other fees paid
or owed with respect to the issuance or maintenance of Contingent Obligations
(including letters of credit of the Borrower and its Subsidiaries), (ii) net
costs or benefits under Swap Contracts of the Borrower and its Subsidiaries and
(iii) the portion of any payments made in respect of obligations in respect of
capitalized leases of the Borrower and its Subsidiaries allocable to interest
expense.
"Interest Margin" means
(i) with respect to Base Rate Loans, 1.50%; and
(ii) with respect to LIBOR Rate Loans, 3.50%;
provided that in each instance the Interest Margin shall increase by 0.50%
following the sixth month anniversary of the disbursement of Loans hereunder.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the last Business Day of each calendar quarter and each date
such Loan is converted into another Type of Loan; provided, however, that if any
Interest Period
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<PAGE> 17
for a LIBOR Rate Loan exceeds three months, the date that falls three months
after the beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date.
"Interest Period" means, as to any LIBOR Rate Loan, the period
commencing on the Conversion/Continuation Date on which the Loan is converted
into or continued as a LIBOR Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by the Borrower in its Notice of
Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the following
Business Day unless, in the case of a LIBOR Rate Loan, the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means any investment, ownership or similar interest in any
Person, whether by means of share purchase, capital, equity or similar
contribution, including, without limitation, any Acquisition, and "Investment"
shall include any loan or advance (including any Contingent Liability with
respect thereto), time deposit or otherwise (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business and excluding trade receivables owing to the Borrower or its
Subsidiaries in the ordinary course of business and on terms no less favorable
to the Borrower and its Subsidiaries than would be obtained in an arms-length
transaction with Persons which are not Affiliates of the Borrower). The original
amount of any Investment shall be the original principal or capital amount
thereof and shall, if made by the transfer or exchange or property other than
cash, be deemed to have been made in an original principal or capital amount
equal to the fair market value of such property.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
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<PAGE> 18
"Joint Venture" means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) now or hereafter formed
by the Borrower or any of its Subsidiaries with one or more other Persons in
order to conduct a common venture or enterprise with such Person.
"Lender" has the meaning specified in the introductory clause hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or "LIBOR
Lending Office," as the case may be, on Schedule 10.2, or such other office or
offices as the Lender may from time to time notify the Borrower and the Agent.
"LIBOR Rate" means, for any Interest Period, with respect to LIBOR Rate
Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Agent as follows:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum determined by the Agent as
the rate of interest at which dollar deposits in the approximate amount of the
amount of the Loan to be made or continued as, or converted into, a LIBOR Rate
Loan and for the relevant Interest Period therefor as quoted on the Telerate
Page 3750 (as defined herein) as of 11:00 a.m. (London time) on the day two (2)
Business Days before the commencement of such Interest Period. If Telerate Page
3750 is not available, such rate of interest shall be that quoted by the
Reference Bank and having a maturity comparable to such Interest Period as would
be offered to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
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<PAGE> 19
The LIBOR Rate shall be adjusted automatically as to all LIBOR Rate
Loans then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"LIBOR Rate Loan" means a Loan that bears interest based on the LIBOR
Rate.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment for security purposes, charge, encumbrance, lien
(statutory or other) of any kind or nature whatsoever in respect of any property
(including those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a capital
lease, any financing lease having substantially the same economic effect as any
of the foregoing, or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the Uniform Commercial
Code or any comparable law) and any contingent or other agreement to provide any
of the foregoing, but not including the interest of a lessor under an operating
lease.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II, and may be a Base Rate Loan or a LIBOR Rate Loan (each, a "Type" of
Loan).
"Loan Documents" means this Agreement, any Notes, the Warrants, the
Collateral Documents, the Commitment Letter and all other documents delivered to
the Agent or any Lender in connection herewith.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Borrower or any Subsidiary to perform under any Loan Document and to avoid any
Event of Default; or (c) a material adverse effect upon (i) the legality,
validity, binding effect or enforceability against the Borrower or any
Subsidiary of any Loan Document, or (ii) the perfection or priority of any Lien
granted under any of the Collateral Documents; provided, an effect described in
the preceding clauses (a), (b), and (c) shall constitute a "Material Adverse
Effect" only if it could reasonably be expected to materially impair the ability
or legally enforceable obligation of the Borrower or any Subsidiary to perform
its obligations under the Loan Documents or otherwise deprive the Lenders or any
one of them of the practical realization of the principal benefits intended
thereby.
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<PAGE> 20
"Material Subsidiary" means, at any time, any Subsidiary which has not
been designated by the Borrower as a "Non-Material Subsidiary" pursuant to
Section 7.16.
"Maturity Date" means the earlier of (i) December 23, 2000 and (ii) the
date the Obligations are accelerated pursuant to Section 8.2 hereof.
"Minimum Cash Balance" shall mean the sum of (a) the difference of (i)
[ * ] 1 less (ii) cash interest payments that have already been paid hereunder
in respect of the Loans plus (b) the positive difference, if any, of (i) the
aggregate of all Special Investments after the date hereof less (ii) the
aggregate of all Special Investment Returns after the date hereof.
"Multiemployer Plan" means a "multiemployer plan," within the meaning of
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Net Income" means, for any applicable period, the aggregate of all
amounts which, in accordance with GAAP, would be included as net income (or net
loss (including any extraordinary losses)) on a consolidated statement of income
of the Borrower and its Subsidiaries for such period; provided, however, that
"Net Income" shall exclude (i) the effect of any extraordinary or other
non-recurring non-cash gain outside the ordinary course of business and (ii) any
write-up in the value of any asset (to the extent such write-up exceeds any
write-down taken in connection with the same transaction or event which gave
rise to such write-up).
"Net Issuance Proceeds" means, as to any issuance of debt for borrowed
money or equity by any Person, cash and Cash Equivalent proceeds and instruments
received or receivable by such Person in connection therewith, net of reasonable
out-of-pocket costs and expenses paid or incurred in connection therewith in
favor of any Person not an Affiliate of such Person, such costs and expenses not
to exceed 5% of the gross proceeds of such issuance.
"Net Proceeds" means, as to any Disposition by a Person, proceeds in
cash, checks or other Cash Equivalent financial instruments as and when received
by such Person, net of: (a) the direct costs relating to such Disposition
excluding amounts payable to such Person or any Affiliate of such Person, (b)
sale, use or other
-----------
[ * ] Confidential Treatment Requested
1 To be increased by the percentage that facility is in excess of $75
million.
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<PAGE> 21
transaction taxes (including capital gains taxes) paid or payable by such Person
as a direct result thereof, and (c) amounts required to be applied to repay
principal, interest and prepayment premiums and penalties on Indebtedness
secured by a Lien on the asset which is the subject of such Disposition to the
extent such Lien is permitted hereunder. "Net Proceeds" shall also include
proceeds paid on account of any Event of Loss, net of (i) all money actually
applied to repair or reconstruct the damaged property or property affected by
the condemnation or taking, (ii) all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or other
payments, and (iii) any amounts retained by or paid to parties having superior
rights to such proceeds, awards or other payments.
"Non-Material Subsidiary" means any Subsidiary which is designated as
such by the Borrower pursuant to Section 7.16.
"Note" means a promissory note executed by the Borrower in favor of a
Lender pursuant to subsection 2.2(b), in substantially the form of Exhibit E.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit A.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Borrower to
any Lender, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation pertaining to the Loan
Documents.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
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<PAGE> 22
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Borrower sponsors, maintains, or
to which it makes, is making, or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5) plan
years.
"Permitted Liens" has the meaning specified in Section 7.1.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
is making, or is obligated to make contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Lender at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Lender's Commitment divided by the combined Commitments of all
Lenders.
"Reference Bank" means Deutsche Bank.
"Reportable Event" means, any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived by statute, regulation or
otherwise.
"Required Cash Balance" shall mean the lesser of (i) [ * ] and (ii) the
Minimum Cash Balance.
"Required Lenders" means at any time at least two Lenders then holding
at least 51% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, at least two Lenders then having
Pro Rata Shares equal to at least 51% of the Commitments.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
------------
[ * ] Confidential Treatment Requested
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<PAGE> 23
"Responsible Officer" means the chief executive officer or the president
of the Borrower, or any other officer having substantially the same authority
and responsibility; or, with respect to compliance with financial covenants, the
chief financial officer or the treasurer of the Borrower, or any other officer
having substantially the same authority and responsibility.
"Restricted Person" shall mean any Person (a) which has not executed a
guaranty as described in Section 6.14(d), (b) which has not executed a security
agreement as described in Section 6.14(d) granting a perfected first priority
security interest (subject only to Permitted Liens other than those described in
Section 7.1(i)) in substantially all of the property of such Person (including,
without limitation, all material property of such Person) in favor of the Agent
for the benefit of the Lenders, or (c) the stock or other equity interests of
which, to the extent owned, directly or indirectly, by the Borrower and its
Affiliates, has not been pledged, to the Agent for the benefit of the Lenders
pursuant to a pledge agreement as described in Section 6.14(d) which pledge
agreement grants in favor of the Agent a perfected first priority pledge
agreement (subject only to Permitted Liens other than those described in Section
7.1(i)), in each case of clauses (a), (b) and (c) of this definition, whether or
not such Person is a Subsidiary of the Borrower.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Special Investment" shall mean, without duplication, each of the
following: (a) Investments in Restricted Persons (excluding Investments to the
extent made by the Borrower using Equity Consideration and including any Debt
Consideration in respect thereof) and, (b) Investments consisting of the
assumption or incurrence of Indebtedness by the Borrower, or any Subsidiary
which is not Restricted Person, permitted under Section 7.5(h).
"Special Investment Return" shall mean, without duplication, each of the
following: (a) the amount of all proceeds, dividends, or distributions (in each
case to the extent consisting of cash and Cash Equivalents) received by the
Borrower, or any Subsidiary which is not a Restricted Person, in respect of a
Special Investment made by the Borrower or such Subsidiary, as the case may be,
and applied, to extent required pursuant thereto in accordance with Section 2.6,
but limited in the aggregate to the extent of the original amount of such
Special Investment, (b) the amount of any Special Investment (if of the type
described in clause (a) of the definition thereof) to the extent the Person in
which such Special Investment was made ceases to be a Restricted Person and (c)
the amount of any Special Investment consisting of a Contingent Obligation
permitted under Section 7.8(e) to the extent the underlying obligation is
satisfied, not by the Borrower, but by the primary obligor thereof, or
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<PAGE> 24
another Person which is not the Borrower or an Affiliate of the Borrower. For
purposes of clause (b) of this definition, the amount of a Special Investment
shall be deemed reduced from the original amount thereof by all proceeds,
dividends and distributions received by the Borrower as described in clause (a)
of this definition.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the New
York Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
property of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Subordinated Debt" shall mean Indebtedness of the Borrower which is
subordinated to the Obligations of the Borrower and the Subsidiaries hereunder
in right of payment, exercise of remedies or both, on terms and conditions
reasonably acceptable to the Agent and the Required Lenders.
"Subsidiary" of a Person means any corporation association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Borrower.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate
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<PAGE> 25
option, forward foreign exchange agreement, rate cap, collar or floor agreement,
currency swap agreement, cross-currency rate swap agreement, swaption, currency
option or any other, similar agreement (including any option to enter into any
of the foregoing).
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, such taxes (including
income taxes or franchise taxes) as are imposed on or measured by each Lender's
net income by the jurisdiction (or any political subdivision thereof) under the
laws of which such Lender or the Agent, as the case may be, is organized or
maintains a lending office.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or other such page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
"Type" has the meaning specified in the definition of "Loan."
"UCC" means the Uniform Commercial Code as in effect in the State of New
York.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United States of America.
"Warrants" shall mean, the warrants for Common Stock, $0.01 par value,
of the Borrower, substantially in the form of Exhibit F, to be delivered to
Agent for the benefit of the Lenders in proportion to their respective Pro Rata
Shares, in three series, for 75,000 shares, 225,000 shares and 450,000 shares,
respectively.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Borrower, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
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<PAGE> 26
1.2 OTHER INTERPRETIVE PROVISIONS
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding," and the word "through" means "to
and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Borrower
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<PAGE> 27
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agent merely because of the
Agent's or Lenders' involvement in their preparation.
(h) Each reference hereunder to Subsidiaries is effective at such time
and to the extent that the Borrower has existing Subsidiaries (as defined
herein).
1.3 ACCOUNTING PRINCIPLES
(a) Unless the context otherwise clearly requires, all accounting terms
not expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Borrower.
(c) In the event that GAAP changes during the term of this Agreement
such that the covenants contained in Section 7.14 would then be calculated in a
different manner or with different components or with components which are
calculated differently, (i) the parties hereto agree to enter into negotiations
with respect to amendments to this Agreement to conform those covenants as
criteria for evaluating the Borrower's and its Subsidiaries' financial condition
to substantially the same criteria as were effective prior to such change in
GAAP, and (ii) the Borrower shall be deemed to be in compliance with the
affected covenants contained in Section 7.14 during the 60 days following any
change in GAAP if and to the extent that the Borrower would have been in
compliance therewith under GAAP as in effect immediately before such change;
provided, however, that this paragraph shall not be deemed to require the
Borrower, the Agent or the Lenders to agree to modify any provision of this
Agreement or any of the other Loan Documents to reflect any such change to GAAP
and, if, after such 60 days, the parties, in their sole discretion, fail to
reach agreement on such modifications, the terms of this Agreement will remain
unchanged and the compliance by the Borrower with the covenants contained in
Section 7.14 will be calculated in accordance with GAAP as in effect immediately
before such change.
ARTICLE II
THE CREDIT
2.1 AMOUNTS AND TERMS OF COMMITMENT
Each Lender severally agrees, on the terms and conditions set forth
herein, to make a single loan to the Borrower (each such loan, a "Loan") on the
Closing Date in
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<PAGE> 28
an amount not to exceed such Lender's Pro Rata Share of the Commitment. Amounts
borrowed hereunder which are repaid or prepaid by the Borrower may not be
reborrowed.
2.2 LOAN ACCOUNTS
(a) The Loan made by each Lender shall be evidenced by one or more loan
accounts or records maintained by such Lender in the ordinary course of
business. The loan accounts or records maintained by the Agent and each Lender
shall be conclusive absent manifest error of the amount of the Loans made by the
Lenders to the Borrower and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to
the Loans.
(b) Upon the request of any Lender made through the Agent, the Loans
made by such Lender may be evidenced by one or more Notes, instead of loan
accounts. Each such Lender shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of the Loan made by it and the amount of each
payment of principal made by the Borrower with respect thereto. Each such Lender
is irrevocably authorized by the Borrower to endorse its Note(s) and each
Lender's record shall be conclusive absent manifest error; provided, however,
that the failure of a Lender to make, or an error in making, a notation thereon
with respect to any Loan shall not limit or otherwise affect the obligations of
the Borrower hereunder or under any such Note to such Lender.
2.3 FUNDING OF LOANS
(a) Each Lender will make the amount of its Pro Rata Share of the
Commitment available to the Agent for the account of the Borrower at the Agent's
Payment Office by 1:00 p.m. (New York City time) on the Closing Date in funds
immediately available to the Agent. The proceeds of all such Loans will then be
made available to the Borrower by the Agent by wire transfer in accordance with
written instructions provided to the Agent by the Borrower of like funds as
received by the Agent.
(b) During the first three (3) Business Days following the Closing Date,
all Loans shall be Base Rate Loans.
2.4 CONVERSION AND CONTINUATION ELECTIONS
(a) The Borrower may, upon irrevocable written notice to the Agent in
accordance with subsection 2.4(b):
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<PAGE> 29
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the case of
any other Type of Loans, to convert any such Loans (or any part thereof in an
amount not less than $1,000,000, or that is in an integral multiple of $500,000
in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest Period,
to continue as LIBOR Rate Loans any Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less than $1,000,000, or that is
in an integral multiple of $500,000 in excess thereof).
(b) The Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 1:00 p.m. (New York City time) at least (i)
three Business Days in advance of the Conversion/Continuation Date, if the Loans
are to be converted into or continued as LIBOR Rate Loans; and (ii) one Business
Day in advance of the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or renewed;
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
(D) other than in the case of conversions into Base Rate Loans,
the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Rate Loans, the Borrower has failed to select timely a new Interest Period to be
applicable to such LIBOR Rate Loans, or if any Event of Default then exists, the
Borrower shall be deemed to have elected to convert such LIBOR Rate Loans into
Base Rate Loans effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Borrower, the Agent will promptly notify each Lender of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Lender.
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(e) Unless the Required Lenders otherwise agree, during the existence of
an Event of Default, the Borrower may not elect to have a Loan converted into or
continued as a LIBOR Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
there may not be more than three different Interest Periods in effect.
2.5 OPTIONAL PREPAYMENTS
Subject to Section 3.4, the Borrower may, at any time or from time to
time, upon not less than one Business Day's (in the case of Base Rate Loans) or
three Business Days' (in the case of LIBOR Rate Loans) notice to the Agent
(which in either case shall be irrevocable one Business Day prior to the
proposed prepayment date), ratably prepay Loans in whole or in part, in minimum
amounts of $1,000,000 or any multiple of $500,000 in excess thereof. Such notice
of prepayment shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid. The Agent will promptly notify each Lender of
its receipt of any such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower and not rescinded in writing
by the Borrower more than one Business Day prior to the proposed prepayment
date, the Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.4.
2.6 MANDATORY PREPAYMENTS OF LOANS
(a) Asset Dispositions. If the Borrower or any Subsidiary shall at any
time or from time to time make or agree to make a Disposition then (i) the
Borrower shall promptly notify the Agent of such proposed Disposition (including
the amount of the estimated Net Proceeds to be received by the Borrower or such
Subsidiary in respect thereof) and (ii) promptly upon, and in no event later
than 90 days after, receipt by the Borrower or the Subsidiary of the Net
Proceeds of such Disposition, the Borrower shall prepay the Loans in an
aggregate amount equal to the amount of such Net Proceeds; provided, however,
that no such prepayment shall be required to the extent, in each case, such Net
Proceeds are used within 90 days of receipt thereof to purchase replacement
assets; provided further, that such notice and prepayment shall be required only
if (A) such Net Proceeds exceed $500,000 or (B) the aggregate of all Net
Proceeds theretofore received by the Borrower and not reinvested or used to make
a prepayment hereunder exceeds $1,000,000 in any fiscal year.
(b) Event of Loss. If the Borrower or any Subsidiary shall at any time
or from time to time suffer an Event of Loss, then (i) the Borrower shall
promptly notify
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the Agent of such Event of Loss (including the amount of the estimated Net
Proceeds to be received by the Borrower or such Subsidiary in respect thereof)
and (ii) promptly upon, and in no event later than two (2) Business Days after,
receipt by the Borrower or the Subsidiary of the Net Proceeds of such Event of
Loss, the Borrower shall, to the extent not inconsistent with any lease to which
the Borrower is bound, either (A) prepay the Loans in an aggregate amount equal
to the amount of such Net Proceeds or (B) deposit an aggregate amount equal to
the amount of such Net Proceeds into a blocked interest bearing account
maintained with the Agent pending release for usage by the Borrower in a manner,
and during the time, specified in the proviso below; provided, however, that no
such prepayment shall be required to the extent, in each case, such Net Proceeds
are used within 90 days, or provision for use within 180 days is made, of
receipt thereof to repair, replace or restore the assets, if any, relating to
such Event of Loss; provided further, that such notice and prepayment shall be
required only if (i) such Net Proceeds exceed $500,000 or (ii) the aggregate of
all Net Proceeds theretofore received by the Borrower and not reinvested or used
to make a prepayment hereunder exceeds $1,000,000 in any fiscal year.
(c) Equity or Debt Issuance. If the Borrower shall issue new common or
preferred equity, or shall incur additional Indebtedness (other than
Indebtedness permitted under Sections 7.5(b), (c), (e) or (f)), the Borrower
shall promptly notify the Agent of the estimated Net Issuance Proceeds of such
issuance or incurrence to be received by the Borrower in respect thereof.
Promptly upon, and in no event later than 3 days after, receipt by the Borrower
of Net Issuance Proceeds of such issuance or incurrence, the Borrower shall
prepay the Loans in an aggregate amount equal to 50% of the amount of such Net
Issuance Proceeds.
(d) General. Any prepayments pursuant to this Section 2.6 shall be
applied first to any Base Rate Loans then outstanding and then to LIBOR Rate
Loans with the shortest Interest Periods remaining; provided, however, that if
the amount of Base Rate Loans then outstanding is not sufficient to satisfy the
entire prepayment requirement, the Borrower may, at its option, place any
amounts which it would otherwise be required to use to prepay LIBOR Rate Loans
on a day other than the last day of the Interest Period therefor in an
interest-bearing account pledged to the Agent for the benefit of the Lenders
until the end of such Interest Period at which time such pledged amounts will be
applied to prepay such LIBOR Rate Loans. The Borrower shall pay, together with
each prepayment under this Section 2.6, accrued interest on the amount prepaid
and any amounts required pursuant to Section 3.4.
2.7 REPAYMENT
The Borrower shall repay the Loans in full, together with all accrued
and unpaid interest thereon, on the Maturity Date.
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2.8 INTEREST
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the Closing Date at a rate per annum equal to the LIBOR Rate or the
Base Rate, as the case may be (and subject to the Borrower's right to convert to
other Types of Loans under Section 2.4), plus the Interest Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of Loans
under Section 2.5 or 2.6 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand of the Agent at the request
or with the consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section, while any Event of
Default exists or after acceleration, the Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Loans, at a rate per annum which is
determined by adding 2% per annum to the Interest Margin then in effect for such
Loans; provided, however, that, on and after the expiration of any Interest
Period applicable to any LIBOR Rate Loan outstanding on the date of occurrence
of such Event of Default or acceleration, the principal amount of such Loan
shall, during the continuation of such Event of Default or after acceleration,
bear interest at a rate per annum equal to the Base Rate plus 3.5% (or, if later
than six (6) months after the disbursement of Loans hereunder, plus 4%).
(d) Anything herein to the contrary notwithstanding, the obligations of
the Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required, for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Borrower shall pay such Lender interest at the highest rate permitted
by applicable law.
2.9 FEES
(a) Arrangement, Agency Fees. The Borrower shall pay a syndication and
underwriting fee to the Arranger and to Deutsche Bank, for their respective
accounts, and shall pay an agency fee to the Agent for the Agent's own account,
as required by the Commitment Letter.
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2.10 COMPUTATION OF FEES AND INTEREST
(a) All computations of interest for Base Rate Loans when the Base Rate
is determined by Deutsche Bank's "prime lending rate" shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Agent will, at the request of the Borrower or any Lender,
deliver to the Borrower or the Lender, as the case may be, a statement showing
the quotations used by the Agent in determining any interest rate and the
resulting interest rate.
(c) The Reference Bank shall use its best efforts to furnish quotations
of rates to the Agent as contemplated hereby.
2.11 PAYMENTS BY THE BORROWER
(a) All payments to be made by the Borrower shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Borrower shall be made to the Agent for the account
of the Lenders at the Agent's Payment Office, and shall be made in dollars and
in immediately available funds, no later than 2:00 p.m. (New York City time) on
the date specified herein. The Agent will promptly distribute to each Lender its
Pro Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent later than
2:00 p.m. (New York City time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Borrower prior to the date
on which any payment is due to the Lenders that the Borrower will not make such
payment in full as and when required, the Agent may assume that the Borrower has
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made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower has not made such
payment in full to the Agent, each Lender shall repay to the Agent on demand
such amount distributed to such Lender, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
2.12 PAYMENTS BY THE LENDERS TO THE AGENT
(a) Unless the Agent receives notice from a Lender on or prior to the
Closing Date that such Lender will not make available on the Closing Date to the
Agent for the account of the Borrower the amount of that Lender's Pro Rata Share
of the Commitment, the Agent may assume that each Lender has made such amount
available to the Agent in immediately available funds on the Closing Date and
the Agent may (but shall not be so required), in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If and to
the extent any Lender shall not have made its full amount available to the Agent
in immediately available funds and the Agent in such circumstances has made
available to the Borrower such amount, that Lender shall on the Business Day
following the Closing Date make such amount available to the Agent, together
with interest at the Federal Funds Rate for each day during such period. A
notice of the Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Agent shall constitute such Lender's
Loan on the Closing Date for all purposes of this Agreement.
(b) The failure of any Lender to make any Loan on the Closing Date shall
not relieve any other Lender of any obligation hereunder to make a Loan on the
Closing Date, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the Closing Date.
2.13 SHARING OF PAYMENTS, ETC.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its Pro Rata Share, such Lender shall immediately (a) notify the Agent
of such fact, and (b) purchase from the other Lenders such participations in the
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to
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that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.10) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments.
2.14 SECURITY
All obligations of the Borrower and the Subsidiaries under this
Agreement, the Notes and all other Loan Documents shall be secured in accordance
with the Collateral Documents.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 TAXES
(a) Any and all payments by the Borrower to each Lender or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for any Taxes. In addition, the
Borrower shall pay all Other Taxes.
(b) The Borrower agrees to indemnify and hold harmless each Lender and
the Agent for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section)
paid by the Lender or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days after
the date the Lender or the Agent makes written demand therefor.
(c) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, then:
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(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section) such
Lender or the Agent, as the case may be, receives an amount equal to the sum it
would have received had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
(iii) the Borrower shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law; and
(iv) the Borrower shall also pay to each Lender or the Agent for
the account of such Lender, at the time interest is paid, all additional amounts
which the respective Lender specifies as necessary to preserve the after-tax
yield the Lender would have received if such Taxes or Other Taxes had not been
imposed.
(d) Within 30 days after the date of any payment by the Borrower of
Taxes or Other Taxes, the Borrower shall furnish the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(e) If the Borrower is required to pay additional amounts to any Lender
or the Agent pursuant to subsection (c) of this Section, then such Lender shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Borrower which may thereafter accrue, if such change
in the judgment of such Lender is not otherwise disadvantageous to such Lender.
3.2 ILLEGALITY
(a) If any Lender reasonably determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make
LIBOR Rate Loans, then, on notice thereof by the Lender to the Borrower through
the Agent, any obligation of that Lender to make LIBOR Rate Loans shall be
suspended until the Lender notifies the Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender reasonably determines that it is unlawful to maintain
any LIBOR Rate Loan, the Borrower shall, upon its receipt of notice of such fact
and
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demand from such Lender (with a copy to the Agent), prepay in full such LIBOR
Rate Loans of that Lender then outstanding, together with interest accrued
thereon and amounts required under Section 3.4, either on the last day of the
Interest Period thereof, if the Lender may lawfully continue to maintain such
LIBOR Rate Loans to such day, or immediately, if the Lender may not lawfully
continue to maintain such LIBOR Rate Loan. If the Borrower is required to so
prepay any LIBOR Rate Loan, then concurrently with such prepayment, the Borrower
shall borrow from the affected Lender, in the amount of such repayment, a Base
Rate Loan.
(c) If the obligation of any Lender to make or maintain LIBOR Rate Loans
has been so terminated or suspended, the Borrower may elect, by giving notice to
the Lender through the Agent that all Loans which would otherwise be made by the
Lender as LIBOR Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section, the
affected Lender shall designate a different Lending Office with respect to its
LIBOR Rate Loans if such designation will avoid the need for giving such notice
or making such demand and will not, in the judgment of the Lender, be illegal or
otherwise disadvantageous to the Lender.
3.3 INCREASED COSTS AND REDUCTION OF RETURN
(a) If any Lender reasonably determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by that Lender with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then
the Borrower shall be liable for, and shall from time to time, upon demand (with
a copy of such demand to be sent to the Agent), pay to the Agent for the account
of such Lender, additional amounts as are sufficient to compensate such Lender
for such increased costs.
(b) If any Lender shall have reasonably determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Lender (or its Lending Office) or any corporation controlling
the Lender with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) reasonably
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determines that the amount of such capital is increased as a consequence of its
Commitment, loans, credits or obligations under this Agreement, then, upon
demand of such Lender to the Borrower through the Agent, the Borrower shall pay
to the Lender, from time to time as specified by the Lender, additional amounts
sufficient to compensate the Lender for such increase.
3.4 FUNDING LOSSES
The Borrower shall reimburse each Lender and hold each Lender harmless
from any loss (excluding consequential damages consisting of lost profits) or
expense which the Lender may sustain or incur as a consequence of:
(a) the failure of the Borrower to make on a timely basis any payment of
principal of any LIBOR Rate Loan;
(b) the failure of the Borrower to borrow the Loans on the Closing Date,
or to continue or convert a Loan after the Borrower has given (or is deemed to
have given) a Notice of Conversion/Continuation;
(c) the failure of the Borrower to make any prepayment in accordance
with any notice delivered under Section 2.5;
(d) the prepayment (including pursuant to Sections 2.5 and 2.6) or other
payment (including after acceleration thereof) of a LIBOR Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any LIBOR Rate Loan to
a Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Borrower to the Lenders under this Section
and under subsection 3.3(a), each LIBOR Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the LIBOR Rate for
such LIBOR Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such LIBOR Rate Loan is in fact so funded.
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3.5 INABILITY TO DETERMINE RATES
If the Agent reasonably determines that for any reason adequate and
reasonable means do not exist for determining the LIBOR Rate for any requested
Interest Period with respect to a proposed LIBOR Rate Loan, or that the LIBOR
Rate applicable pursuant to subsection 2.8(a) for any requested Interest Period
with respect to a proposed LIBOR Rate Loan does not adequately and fairly
reflect the cost to the of funding such Loan, the Agent will promptly so notify
the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain LIBOR Rate Loans hereunder shall be suspended until the Agent
revokes such notice in writing, which it shall do promptly when possible. Upon
receipt of such notice, the Borrower may revoke any Notice of
Conversion/Continuation then submitted by it. If the Borrower does not revoke
such Notice, the Lenders shall make, convert or continue the Loans, as proposed
by the Borrower, in the amount specified in the applicable notice submitted by
the Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans instead of LIBOR Rate Loans.
3.6 CERTIFICATES OF LENDERS
Any Lender claiming reimbursement or compensation under this Article III
shall deliver to the Borrower (with a copy to the Agent) a certificate setting
forth in reasonable detail the amount payable to the Lender hereunder and such
certificate shall be conclusive and binding on the Borrower in the absence of
manifest error.
3.7 SURVIVAL
The agreements and obligations of the Borrower in this Article III shall
survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS OF LOANS
The obligation of each Lender to make its Loan hereunder is subject to
the condition that the Agent has received on or before the Closing Date all of
the following, in form and substance satisfactory to the Agent and each Lender,
and in sufficient copies for each Lender:
(a) Credit Agreement and Notes. This Agreement, the Notes and the
Warrants executed by each party thereto;
(b) Resolutions; Incumbency.
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(i) Copies of the resolutions of the board of directors of the
Borrower and each Subsidiary that may become party to a Loan Document
authorizing the transactions contemplated hereby, certified as of the Closing
Date by the Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary or an
executive officer of the Borrower, and each Subsidiary that may become party to
a Loan Document certifying the names and true signatures of the officers of the
Borrower or such Subsidiary authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be delivered by it
hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the bylaws
of the Borrower and each Subsidiary party to any Loan Document as in effect on
the Closing Date, certified by the Secretary or Assistant Secretary of the
Borrower or such Subsidiary as of the Closing Date; and
(ii) a good standing certificate for the Borrower and each
Subsidiary party to any Loan Document from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation and each state
where the Borrower or such Subsidiary is qualified to do business as a foreign
corporation as of a recent date;
(d) Legal Opinions. An opinion of Perkins Coie - Seattle, counsel to the
Borrower and addressed to the Agent and the Lenders, substantially in the form
of Exhibit C;
(e) Payment of Fees. Evidence of payment by the Borrower of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of Deutsche Bank to the extent
invoiced prior to or on the Closing Date; including any such costs, fees and
expenses arising under or referenced in Sections 2.9 and 10.4;
(f) Collateral Documents. The Collateral Documents, executed by the
Borrower, in appropriate form for recording, where necessary, together with:
(i) copies of all UCC-l financing statements filed, registered or
recorded to perfect the security interests of the Agent for the benefit of the
Lenders, or other evidence satisfactory to the Agent that there has been filed,
registered or
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recorded all financing statements and other filings, registrations and
recordings necessary and advisable to perfect the Liens of the Agent for the
benefit of the Lenders in accordance with applicable law (provided that filings
to be made in connection with Intellectual Property Collateral (as defined in
the Security Agreement) shall be made within seven days after the Closing Date);
(ii) written advice relating to such Lien and judgment searches
as the Agent shall have requested, and such termination statements or other
documents as may be necessary to confirm that the Collateral is subject to no
other Liens in favor of any Persons (other than Permitted Liens);
(iii) funds sufficient to pay any filing or recording tax or fee
in connection with any and all UCC-1 financing statements; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Agent or the Lenders, desirable, to perfect and
protect the first priority security interest created by the Collateral Documents
and to enhance the Agent's ability to preserve and protect its interests in and
access to the Collateral, have been taken;
(g) Insurance Policies. Standard lenders' payable endorsements with
respect to the insurance policies or other instruments or documents evidencing
insurance coverage on the properties of the Borrower in accordance with
Section 6.6;
(h) Certificate. A certificate signed by a Responsible Officer, dated as
of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from
making the Loans under Article II; and
(iii) there has occurred since September 30, 1997, no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect; and
(i) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
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4.2 CONDITIONS TO CONTINUATIONS/CONVERSIONS
The obligation of each Lender to continue or convert any Loan under
Section 2.4 is subject to the satisfaction of the following conditions precedent
on the relevant Conversion/Continuation Date:
(a) Notice of Conversion/Continuation. The Agent shall have
received a Notice of Conversion/Continuation;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and as
of such Conversion/Continuation Date with the same effect as if made on and as
of such Conversion/Continuation Date (except to the extent such representations
and warranties solely and expressly refer to an earlier date, in which case they
shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such continuation or conversion.
Each Notice of Conversion/Continuation submitted by the Borrower
hereunder shall constitute a representation and warranty by the Borrower
hereunder, as of the date of each such notice and as of each
Conversion/Continuation Date, as applicable, that the conditions in Section 4.2
are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Lender that:
5.1 CORPORATE EXISTENCE AND POWER
The Borrower and each of its Subsidiaries:
(a) is a corporation, partnership, limited liability company or
similar entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation, partnership,
limited liability company or similar entity and is licensed and in good standing
under the laws
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of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION
The execution, delivery and performance by the Borrower and its
Subsidiaries of this Agreement and each other Loan Document to which such Person
is party, have been duly authorized by all necessary corporate, partnership,
limited liability company or similar entity action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law.
5.3 GOVERNMENTAL AUTHORIZATION
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority (except for recordings or
filings in connection with the Liens granted to the Agent under the Collateral
Documents and except for state and federal securities laws filings in connection
with the issuance of the Warrants that may be required) is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, the Borrower or any of its Subsidiaries of the Agreement or any other
Loan Document.
5.4 BINDING EFFECT
This Agreement and each other Loan Document to which the Borrower or any
of its Subsidiaries is a party constitute the legal, valid and binding
obligations of the Borrower and any of its Subsidiaries to the extent it is a
party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
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5.5 LITIGATION
Except as specifically disclosed in Schedule 5.5, as of the date of this
Agreement there are no actions, suits, proceedings, claims or disputes pending,
or to the best knowledge of the Borrower, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the
Borrower, or its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Borrower or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
5.6 NO DEFAULT
No Default or Event of Default exists or would result from the incurring
of any Obligations by the Borrower or from the grant or perfection of the Liens
of the Agent and the Lenders on the Collateral. As of the Closing Date, neither
the Borrower nor any Subsidiary is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create an
Event of Default under subsection 8.1(e).
5.7 ERISA COMPLIANCE
Except as specifically disclosed in Schedule 5.7:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Borrower, nothing has occurred which would cause the loss of such qualification.
The Borrower and each ERISA Affiliate has made all required contributions to any
Plan subject to Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
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(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c)(i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA, which in the case of each
of the foregoing clauses (i) through (v) could reasonably be expected to have a
Material Adverse Effect.
5.8 USE OF PROCEEDS; MARGIN REGULATIONS
The proceeds of the Loans are to be used solely for the purposes set
forth in and permitted by Section 6.12 and Section 7.7. Neither the Borrower nor
any Subsidiary is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock.
5.9 TITLE TO PROPERTIES
The Borrower and each Subsidiary have good record and marketable title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of their respective businesses, except for such
defects in title which could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. As of the Closing Date, the
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.10 TAXES
The Borrower and its Subsidiaries have filed all Federal and other
material tax returns and reports required to be filed, and have paid all Federal
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which
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are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect.
5.11 FINANCIAL CONDITION
(a) The unaudited consolidated financial statements of the Borrower and
its Subsidiaries dated September 30, 1997, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, subject to ordinary, good faith year-end audit adjustments;
(ii) fairly present the financial condition of the Borrower and
its Subsidiaries as of the date thereof and results of operations for the period
covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11, show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent Obligations.
(b) Since September 30, 1997, there has been no Material Adverse Effect.
5.12 ENVIRONMENTAL MATTERS
(a) Except as specifically disclosed in Schedule 5.12, the on-going
operations of the Borrower and each of its Subsidiaries comply in all respects
with all Environmental Laws, except such non-compliance which would not (if
enforced in accordance with applicable law) result in liability in excess of
$2,000,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 5.12, the Borrower and
each of its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law ("Environmental Permits") and
necessary for their respective ordinary course operations, all such
Environmental Permits are in good standing, and the Borrower and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits except to the extent the failure to have such
Environmental Permits or to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
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(c) Except as specifically disclosed in Schedule 5.12, none of the
Borrower, any of its Subsidiaries or any of their respective present property or
operations, is subject to any outstanding written order from or agreement with
any Governmental Authority, nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental Claim
or Hazardous Material, which would if adversely determined, result in a
liability or in economic loss in excess of $2,000,000 in the aggregate.
(d) Except as specifically disclosed in Schedule 5.12, there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any property of the Borrower or any Subsidiary, or arising from operations
prior to the Closing Date, of the Borrower or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims with a potential
liability of the Borrower and its Subsidiaries in excess of $2,000,000 in the
aggregate for any such condition, circumstance or property. In addition, (i)
neither the Borrower nor any Subsidiary has any underground storage tanks (x)
that are not properly registered or permitted under applicable Environmental
Laws, or (y) that are leaking or disposing of Hazardous Materials off-site, and
(ii) the Borrower and its Subsidiaries have notified all of their employees of
the existence, if any, of any health hazard arising from the conditions of their
employment and have met all notification requirements under Title III of CERCLA
and all other Environmental Laws.
5.13 COLLATERAL DOCUMENTS
(a) As of the date hereof, the provisions of each of the Collateral
Documents are effective to create in favor of the Agent for the benefit of the
Lenders, a legal, valid and enforceable security interest in all right, title
and interest of the Borrower and its Subsidiaries in the collateral described
therein; and financing statements have been delivered to the Agent for filing in
the offices in all of the jurisdictions listed in the schedule to the Security
Agreement and executed Patent Assignments, Trademarks Assignments and Copyright
Assignments have been delivered to the Agent for filing in the U.S. Patent and
Trademark Office and the U.S. Copyright Office and upon the filing of such
assignments and such financing statements in such offices, the Agent, for the
benefit of the Lenders, will have a perfected first priority security interest
(subject only to Permitted Liens) in the collateral described thereon in which a
security interest may be perfected by the filing of such financing statements or
assignments, and upon delivery of those items of Collateral for which physical
possession is the method for perfection, the Agent, for the benefit of the
Lenders will have a valid, first priority security interest thereon.
(b) All representations and warranties of the Borrower and any of its
Subsidiaries party thereto contained in the Collateral Documents are true and
correct.
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5.14 REGULATED ENTITIES
None of the Borrower, any Person controlling the Borrower, or any
Subsidiary, is an "Investment Company" within the meaning of the Investment
Company Act of 1940. The Borrower is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state
statute or regulation limiting its ability to incur Indebtedness.
5.15 NO BURDENSOME RESTRICTIONS
As of the date of this Agreement, neither the Borrower nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
5.16 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.
The Borrower or its Subsidiaries own or are licensed or otherwise have
the right to use all of the patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations and other rights that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. Except as specifically disclosed in Schedule 5.5, no claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Borrower,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
5.17 SUBSIDIARIES
As of the date of this Agreement, the Borrower has no Subsidiaries other
than those specifically disclosed in part (a) of Schedule 5.17 hereto and has no
Investments in any other corporation or entity other than those specifically
disclosed in part (b) of Schedule 5.17.
5.18 INSURANCE
Except as specifically disclosed in Schedule 5.18, the properties of the
Borrower and its Subsidiaries are insured with financially sound and reputable
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insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or such Subsidiary operates.
5.19 SOLVENCY
The Borrower and each of its Material Subsidiaries are Solvent.
5.20 FULL DISCLOSURE
None of the representations or warranties made by the Borrower or any
Subsidiary in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of the
Borrower or any Subsidiary in connection with the Loan Documents (including the
offering and disclosure materials delivered by or on behalf of the Borrower to
the Lenders prior to the Closing Date), contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
6.1 FINANCIAL STATEMENTS
The Borrower shall deliver to the Agent, in form and detail reasonably
satisfactory to the Agent and the Required Lenders, with sufficient copies for
each Lender:
(a) as soon as available, but not later than 95 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of Ernst & Young
LLP or another nationally recognized independent public accounting firm
("Independent Auditor") which report shall state
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that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years with the exception of changes noted therein. Such
opinion shall not be qualified or limited because of a restricted or limited
examination by the Independent Auditor of any material portion of the Borrower's
or any Subsidiary's records;
(b) as soon as available, but not later than 50 days after the
end of each of the first three fiscal quarters of each fiscal year a copy of the
unaudited consolidated balance sheet (including a statement of stockholders'
equity) of the Borrower and its Subsidiaries as of the end of such quarter and
the related consolidated statements of income and cash flows for the period
commencing on the first day and ending on the last day of such quarter, and
certified by a Responsible Officer as fairly presenting, in accordance with GAAP
(subject to normal good faith year-end audit adjustments), the financial
position and the results of operations of the Borrower and the Subsidiaries;
(c) concurrent with the delivery of each of the reports required
under clauses (a) and (b) above, a good faith reasonable estimate by the
Borrower for the Non-Material Subsidiaries of such Non-Material Subsidiaries'
(i) total (gross) revenues (on a consolidated basis) for the four fiscal quarter
period ending as of the report date and (ii) total assets (on a consolidated
basis), as of the last day of the fiscal quarter ending as of the report date,
reported on a net book value basis; provided, that any Non-Material Subsidiary
which has less than four fiscal quarters of financial information shall
annualize the financial results of its operations for purposes of this
Section 6.1(c).
6.2 CERTIFICATES; OTHER INFORMATION
The Borrower shall furnish to the Agent, with sufficient copies for each
Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(c) promptly, copies of all financial statements and reports that
the Borrower sends to its shareholders, and copies of all financial statements
and regular,
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periodical or special reports (including Forms 10K, 10Q and 8K) that the
Borrower or any Subsidiary may make to, or file with, the SEC;
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the Agent,
at the request of any Lender, may from time to time reasonably request; and
(e) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b) and immediately prior to each
Acquisition or Investment resulting in a Person becoming a Subsidiary, a
certification of a Responsible Officer specifying which of the Subsidiaries of
the Borrower are Non-Material Subsidiaries and demonstrating compliance with
Section 7.16 (after giving effect to such Acquisition or Investment), together
with the information required under Section 6.1(c).
6.3 NOTICES
The Borrower shall promptly notify the Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default
under, any Contractual Obligation of the Borrower or any of its Subsidiaries
which could reasonably be expected to result in a Material Adverse Effect; and
(ii) any dispute, litigation, investigation, proceeding or suspension which may
exist at any time between the Borrower or any of its Subsidiaries and any
Governmental Authority which could have a Material Adverse Effect, if adversely
determined;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary (i) in which
the amount of damages claimed is $2,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 10 days after, becoming
aware of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Borrower or
any Subsidiary or any of their respective properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Borrower or any
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Subsidiary that could reasonably be anticipated to cause such property or any
part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of such property under any Environmental Laws;
(e) of any other litigation or proceeding affecting the Borrower
or any of its Subsidiaries which the Borrower would be required to report to the
SEC pursuant to the Exchange Act, within four days after reporting the same to
the SEC;
(f) of any of the following events affecting the Borrower,
together with a copy of any notice with respect to such event that may be
required to be filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Borrower with respect to such event:
(i) an ERISA Event;
(ii) if any of the representations and warranties in
Section 5.7 ceases to be true and correct;
(iii) the adoption of any new Pension Plan or other Plan
subject to Section 412 of the Code;
(iv) the adoption of any amendment to a Pension Plan or
other Plan subject to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension Liability; or
(v) the commencement of contributions to any Pension Plan
or other Plan subject to Section 412 of the Code; and
(g) of any material change in accounting policies or financial
reporting practices by the Borrower or any of its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Borrower or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 6.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been (or
foreseeably will be) breached or violated.
6.4 PRESERVATION OF CORPORATE EXISTENCE, ETC.
The Borrower shall, and shall cause each Subsidiary to:
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(a) preserve and maintain in full force and effect its corporate,
partnership, limited liability or other existence and good standing under the
laws of its state or jurisdiction of incorporation or formation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 7.3 and sales of assets
permitted by Section 7.2;
(c) use reasonable efforts, in the ordinary course of business,
to preserve its business organization and goodwill (subject in the case of
Subsidiaries, to transactions permitted under Sections 7.2 and 7.3); and
(d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY
The Borrower shall maintain, and shall cause each Subsidiary to
maintain, and preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear excepted and make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect, except as permitted by Section 7.2.
6.6 INSURANCE
In addition to insurance requirements set forth in the Collateral
Documents, the Borrower shall maintain, and shall cause each of its Subsidiaries
to maintain, with financially sound and reputable independent insurers,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons; including workers' compensation
insurance, public liability and property and casualty insurance which amount
shall not be reduced by the Borrower in the absence of 30 days' prior notice to
the Agent. All such insurance shall name the Agent as loss payee/mortgagee and
as additional insured, for the benefit of the Lenders, as their interests may
appear. Upon request of the Agent or any Lender, the Borrower shall furnish the
Agent, with sufficient copies for each Lender, at reasonable intervals (but not
more than once per calendar year) a certificate of a Responsible Officer of the
Borrower (and, if requested by the Agent, any insurance broker of the Borrower)
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setting forth the nature and extent of all insurance maintained by the Borrower
and its Subsidiaries in accordance with this Section or any Collateral Documents
(and which, in the case of a certificate of a broker, were placed through such
broker).
6.7 PAYMENT OF OBLIGATIONS
The Borrower shall, and shall cause each Subsidiary to, pay and
discharge as the same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and
(c) all indebtedness, as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.8 COMPLIANCE WITH LAWS
The Borrower shall comply, and shall cause each Subsidiary to comply, in
all material respects with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act), except such as may be contested in good faith or as to which a
bona fide dispute may exist.
6.9 COMPLIANCE WITH ERISA
The Borrower shall, and shall cause each of its ERISA Affiliates to: (a)
maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; (b) cause each
Plan which is qualified under Section 401(a) of the Code to maintain such
qualification; and (c) make all required contributions to any Plan subject to
Section 412 of the Code.
6.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS
The Borrower shall maintain and shall cause each Subsidiary to maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions
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and matters involving the assets and business of the Borrower and such
Subsidiary. The Borrower shall permit, and shall cause each Subsidiary to
permit, in each case no more frequently than annually prior to the occurrence of
an Event of Default, representatives and independent contractors (which, in the
case of any auditing personnel, shall be employees of a nationally recognized
accounting firm) of the Agent who execute and deliver to the Borrower a
confidentiality agreement consistent with Section 10.9 hereof to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all at
the reasonable expense of the Borrower and at such reasonable times during
normal business hours, upon reasonable advance notice to the Borrower; provided,
however, when an Event of Default exists the Agent or any Lender may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice; provided, further however, that such
inspections shall be permitted with such frequency as may reasonably be desired
by the Agent on and after the occurrence of a Default or an Event of Default.
6.11 ENVIRONMENTAL LAWS
(a) The Borrower shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all
Environmental Laws in all material respects.
(b) Upon the written request of the Agent or any Lender, the Borrower
shall submit and cause each of its Subsidiaries to submit, to the Agent with
sufficient copies for each Lender, at the Borrower's sole cost and expense, at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to subsection 6.3(d), that could,
individually or in the aggregate, result in liability in excess of $500,000.
6.12 USE OF PROCEEDS
The Borrower shall use the proceeds of the Loans only for one or more of
the following: working capital, acquisitions permitted hereunder, funding
operations, Joint Ventures permitted hereunder and other general corporate
purposes not in contravention of any Requirement of Law or of any Loan Document.
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6.13 SWAP CONTRACTS
Within 30 days of the Closing Date, the Borrower shall enter into Swap
Contracts providing protection against fluctuations in interest rates with one
or more financial institutions each having a combined capital and surplus of at
least $100,000,000 with respect to at least $37,500,000 of the Loans, which
agreements shall provide for not less than a one-year term and contain such
other terms and provisions as are customary and satisfactory to the Agent.
6.14 FURTHER ASSURANCES
(a) The Borrower shall ensure that all written information, exhibits and
reports furnished to the Agent or the Lenders do not and will not contain any
untrue statement of a material fact and do not and will not omit to state any
material fact necessary to make the statements contained therein not misleading
in light of the circumstances in which made, and will promptly disclose to the
Agent and the Lenders and correct any defect or error that may be discovered
therein or in any Loan Document or in the execution, acknowledgment or
recordation thereof.
(b) Promptly upon request by the Agent or the Required Lenders, the
Borrower shall (and shall cause any of its Subsidiaries to) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Agent or such
Required Lenders, as the case may be, may reasonably require from time to time
in order (i) to carry out more effectively the purposes of this Agreement or any
other Loan Document, (ii) to subject to the Liens created by any of the
Collateral Documents any of the properties, rights or interests covered by any
of the Collateral Documents, except as otherwise provided in the Loan Documents,
(iii) to perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and the Liens intended to be created thereby, and (iv)
to better assure, convey, grant, assign, transfer, preserve, protect and confirm
to the Agent and Lenders the rights granted or now or hereafter intended to be
granted to the Lenders under any Loan Document or under any other document
executed in connection therewith.
(c) Within 20 days of the Closing Date, (i) the Borrower shall deliver
to the Agent, lien search results evidencing the filing of Financing Statements
(as defined in the Security Agreement) in the jurisdictions listed in Schedule
6.14 hereto, naming the Borrower as "debtor" and the Agent as "secured party"
and confirming that no other financing statements have been filed with respect
to the Collateral in such jurisdictions (other than Permitted Liens) and (ii)
the Borrower shall use its diligent
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efforts to obtain from its lessors/warehousemen a consent substantially in the
form attached hereto as Exhibit G.
(d) Promptly upon any Person becoming after the date hereof a Subsidiary
of the Borrower, the Borrower:
(i) shall cause such Subsidiary to execute and deliver to the
Agent a guaranty of all of the Obligations in form and substance reasonably
acceptable to the Required Lenders and the Agent;
(ii) shall cause such Subsidiary to execute and deliver to the
Agent a security agreement granting a security interest in all of such
Subsidiary's assets in favor of the Agent for the benefit of the Lenders as
security for the Obligations (including the obligations of such Subsidiary under
the guaranty referred to in clause (i) above), in form and substance reasonably
acceptable to the Required Lenders and the Agent and shall cause to be delivered
to the Agent with respect to such Subsidiary the documents referred to in
Section 4.1, mutatis mutandis, together with such opinions in form and substance
and from counsel reasonably satisfactory to the Agent, as the Agent may require;
and
(iii) shall cause each Person that is the Borrower or an Affiliate
of the Borrower that is the direct owner of any shares of capital stock (or
other evidence of beneficial ownership) of such Subsidiary to execute and
deliver to the Agent a pledge agreement pledging in favor of the Agent for the
benefit of the Lenders as security for the Obligations, all of such capital
stock, in form and substance reasonably acceptable to the Required Lenders and
the Agent, and shall cause to be delivered to the Agent certificates evidencing
all of the issued and outstanding shares of capital stock (or other evidence of
beneficial ownership) of such Subsidiary, together with undated stock powers (or
similar instruments of transfer) owned by such Persons duly executed in blank
and appropriately completed Uniform Commercial Code financing statements, if
applicable, with respect thereto (or, if any such shares of capital stock (or
other evidence of beneficial ownership) are not represented by certificates,
confirmation and evidence satisfactory to the Agent that the security interest
in such shares (or other such evidence) has been transferred and/or registered
in accordance with the laws of the applicable jurisdictions so as to create a
valid first-priority perfected security interest therein for the benefit of the
Agent and the Lenders) and together with such opinions in form and substance and
from counsel reasonably satisfactory to the Agent, as the Agent may reasonably
require;
provided, that in the case of an Acquisition where the Borrower and its
Affiliates acquire less than 100% of the common shares or other common voting
equity interests of a Person, the Borrower shall be required to provide the
security agreement and
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guaranty provided for in clauses (i) and (ii) above only if consented to by the
holders of at least 95% (other than the Borrower and its Affiliates) of the
common shares or other common voting equity interests of such Person; provided,
further, that the Borrower shall be required to make a good faith request for
such consent from such holders; provided, further, if all of the common shares
or other common voting equity interests of such Person are subsequently acquired
by the Borrower and its Affiliates, such Person shall promptly comply with
clauses (i) and (ii) above.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
7.1 LIMITATION ON LIENS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, directly or indirectly, make, create, incur, assume or suffer to exist any
Lien upon or with respect to any part of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien (other than a Lien on the Collateral) existing on
property of the Borrower or any Subsidiary on the Closing Date and set forth in
Schedule 7.1 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 6.7, provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA and other than on
the Collateral) consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other social security legislation;
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(f) Liens (other than Liens on the Collateral) on the property of
the Borrower or its Subsidiary securing (i) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and (iii)
other non-delinquent obligations of a like nature; in each case, incurred in the
ordinary course of business, provided all such Liens in the aggregate would not
(even if enforced) cause a Material Adverse Effect;
(g) Liens (other than Liens on the Collateral) consisting of
judgment or judicial attachment liens, provided that the enforcement of such
Liens is effectively stayed and all such liens in the aggregate at any time
outstanding for the Borrower and its Subsidiaries do not exceed $2,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Borrower and its
Subsidiaries;
(i) Liens on assets of corporations which become Subsidiaries
after the date of this Agreement, provided, however, that such Liens existed at
the time the respective corporations became Subsidiaries and were not created in
anticipation thereof;
(j) Liens on assets acquired in an Acquisition, which Liens
existed prior to the completion of the Acquisition and were not created in
contemplation thereof;
(k) purchase money security interests on any property (together
with proceeds, but not products, thereof) acquired or held by the Borrower or
its Subsidiaries in the ordinary course of business, securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such property; provided that (i) any such Lien attaches to such
property concurrently with or within 20 days after the acquisition thereof, (ii)
such Lien attaches solely to the property (together with the proceeds, but not
products, thereof) so acquired in such transaction, (iii) the principal amount
of the debt secured thereby does not exceed 100% of the cost of such property,
and (iv) the annual amortization of the principal amount of the Indebtedness
secured by any and all such purchase money security interests shall not at any
time exceed, together with, without duplication, the annual lease payments in
respect of Indebtedness permitted under Section 7.5(g) as required (or elected
by the Borrower) to be stated per GAAP in its cash flow statements as
amortization, $5,000,000;
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(l) Liens securing obligations in respect of capital leases on
assets subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(m) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated
by the FRB except as provided on Schedule 7.1 hereof, and (ii) such deposit
account is not intended by the Borrower or any Subsidiary to provide collateral
to the depository institution; and
(n) Liens consisting of pledges of cash collateral or government
securities to secure on a mark-to-market basis obligations under Swap Contracts
entered into in the ordinary course of business as bona fide hedging
transactions, provided that (i) the counterparty to such Swap Contract is under
a similar requirement to deliver similar collateral from time to time to the
Borrower or the Subsidiary party thereto, and (ii) the aggregate value of such
collateral so pledged by the Borrower and the Subsidiaries together in favor of
any counterparty does not at any time exceed $2,000,000.
7.2 DISPOSITION OF ASSETS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business; and
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied,
consistent with Section 2.6, to the purchase price of such replacement
equipment; and
(c) dispositions not otherwise permitted hereunder which are made
for fair market value; provided, that (i) at the time of any disposition, no
Event of Default shall exist or shall result from such disposition, (ii) the
aggregate sales price
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from such disposition shall be paid in cash, (iii) Net Proceeds thereof are
applied as set forth in Section 2.6 hereof.
Promptly upon the request of the Borrower, the Agent shall take all
actions, at the cost and expense of the Borrower, necessary to release its
security interest in assets that are disposed of in compliance with this
Agreement.
7.3 CONSOLIDATIONS AND MERGERS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, merge, consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except:
(a) any Subsidiary may merge with the Borrower, provided that the
Borrower shall be the continuing or surviving corporation, or with any one or
more Subsidiaries; provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation; provided, further, no Subsidiary which
has Indebtedness permitted under Section 7.5(e) or Contingent Obligations
permitted under Section 7.8(d) shall merge with the Borrower or any other
Subsidiary of the Borrower; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Borrower or another
Subsidiary with respect to which the Borrower owns an equal or greater
percentage interest of the stock or other equity ownership interests.
7.4 LOANS AND INVESTMENTS
The Borrower shall not purchase or acquire, or suffer or permit any
Subsidiary to purchase or acquire, or make any commitment therefor, any capital
stock, equity interest, or any obligations or other securities of, or any
interest in, any Person, or make or commit to make any Acquisitions, or make or
commit to make any other Investment in, any Person including any Affiliate of
the Borrower, except for:
(a) Investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
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(c) subject to Section 7.14(d), extensions of credit by the
Borrower to any of its Subsidiaries or by any of its Subsidiaries to another of
its Subsidiaries;
(d) extensions of credit by the Borrower to any of its employees
in an individual amount for each employee not to exceed $250,000 at any one time
outstanding, in an aggregate amount for all such extensions of credit not to
exceed $1,000,000 at any one time outstanding, and in all cases having a
maturity no longer than eighteen (18) months; and
(e) Investments in connection with Acquisitions and Special
Investments to the extent the same are permitted under Section 7.14(d) and, if
both before and after giving effect thereto, no Default or Event of Default
exists would result therefrom;
provided, in the case of extensions of credit described in clauses (c) and (d)
above, such Indebtedness shall rank at least pari passu with all other
Indebtedness of the borrowing Person and shall be evidenced by a promissory note
(which in the case of clause (c) shall be a demand note) pledged by the Borrower
or the lending Subsidiary to the Agent, for the benefit of the Lenders.
7.5 LIMITATION ON INDEBTEDNESS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, create, incur, assume, suffer to exist, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 7.8;
(c) Indebtedness existing on the Closing Date and set forth in
Schedule 7.5;
(d) Indebtedness consisting of Subordinated Debt incurred after
the Closing Date;
(e) Indebtedness of a Subsidiary which was the subject of an
Acquisition permitted hereunder provided that such Indebtedness existed at the
time of such Acquisition and was not incurred in contemplation thereof;
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(f) Indebtedness incurred in connection with capital leases
permitted pursuant to Section 7.9(a) or Section 7.9(c) (without duplication of
the amounts permitted thereunder);
(g) Indebtedness secured by Liens permitted by Section 7.1(k);
(h) Indebtedness of the Borrower consisting of Contingent
Obligations in respect of Indebtedness permitted under Section 7.5(g) or in
connection with a capital lease permitted pursuant to Section 7.9(c); provided,
that the rental payments and amortization in respect thereof shall, for purposes
of determining compliance with the limits set forth in Sections 7.1(k) and
7.9(c) be treated as if payable by the Borrower; and
(i) Indebtedness consisting of extensions of credit permitted
under Sections 7.4(c).
7.6 TRANSACTIONS WITH AFFILIATES
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, enter into any transaction with any Affiliate of the Borrower, except upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than would obtain in a comparable arm's-length transaction with a Person not an
Affiliate of the Borrower or such Subsidiary; provided, that, such transactions
shall be permitted with respect to Wholly-Owned Subsidiaries so long as either
individually or in the aggregate such transactions could not reasonably be
expected to result in a Material Adverse Effect; provided, further, that such
transactions shall be permitted with respect to Subsidiaries (other than
Wholly-Owned Subsidiaries) so long as the aggregate value of all such
transactions does not exceed $2,000,000.
7.7 USE OF PROCEEDS
(a) The Borrower shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds, directly or indirectly, (i)
to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of the Borrower or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that is subject
to Section 13 or 14 of the Exchange Act.
(b) The Borrower shall not, directly or indirectly, use any portion of
the Loan proceeds (i) knowingly to purchase Ineligible Securities from the
Arranger during any period in which the Arranger makes a market in such
Ineligible Securities, (ii) knowingly to purchase during the underwriting or
placement period Ineligible
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Securities being underwritten or privately placed by the Arranger, or (iii) to
make payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger and issued by or for the benefit of the
Borrower or any Affiliate of the Borrower. The Arranger is a registered
broker-dealer and permitted to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
7.8 CONTINGENT OBLIGATIONS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, create, incur, assume or suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course
of business;
(b) Swap Contracts entered into in the ordinary course of
business for companies similarly situated as the Borrower as bona fide hedging
transactions including, without limitation, the Swap Contracts required under
Section 6.13;
(c) Contingent Obligations of the Borrower and its Subsidiaries
existing as of the Closing Date and listed in Schedule 7.8;
(d) without duplication of the amounts permitted under Section
7.5(e), Contingent Obligations of a Subsidiary which was the subject of an
Acquisition permitted hereunder provided that such Contingent Obligations
existed at the time of such Acquisition and were not incurred in contemplation
thereof; and
(e) without duplication of the amounts permitted under Section
7.5(h), Contingent Obligations of the Borrower in respect of Indebtedness of the
type described therein, subject in any case to the limits described therein.
7.9 LEASE OBLIGATIONS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, create or suffer to exist any obligations for the payment of rent for any
property under lease or agreement to lease, except for:
(a) leases of the Borrower and of Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
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(b) operating leases entered into by the Borrower or any
Subsidiary after the Closing Date in the ordinary course of business for
companies similarly situated as the Borrower;
(c) capital leases other than those permitted under clause (a) of
this Section, entered into by the Borrower or any Subsidiary after the Closing
Date to finance the acquisition of equipment; provided that the aggregate annual
amount of rental payments for all such capital leases as required (or elected by
the Borrower) to be stated per GAAP in its cash flow statements as amortization,
together with, without duplication, the aggregate principal amortization in
respect of Indebtedness permitted under Section 7.5(f) shall not exceed in any
fiscal year, $5,000,000.
7.10 RESTRICTED PAYMENTS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares of
any class of its capital stock, or purchase, redeem or otherwise acquire for
value any shares of its capital stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding; except that (a) the Borrower
may declare and make dividend payments, stock splits, or other distributions
payable solely in its common stock, (b) the Borrower may purchase or redeem
stock of the Borrower from former employees who acquired the stock pursuant to
an option plan of the Borrower but with respect to which the former employee's
rights to such stock are not vested, (c) Subsidiaries of the Borrower which are
organized as limited liability companies or as limited partnerships may, if no
Default or Event of Default then exists or would result therefrom, declare and
make the minimum amount of annual dividends and distributions necessary in order
for the partners or members thereof, as the case may be, to satisfy the tax
liability accruing to such partners or members, in respect of the net income of
such Subsidiary and (d) in addition to the foregoing, the Borrower and its
Subsidiaries may declare and pay dividends and distributions, and to consummate
purchases and redemptions, in an aggregate annual amount not to exceed
$1,000,000 provided that no Default or Event of Default exists or would result
therefrom.
7.11 ERISA
The Borrower shall not, and shall not suffer or permit any of its ERISA
Affiliates to: (a) engage in a nonexempt prohibited transaction or violation of
ERISA's fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably expected to result in liability of the Borrower in
an aggregate amount in excess of $1,000,000; or (b) engage in a transaction that
could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.
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7.12 CHANGE IN BUSINESS
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, engage in any material line of business substantially different from lines
of business primarily relating to sales and distribution of goods and services
over the Internet and similar electronic media; it being understood that
Subsidiaries may engage in material lines of business with respect to goods and
services ancillary or substantially related to the foregoing.
7.13 ACCOUNTING CHANGES
The Borrower shall not, and shall not suffer or permit any Subsidiary
to, make any material change in accounting treatment or reporting practices,
except as required by GAAP, or change the fiscal year of the Borrower or of any
Subsidiary (except, in the case of Subsidiaries, to the extent necessary for
such Subsidiaries' fiscal year and application of GAAP to be consistent with
that of the Borrower).
7.14 FINANCIAL COVENANTS
(a) Minimum Cash Balance. The Borrower shall maintain at all times a
minimum balance of readily available unencumbered cash and Cash Equivalents on
deposit in deposit or similar accounts at least equal to the Required Cash
Balance.
(b) EBITDA/Negative EBITDA Covenant. The Borrower's EBITDA, measured at
end of the first fiscal quarter of 1998 for the quarter then ended, at the end
of the second fiscal quarter of 1998 for the two consecutive fiscal quarters
then ended, at the end of the third fiscal quarter of 1998 for the three
consecutive fiscal quarters then ended, and at each quarter end thereafter for
the three consecutive quarters then ended shall not be less than the amounts
indicated below for such quarter end (and, if expressed as a deficit, the
Borrower's EBITDA loss shall not be greater than the amount indicated below for
the relevant period):
[ * ]
provided that for purposes hereof, "EBITDA" shall be determined without
reduction for non-cash charges consisting of expenses recognized with respect to
goodwill, intangibles, and purchased research and development related to
Acquisitions permitted hereunder and accounted for during the relevant measuring
period.
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[ * ] Confidential Treatment Requested
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(c) Maximum Payable Days. As of the end of each fiscal quarter, the
product of (i) the quotient of (A) the accounts payable (excluding accounts
payable in respect of general administration and marketing to the extent not
included in cost of goods sold as reported per GAAP) of the Borrower as of the
end of such fiscal quarter divided by (B) the product of (I) the cost of goods
sold as reported per GAAP by the Borrower for such fiscal quarter and to be
disclosed in financials to be filed with the SEC times (II) 4 times (ii) 365,
shall be equal to or less than 100.
(d) Capital Expenditures/Acquisitions. (i) Without duplication, the
aggregate capital expenditures made, Acquisitions consummated, and Special
Investments made pursuant to Section 7.4(e), by the Borrower and its
Subsidiaries, shall not exceed in any fiscal year the Capital Expenditure
Component plus [ * ] (excluding any Equity Consideration paid in connection
therewith). (ii) Capital expenditures (excluding Acquisitions) made by the
Borrower and its Subsidiaries, in the aggregate, in any fiscal year, shall not
exceed the Capital Expenditure Component for such fiscal year; (iii) The
aggregate amount, without duplication, of Acquisitions consummated and Special
Investments made by the Borrower and its Subsidiaries in the aggregate for any
fiscal year shall not exceed [ * ]; it being understood that the use of common
stock, $0.01 par value, of the Borrower, to consummate Acquisitions shall not be
limited (including as specified in the parenthetical clause at the end of
subsection (d)(i) above).
7.15 SUBORDINATED DEBT
Not, and not permit any of its Subsidiaries to:
(a) subject to clause (c) below, make any payment (whether of
principal, interest or otherwise) on any Subordinated Debt on any day other than
the stated, scheduled date for such payment set forth in the documents and
instruments evidencing such Subordinated Debt (which shall in all cases for
principal be at least 45 days later than the Maturity Date);
(b) make any payment on any Subordinated Debt in contravention or
violation of the subordination provisions thereof; or
(c) prepay, redeem, purchase or defease any Subordinated Debt, or
make any deposit for any of the foregoing purposes; or
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[ * ] Confidential Treatment Requested
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(d) enter into any amendment or modification of any Subordinated
Debt.
7.16 NON-MATERIAL SUBSIDIARIES
The Borrower shall not permit (i) the total (gross) revenues of all
Non-Material Subsidiaries in the aggregate for the preceding four fiscal quarter
period to exceed [ * ] of total (gross) revenues of the Borrower and all its
Subsidiaries for such period or (ii) total assets, as of the last day of the
preceding fiscal quarter, with a net book value in excess of [ * ] of the total
net book value of total assets of the Borrower and all its Subsidiaries, in each
case, based upon the Borrower's most recent annual or quarterly financial
statements delivered to the Agent under Section 6.1; provided, that the Borrower
shall have the power to designate in writing to the Agent any Non-Material
Subsidiary as a Material Subsidiary, subject to all provisions in this Agreement
concerning Material Subsidiaries, (within three days of determining
non-compliance with this Section 7.16) for the purposes of complying with this
Section 7.16; provided further any Subsidiary which is acquired or formed in
connection with a permitted Acquisition or otherwise has been a Subsidiary of
the Borrower for less than four fiscal quarters shall, for purposes of the
foregoing tests, include its financial results for the relevant fiscal quarters
(i.e., those necessary to report four fiscal quarters of revenues) prior to
becoming a Subsidiary of the Borrower, as if such Subsidiary had become a
Subsidiary of the Borrower at the beginning of such four fiscal quarter period.
Subject to the foregoing and delivery of the certificate called for in Section
6.2, the Borrower may from time to time designate Subsidiaries as Non-Material
Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 EVENT OF DEFAULT
Any of the following shall constitute an "Event of Default":
(a) Non-Payment. The Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within
5 days after the same becomes due, any interest, fee or any other amount payable
hereunder or under any other Loan Document; or
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[ * ] Confidential Treatment Requested
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(b) Representation or Warranty. Any representation or warranty by
the Borrower or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Borrower, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. (i) The Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section 6.1, 6.2,
6.3, or 6.6 or in Article VII other than Sections 7.6 and 7.13; provided,
failure to promptly notify the Agent of a non-material Default shall not
constitute an Event of Default if the underlying event giving rise to such
Default has been cured or waived; or (ii) the Borrower fails to perform or
observe any term, covenant or agreement contained in Section 6.9 and such
default shall continue unremedied for a period of 3 days; or
(d) Other Defaults. The Borrower or any Subsidiary party thereto
fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue unremedied
for a period of 20 days (or such longer period of time of not more than 45 days
as is reasonably necessary to cure provided that the Borrower is diligently
pursuing a cure and then only if the cure can reasonably be effected during such
extended period) after the earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or (ii) the date
upon which written notice thereof is given to the Borrower by the Agent or any
Lender; provided in the case of Warrants, such default shall exist with respect
to or be asserted by, a holder thereof which is a Lender or an Affiliate of a
Lender; or
(e) Cross-Default. The Borrower or any Subsidiary (i) fails to
make any payment in respect of any Indebtedness or Contingent Obligation having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $1,000,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure; or (ii) fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure, if the effect of such failure, event or condition is
to cause, or to permit the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Indebtedness (or a trustee or agent on behalf of
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such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or such Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; provided, in the case of undrawn committed facilities
which have not been terminated by the parties (other than the Borrower or its
Subsidiaries) thereto, the Borrower shall have ten (10) days to either cure the
underlying default or terminate such facility; or
(f) Insolvency; Voluntary Proceedings. The Borrower or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Borrower or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Borrower's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the Borrower or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Borrower or any Subsidiary acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a substantial portion
of its property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$1,000,000; or (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds $1,000,000; or (iii) the Borrower or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $1,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Borrower
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or any Subsidiary involving in the aggregate a liability (i) (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage) as to any single or related series of transactions, incidents
or conditions, of $2,000,000 or more, or (ii) as to any single or related series
of transactions, incidents or conditions, of $10,000,000 or more (whether or not
covered by third-party insurance as to which the insurer does not dispute
coverage), and the same shall remain unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Borrower or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Change of Control. There occurs any Change of Control which
shall have continued for three (3) days; or
(l) Adverse Change. There occurs a Material Adverse Effect; or
(m) Invalidity of Subordination Provisions. The subordination
provisions of any agreement or instrument governing any Subordinated Debt is for
any reason revoked or invalidated, or otherwise cease to be in full force and
effect, the Borrower, its shareholders, or their Affiliates contest in any
manner the validity or enforceability thereof or denies that it has any further
liability or obligation thereunder, or the Indebtedness hereunder is for any
reason subordinated or does not have the priority contemplated by this Agreement
or such subordination provisions; or
(n) Collateral.
(i) (A) Any provision of any Collateral Document shall for
any reason cease to be valid and binding on or enforceable in any material
respect against the Borrower or any Subsidiary party thereto (other than
Non-Material Subsidiaries which do not have any material Collateral) or (B) the
Borrower or any Subsidiary shall state that any provision of any Collateral
Document shall for any reason cease to be valid and binding on or enforceable
against the Borrower or any Subsidiary party thereto in writing or bring an
action to limit its obligations or liabilities thereunder; or
(ii) any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid security interest in
the Collateral purported to be covered thereby or such security interest shall
for any reason cease to
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be a perfected and first priority security interest with respect to any material
item of collateral subject only to Permitted Liens.
8.2 REMEDIES
If any Event of Default occurs, the Agent shall, at the request of, or
may, with the consent of, the Required Lenders,
(a) if the Closing Date has not occurred, declare the commitment
of each Lender to make Loans to be terminated, whereupon such commitments shall
be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Agent or
any Lender.
8.3 RIGHTS NOT EXCLUSIVE
The rights provided for in this Agreement and the other Loan Documents
are cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.
8.4 CERTAIN FINANCIAL COVENANT DEFAULTS
In the event that, after taking into account any extraordinary charge to
earnings taken or to be taken as of the end of any fiscal period of the Borrower
(a "Charge"), and if solely by virtue of such Charge, there would exist an Event
of Default due to the breach of any of Section 7.14(b) as of such fiscal period
end date, such Event of Default shall be deemed to arise upon the earlier of (a)
the date after such fiscal period end date on which the Borrower announces
publicly it will take, is taking or
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has taken such Charge (including an announcement in the form of a statement in a
report filed with the SEC) or, if such announcement is made prior to such fiscal
period end date, the date that is such fiscal period end date, and (b) the date
the Borrower delivers to the Agent its audited annual or unaudited quarterly
financial statements in respect of such fiscal period reflecting such Charge as
taken.
8.5 NON-MATERIAL SUBSIDIARIES
Notwithstanding any provision hereof to the contrary, any non-compliance
by a Non-Material Subsidiary (or the failure of the Borrower to cause a
Non-Material Subsidiary to comply) with, or the occurrence with respect to, the
provisions of Sections 5.16, 5.19, 6.7, 8.1(f) and 8.1(g) shall not constitute
an Event of Default unless such non-compliance could reasonably be expected to
have a Material Adverse Effect.
8.6 ACQUIRED SUBSIDIARIES
Notwithstanding anything contained in Section 8.1(b) to the contrary,
the failure of any representation or warranty contained herein or any of the
Loan Documents with respect to any Subsidiary which was acquired pursuant to an
Acquisition permitted hereunder to be correct in all material respects on or as
of the date made or deemed made, which failure relates solely to events,
circumstances or conditions occurring or existing prior to such Acquisition,
shall not constitute a Default or Event of Default hereunder if the aggregate
liability or impairment to Collateral which could reasonably be expected to
result from all such failures does not exceed $2,000,000.
ARTICLE IX
THE AGENT
9.1 APPOINTMENT AND AUTHORIZATION
Each Lender hereby irrevocably (subject to Section 9.9) appoints,
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants,
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functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent.
9.2 DELEGATION OF DUTIES
The Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects with reasonable care.
9.3 LIABILITY OF AGENT
None of the Agent-Related Persons shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary or Affiliate
of the Borrower, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or for the value of or title to
any Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Borrower or any of the Borrower's Subsidiaries or Affiliates.
9.4 RELIANCE BY AGENT
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems
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appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.1, each Lender that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender.
9.5 NOTICE OF DEFAULT
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the Agent
for the account of the Lenders, unless the Agent shall have received written
notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default." The Agent will notify the Lenders of its receipt of any such notice.
The Agent shall take such action with respect to such Default or Event of
Default as may be requested by the Required Lenders in accordance with Article
VIII; provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
9.6 CREDIT DECISION
Each Lender acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it, and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender. Each Lender represents to the Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower and
its Subsidiaries, the value of and title to any Collateral, and all applicable
bank regulatory laws relating to the transactions
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contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the Agent,
the Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of any of the Agent-Related Persons.
9.7 INDEMNIFICATION OF AGENT
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrower and without limiting the obligation
of the Borrower to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to the Agent-Related Persons of any portion of such Indemnified Liabilities
resulting solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender shall reimburse the Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.8 AGENT IN INDIVIDUAL CAPACITY
Deutsche Bank and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and its Subsidiaries and Affiliates as
though Deutsche Bank were not the Agent hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Deutsche Bank or its Affiliates may
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receive information regarding the Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Borrower or such Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans,
Deutsche Bank shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" include Deutsche Bank in its individual capacity.
9.9 SUCCESSOR AGENT
The Agent may, and at the request of the Required Lenders shall, resign
as Agent upon 30 days' notice to the Lenders. If the Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders which successor agent shall, if no Default or Event of
Default then exists, be approved by the Borrower. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Borrower, a successor
agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article IX and Sections 10.4 and 10.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided
for above.
9.10 WITHHOLDING TAX
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Lender agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS Forms
1001 and W-8 before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
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(ii) if such Lender claims that interest paid under this Agreement
is exempt from United States withholding tax because it is effectively connected
with a United States trade or business of such Lender, two properly completed
and executed copies of IRS Form 4224 before the payment of any interest is due
in the first taxable year of such Lender and in each succeeding taxable year of
such Lender during which interest may be paid under this Agreement, and IRS Form
W-9; and
(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from, or reduction
of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Borrower to such Lender, such Lender agrees to notify the
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of the Borrower to such Lender. To the extent of such percentage
amount, the Agent will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the Obligations of the Borrower to
such Lender, such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction
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of, withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by the
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the Agent under this
Section, together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
9.11 COLLATERAL MATTERS
(a) The Agent is authorized on behalf of all the Lenders, without the
necessity of any notice to or further consent from the Lenders, from time to
time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain perfected the security
interest in and Liens upon the Collateral granted pursuant to the Collateral
Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment in full of all
Loans and all other Obligations known to the Agent and payable under this
Agreement or any other Loan Document; (ii) constituting property sold or to be
sold or disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting property in which the Borrower or any Subsidiary
owned no interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to the Borrower or any Subsidiary under a
lease which has expired or been terminated in a transaction permitted under this
Agreement or is about to expire and which has not been, and is not intended by
the Borrower or such Subsidiary to be, renewed or extended; (v) consisting of an
instrument evidencing Indebtedness or other debt instrument, if the indebtedness
evidenced thereby has been paid in full; or (vi) if approved, authorized or
ratified in writing by the Required Lenders or all the Lenders, as the case may
be, as provided in subsection 10.1(f). Upon request by the Agent at any time,
the Lenders will confirm in writing the Agent's authority to release particular
types or items of Collateral pursuant to this subsection 9.11(b).
(c) Each Lender agrees with and in favor of each other (which agreement
shall not be for the benefit of the Borrower or any Subsidiary) that the
Borrower's obligation to such Lender under this Agreement and the other Loan
Documents is not and shall not be secured by any real property collateral now or
hereafter acquired by such Lender.
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ARTICLE X
MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent with respect to any departure by the Borrower or
any applicable Subsidiary therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders (or by the Agent at the written
request of the Required Lenders) and the Borrower and acknowledged by the Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Lenders and the Borrower and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.2), unless such Lender has
consented thereto in writing;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment (including without limit mandatory
prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder; or
(e) amend the definition of "Required Lenders," this Section, or
Section 2.13, or any provision herein providing for consent or other action by
all Lenders; or
(f) release any material portion of the Collateral except as
otherwise may be provided in a Loan Document or except where the consent of the
Required Lenders only is specifically provided for;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Agent under this
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Agreement or any other Loan Document, and (ii) the Commitment Letter may be
amended, or rights or privileges thereunder waived, in a writing executed by the
parties thereto.
10.2 NOTICES
(a) All notices, requests and other communications shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by the Borrower by facsimile
(i) shall be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 10.2, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on Schedule 10.2; or, as
directed to the Borrower or the Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or IX shall not be effective until actually
received by the Agent.
(c) Any agreement of the Agent and the Lenders herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Borrower. The Agent and the Lenders shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the Borrower
to give such notice and the Agent and the Lenders shall not have any liability
to the Borrower or other Person on account of any action taken or not taken by
the Agent or the Lenders in reliance upon such telephonic or facsimile notice.
The obligation of the Borrower to repay the Loans shall not be affected in any
way or to any extent by any failure by the Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Agent and the Lenders of a confirmation which is at variance with the terms
understood by the Agent and the Lenders to be contained in the telephonic or
facsimile notice.
10.3 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the
Agent or any Lender, any right, remedy, power or
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privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.4 COSTS AND EXPENSES
The Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Deutsche Bank (including in its capacity as Agent)
within five Business Days after demand (subject to subsection 4.1(e)) for all
reasonable costs and expenses incurred by Deutsche Bank (including in its
capacity as Agent) in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by Deutsche Bank
(including in its capacity as Agent) with respect thereto, but excluding
printing, duplicating, mailing and travel costs related to the syndication of
the Loans; and
(b) pay or reimburse the Agent, the Arranger and each Lender
within five Business Days after demand (subject to subsection 4.1(e)) for all
costs and expenses (including reasonable Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding); and
(c) pay or reimburse Deutsche Bank (including in its capacity as
Agent) within five Business Days after demand (subject to subsection 4.1(e)) for
all appraisal (including the allocated cost of internal appraisal services),
audit, environmental inspection and review (including the allocated cost of such
internal services), search and filing costs, fees and expenses, incurred or
sustained by Deutsche Bank (including in its capacity as Agent) in connection
with the matters referred to under subsections (a) and (b) of this Section.
10.5 BORROWER INDEMNIFICATION
(a) Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify, defend and hold the Agent-Related Persons, and
each Lender and each of its respective officers, directors, employees, counsel,
agents and
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attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
reasonable Attorney Costs) of any kind or nature whatsoever which may at any
time (including at any time following repayment of the Loans and the
termination, resignation or replacement of the Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Borrower shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting solely from the gross negligence or willful
misconduct of or from a breach of contract by such Indemnified Person. The
agreements in this Section shall survive payment of all other Obligations.
(c) Survival; Defense. The obligations in this Section shall survive
payment of all other Obligations. At the election of any Indemnified Person, the
Borrower shall defend such Indemnified Person using legal counsel reasonably
satisfactory to such Indemnified Person in such Person's sole discretion, at the
sole cost and expense of the Borrower. All amounts owing under this Section
shall be paid within 30 days after demand.
10.6 MARSHALLING; PAYMENTS SET ASIDE
Neither the Agent nor the Lenders shall be under any obligation to
marshall any assets in favor of the Borrower or any other Person or against or
in payment of any or all of the Obligations. To the extent that the Borrower
makes a payment to the Agent or the Lenders, or the Agent or the Lenders
exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Agent upon demand its pro rata share of any amount so recovered from or
repaid by the Agent.
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10.7 SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the Agent
and each Lender.
10.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Lender may, with the written consent of the Agent and the
Borrower which shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
the Agent or the Borrower shall be required in connection with any assignment
and delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender or to another Lender; provided, further, no Borrower consent shall be
required if there is a continuing Default or an Event of Default) (each an
"Assignee") all, or any ratable part of all, of the Loans, the Commitments and
the other rights and obligations of such Lender hereunder, in a minimum amount
of $5,000,000; provided, however, that the Borrower and the Agent may continue
to deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Agent by such Lender and
the Assignee; (ii) such Lender and its Assignee shall have delivered to the
Borrower and the Agent an Assignment and Acceptance in the form of Exhibit D
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment and (iii) the assignor Lender or Assignee has paid to the Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor Lender
that the proposed assignee is an approved Eligible Assignee (to the extent
approval is necessary), that it has received (and provided its consent with
respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent
that it has received an executed Assignment and Acceptance and payment of the
processing
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fee, the Borrower shall execute and deliver to the Agent, new Notes evidencing
such Assignee's assigned Loans and Commitment and, if the assignor Lender has
retained a portion of its Loans and its Commitment, replacement Notes in the
principal amount of the Loans retained by the assignor Lender (such Notes to be
in exchange for, but not in payment of, the Notes held by such Lender).
Immediately upon each Assignee's making its processing fee payment under the
Assignment and Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Borrower and the Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, (iv) no Lender
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders as
described in the first proviso to Section 10.1, and (v) each such participation
shall be in an aggregate principal amount of at least $3,000,000 (or such lesser
amount as shall equal the portion of the originating Lender's Loans for which
participating interests have not been sold hereunder). In the case of any such
participation, the Participant shall be entitled to the benefit of Sections 3.1,
3.3 and 10.5 as though it were also a Lender hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31
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CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
10.9 CONFIDENTIALITY
Agent and each Lender agree to take and to cause their Affiliates to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Borrower as well as information that, given its nature, should reasonably be
believed by such Persons to be confidential, provided to them by the Borrower or
any Subsidiary, or by the Agent on such Borrower's or Subsidiary's behalf, under
this Agreement or any other Loan Document. Neither the Agent, the Lender nor any
of their Affiliates shall use any such information other than in connection with
or in enforcement of this Agreement and the other Loan Documents or to the
extent such information (i) was or becomes generally available to the public
other than as a result of disclosure by the Agent, such Lender, or their
respective Affiliate or (ii) was or becomes available on a non-confidential
basis from a source other than the Borrower or a Subsidiary, provided that such
source is not bound by a confidentiality agreement with the Borrower or a
Subsidiary known to the Agent, such Lender, or their respective Affiliate;
provided, however, that the Agent, any Lender, or any of their respective
Affiliates may disclose such information at the request or pursuant to any
requirement of any Governmental Authority to which the Lender is subject or in
connection with an examination of such Lender by any such authority (with
subsequent notice thereof promptly given to the Borrower) or, after having given
notice to the Borrower (unless such notice is prohibited by law) and reasonable
opportunity, in light of the circumstances, for the Borrower to obtain a
confidentiality agreement or a protective order (substantively similar to the
requirements herein), as appropriate, (A) pursuant to subpoena or other court
process; (B) when required to do so in accordance with the provisions of any
applicable Requirement of Law; (C) to the extent reasonably required in
connection with any litigation or proceeding to which the Agent, any Lender or
their respective Affiliates may be party; (D) to the extent reasonably required
in connection with the exercise of any remedy hereunder or under any other Loan
Document; provided, further, that the Agent, any Lender, or any of their
respective Affiliates may disclose such information (W) to such Lender's
independent auditors and other professional advisors; (X) to any Participant or
Assignee, actual or potential, provided that such Person agrees in writing for
the express benefit of the Borrower to keep such information confidential to the
same extent required of the Lenders hereunder; (Y) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower or any Subsidiary is
party or is deemed party with such Lender or such Affiliate; and (Z) to its
Affiliates; however, in each of the
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foregoing clauses (W) through (Z), (i) the agreement referred to in clause (Y)
is made for the express benefit of the Borrower; (ii) disclosure to any Person
is prohibited unless the Agent or such Lender believes in good faith that such
Person is not a competitor of the Borrower; and (iii) any disclosure made in
accordance with the foregoing clauses (W) through (Z) is made to Persons only on
a need-to-know basis.
10.10 SET-OFF
In addition to any rights and remedies of the Lenders provided by law,
if an Event of Default exists or the Loans have been accelerated, each Lender is
authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Borrower against any and all Obligations owing to such Lender,
now or hereafter existing, irrespective of whether or not the Agent or such
Lender shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify the Borrower and the Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.11 AUTOMATIC DEBITS OF FEES
With respect to any arrangement fee, underwriting fee or other fee, or
any other cost or expense (including Attorney Costs) due and payable to the
Agent, Deutsche Bank or the Arranger under the Loan Documents, the Borrower
hereby irrevocably authorizes Deutsche Bank to debit any deposit account of the
Borrower with Deutsche Bank in an amount such that the aggregate amount debited
from all such deposit accounts does not exceed such fee or other cost or
expense. If there are insufficient funds in such deposit accounts to cover the
amount of the fee or other cost or expense then due, such debits will be
reversed (in whole or in part, in Deutsche Bank's sole discretion) and such
amount not debited shall be deemed to be unpaid. No such debit under this
Section shall be deemed a set-off.
10.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC.
Each Lender shall notify the Agent in writing of any changes in the
address to which notices to the Lender should be directed, of addresses of any
Lending Office, of payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as the Agent shall
reasonably request.
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10.13 COUNTERPARTS
This Agreement may be executed in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument.
10.14 SEVERABILITY
The illegality or unenforceability of any provision of this Agreement or
any instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.15 NO THIRD PARTIES BENEFITED
This Agreement is made and entered into for the sole protection and
legal benefit of the Borrower, the Lenders, the Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no other Person shall
be a direct or indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with, this Agreement or any of the other
Loan Documents.
10.16 GOVERNING LAW AND JURISDICTION
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND
THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT AND THE LENDERS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE AGENT AND THE LENDERS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE AGENT AND
THE
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LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
10.17 WAIVER OF JURY TRIAL
THE BORROWER, THE LENDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 ENTIRE AGREEMENT
This Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding among the Borrower, the Lenders and the
Agent, and supersedes all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
[Signature page(s) follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
AMAZON.COM, INC.
By: Joy D. Covey
------------------------------------
Title: Chief Financial Officer
---------------------------------
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent
By: Ira Lubinsk
------------------------------------
Title: Vice President
---------------------------------
By: Inken S. Finnamore
------------------------------------
Title: Assistant Vice President
---------------------------------
DEUTSCHE BANK AG, NEW YORK BRANCH AND CAYMAN
ISLANDS BRANCH, as a Bank
By: William W. McGinty
------------------------------------
Title: Director
---------------------------------
By: Ira Lubinsky
------------------------------------
Title: Vice President
---------------------------------
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VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME
TRUST, as a Lender
By: Jeffery W. Maillet
----------------------------------
Title: Sr. Vice President & Director
-------------------------------
By:
----------------------------------
Title:
-------------------------------
BANKBOSTON N.A., as a Bank
By: David B. Herter
----------------------------------
Title: Managing Director
-------------------------------
By:
----------------------------------
Title:
-------------------------------
BANQUE PARIBAS, as a Bank
By: Nanci Meyer
-------------------------------
Title: Vice President
----------------------------
By: [signature illegible]
-------------------------------
Title: Director
----------------------------
SILICON VALLEY BANK, as a Bank
By: Laurita J. Hernandez
-------------------------------
Title: Vice President
----------------------------
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By:___________________________________
Title:________________________________
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