<PAGE>
Exhibit 10.1
EXECUTION COPY
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SUBORDINATED BRIDGE LOAN AGREEMENT
Dated as of January 23, 2004
among
ALDERWOODS GROUP, INC.,
as the Borrower,
BANC OF AMERICA BRIDGE LLC,
as Administrative Agent and Initial Bridge Lender
and
The Other Bridge Lenders Party Hereto
BANC
OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
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Section
Page
ARTICLE I
DEFINITIONS, ACCOUNTING AND OTHER TERMS AND REFERENCES
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1.01 DEFINED
TERMS...........................................................................................1
1.02 OTHER
INTERPRETIVE
PROVISIONS..........................................................................19
1.03 ACCOUNTING
TERMS.......................................................................................20
1.04 REFERENCES TO
AGREEMENTS AND LAWS; INCORPORATION BY
REFERENCE..........................................20
1.05 TIMES OF
DAY...........................................................................................21
1.06
ROUNDING...............................................................................................21
ARTICLE II
THE BRIDGE COMMITMENTS AND CREDIT EXTENSIONS
2.01 THE BRIDGE
LOANS.......................................................................................22
2.02 BORROWINGS,
CONVERSIONS AND CONTINUATIONS OF BRIDGE
LOANS..............................................22
2.03
PREPAYMENTS............................................................................................23
2.04 TERMINATION OR
REDUCTION OF BRIDGE
COMMITMENTS.........................................................24
2.05 REPAYMENT OF
BRIDGE
LOANS..............................................................................25
2.06
INTEREST...............................................................................................25
2.07
FEES...................................................................................................25
2.08 COMPUTATION OF
INTEREST AND
FEES.......................................................................25
2.09 EVIDENCE OF
INDEBTEDNESS...............................................................................26
2.10 PAYMENTS
GENERALLY.....................................................................................26
2.11 SHARING OF
PAYMENTS....................................................................................28
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES,
YIELD PROTECTION AND
ILLEGALITY PROVISIONS
IN THE SENIOR CREDIT AGREEMENT INCORPORATED BY
REFERENCE..............................................................................................29
Article IV
CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION
4.01 CONDITIONS OF
INITIAL CREDIT
EXTENSION.................................................................29
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 EXISTENCE,
QUALIFICATION AND POWER; COMPLIANCE WITH
LAWS...............................................32
5.02 AUTHORIZATION;
NO
CONTRAVENTION........................................................................32
5.03 GOVERNMENTAL
AUTHORIZATION; OTHER
CONSENTS.............................................................32
5.04 BINDING
EFFECT.........................................................................................33
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5.05 FINANCIAL
STATEMENTS; NO MATERIAL ADVERSE
EFFECT.......................................................33
5.06 NO
DEFAULT.............................................................................................34
5.07
SOLVENCY...............................................................................................34
5.08 SENIOR CREDIT
AGREEMENT................................................................................34
5.09 REDEMPTION OF
SUBORDINATED
NOTES.......................................................................34
ARTICLE VI
COVENANTS
6.01 COVENANTS IN THE
SENIOR CREDIT AGREEMENT INCORPORATED BY
REFERENCE.....................................34
6.02 USE OF
PROCEEDS........................................................................................36
6.03 COVENANT TO
GUARANTEE OBLIGATIONS; NEW
SUBSIDIARIES....................................................36
6.04 FURTHER
ASSURANCES.....................................................................................37
6.05
ANTI-LAYERING..........................................................................................37
6.06 SENIOR CREDIT
AGREEMENT................................................................................37
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
7.01 EVENTS OF
DEFAULT......................................................................................37
7.02 REMEDIES UPON
EVENT OF
DEFAULT.........................................................................40
7.03 APPLICATION OF
FUNDS...................................................................................40
ARTICLE VIII
AGENTS
8.01 AGENCY
PROVISIONS IN THE SENIOR CREDIT AGREEMENT INCORPORATED BY
REFERENCE.............................41
ARTICLE IX
SUBORDINATION
9.01 AGREEMENT TO
SUBORDINATE SUBORDINATED INDEBTEDNESS TO SENIOR
INDEBTEDNESS..............................41
9.02 PAYMENT OF
PROCEEDS UPON INSOLVENCY,
ETC...............................................................41
9.03 NO PAYMENT WHEN
SENIOR INDEBTEDNESS IN
DEFAULT.........................................................42
9.04 SUBROGATION TO
RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS................................................43
9.05 PROVISIONS
SOLELY TO DEFINE RELATIVE
RIGHTS............................................................44
9.06 ADMINISTRATIVE
AGENT TO EFFECTUATE
SUBORDINATION.......................................................44
9.07 NO WAIVER OF
SUBORDINATION
PROVISIONS..................................................................44
9.08 NOTICE TO
ADMINISTRATIVE
AGENT.........................................................................45
9.09 RELIANCE ON
JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.........................................46
9.10 ADMINISTRATIVE
AGENT NOT FIDUCIARY FOR BRIDGE
LENDERS..................................................46
9.11 RIGHTS OF
ADMINISTRATIVE AGENT
AS HOLDER OF SENIOR
INDEBTEDNEESS;
INDEBTEDNESS;
PRESERVATION OF
ADMINISTRATIVE AGENT'S
RIGHTS..........................................................................46
9.12 AUTHORIZATION TO
FILE CLAIMS;
REINSTATEMENT OF
SUBORDINATION..........................................47
9.13 NO SUSPENSION OF
REMEDIES..............................................................................47
9.14
MISCELLANEOUS..........................................................................................47
</TABLE>
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ARTICLE X
GUARANTY
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10.01 THE
GUARANTY...........................................................................................49
10.02 GUARANTY
ABSOLUTE......................................................................................50
10.03 WAIVERS AND
ACKNOWLEDGMENTS............................................................................51
10.04
SUBROGATION............................................................................................52
10.05 PAYMENTS FREE AND
CLEAR OF TAXES,
ETC..................................................................52
10.06 REPRESENTATIONS AND
WARRANTIES OF THE
GUARANTORS.......................................................53
10.07 GUARANTY
SUPPLEMENTS...................................................................................53
10.08 SUBORDINATION OF
GUARANTY..............................................................................53
10.09 CONTINUING GUARANTY;
ASSIGNMENTS.......................................................................53
10.10 LIMITATION ON
LIABILITY................................................................................54
ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENTS,
ETC........................................................................................54
11.02 NO WAIVER; CUMULATIVE
REMEDIES.........................................................................55
11.03 ATTORNEY COSTS,
EXPENSES AND
TAXES.....................................................................55
11.04 INDEMNIFICATION BY THE
BORROWER........................................................................56
11.05 PAYMENTS SET
ASIDE.....................................................................................57
11.06 SUCCESSORS AND
ASSIGNS.................................................................................57
11.07 MISCELLANEOUS
PROVISIONS OF THE SENIOR CREDIT AGREEMENT INCORPORATED BY
REFERENCE......................61
11.08 GOVERNING
LAW..........................................................................................61
11.09 BINDING
EFFECT.........................................................................................61
11.10 WAIVER OF RIGHT TO
TRIAL BY
JURY.......................................................................61
11.11 USA PATRIOT ACT
NOTICE.................................................................................62
SIGNATURES.....................................................................................................S-1
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ANNEXES
A
Group A Guarantors
B
Group B Guarantors
SCHEDULES
2.01
Bridge Commitments and Pro Rata Shares
10.02
Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A
Committed Loan Notice
B
Bridge Note
C
Assignment and Assumption
D
Compliance Certificate
E
Opinion Matters -- Counsel to Loan Parties
F
Senior Credit Agreement
G Guaranty
Supplement
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<PAGE>
SUBORDINATED BRIDGE LOAN AGREEMENT
This SUBORDINATED BRIDGE LOAN AGREEMENT ("AGREEMENT") is
entered into as of January 23, 2004, among
ALDERWOODS GROUP, INC., a Delaware
corporation (the "BORROWER"), each lender
from time to time party hereto
(collectively, the "BRIDGE LENDERS" and
individually, a "BRIDGE LENDER"), BANC
OF AMERICA BRIDGE LLC, as administrative
agent (in such capacity, the
"ADMINISTRATIVE AGENT") and Initial Bridge
Lender and Banc of America Securities
LLC, as sole lead arranger and sole book
manager (the "ARRANGER").
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Bridge Lenders lend up
to $25,000,000 to the Borrower to enable
the Borrower to repay all of the
Indebtedness (as hereinafter defined)
outstanding in respect of 12 1/4%
convertible unsecured subordinated notes of
the Borrower due 2012 (the
"SUBORDINATED NOtes") (the repayment of the
Subordinated Notes with the proceeds
of Bridge Borrowings under this Agreement
being referred to herein as the
"REFINANCING").
(2) The Bridge Lenders have indicated their willingness to so
lend on the terms and subject to the
conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and
agree as follows:
ARTICLE I
DEFINITIONS, ACCOUNTING AND OTHER TERMS AND REFERENCES
1.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings set forth
below:
"ADDITIONAL GUARANTOR" has the meaning specified in SECTION
10.07.
"ADMINISTRATIVE AGENT" means Banc of America Bridge LLC in its
capacity as administrative agent under any
of the Bridge Loan Documents or any
of its Affiliates designated to act as
administrative agent thereunder, or any
successor administrative agent to any of
the foregoing.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's address and, as appropriate,
account as set forth on SCHEDULE 10.02, or
such other address or account as the
Administrative Agent may from time to time
notify the Borrower and the Bridge
Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the
Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person
that directly, or indirectly through one or
more intermediaries, Controls or is
Controlled by or is under common Control
with the Person specified. "CONTROL"
means the possession, directly or
indirectly, of the
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power to direct or cause the direction of
the management or policies of a
Person, whether through the ability to
exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED"
have meanings correlative thereto.
Without limiting the generality of the
foregoing, a Person shall be deemed to be
Controlled by another Person if such other
Person possesses, directly or
indirectly, power to vote 5% or more of the
securities having ordinary voting
power for the election of directors,
managing general partners or the
equivalent.
"AGENT-RELATED PERSONS" means the Administrative Agent and the
Arranger, together with their respective
Affiliates and the officers, directors,
employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"AGENTS" means, collectively, the Administrative Agent and the
Arranger.
"AGGREGATE BRIDGE COMMITMENTS" means the Bridge Commitments of
all the Bridge Lenders.
"AGGREGATE CREDIT EXPOSURES" means, at any time, the sum of
(i) the unused portion of each Bridge
Commitment then in effect and (ii) the
Total Outstandings at such time.
"AGREEMENT" means this Subordinated Bridge Loan Agreement.
"AMENDMENT NO. 1" means Amendment No. 1 to the Senior Credit
Agreement dated January 23, 2004 among the
Borrower, the Senior Lenders and Bank
of America, as administrative agent, swing
line lender and L/C issuer.
"AMENDMENT NO. 1 EFFECTIVE DATE" means the date on which the
conditions precedent to the effectiveness
of Amendment No. 1 as set forth in
Section 2(a) thereof have been satisfied or
waived by the Senior Lenders.
"APPLICABLE RATE" means a percentage per annum equal to (i)
for Eurodollar Rate Loans, the Eurodollar
Rate then in effect for such Bridge
Loans PLUS 4.50% and (ii) for Base Rate
Loans, the Base Rate then in effect for
such Bridge Loans PLUS 3.50%.
"APPROVED FUND" has the meaning specified in SECTION 11.06(g).
"ARRANGER" means Banc of America Securities LLC, in its
capacity as sole lead arranger and sole
book manager.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of EXHIBIT C.
"ATTORNEY COSTS" means and includes all reasonable fees,
expenses and disbursements of any law firm
or other external counsel and,
without duplication, the allocated cost of
internal legal services and all
expenses and disbursements of internal
counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect
of any capital lease of any Person, the
capitalized amount thereof that would
appear on a balance sheet of such Person
prepared as of such date in accordance
with GAAP, and (b) in respect of any
Synthetic
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Lease Obligation, the capitalized amount of
the remaining lease payments under
the relevant lease that would appear on a
balance sheet of such Person prepared
as of such date in accordance with GAAP if
such lease were accounted for as a
capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of the Borrower and its
Subsidiaries for the fiscal year ended
December 28, 2002, and the related
consolidated statements of income or
operations, shareholders' equity and cash
flows for such fiscal year of the
Borrower and its Subsidiaries, including
the notes thereto.
"BANK OF AMERICA" means Bank of America, N.A. and its
successors.
"BANC OF AMERICA BRIDGE" means Banc of America Bridge LLC and
its successors.
"BAS" means Banc of America Securities LLC and its successors.
"BASE RATE" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal
Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as
publicly announced from time to time
by Bank of America as its "prime rate." The
"prime rate" is a rate set by Bank
of America based upon various factors
including Bank of America's costs and
desired return, general economic conditions
and other factors, and is used as a
reference point for pricing some loans,
which may be priced at, above, or below
such announced rate. Any change in such
rate announced by Bank of America shall
take effect at the opening of business on
the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Bridge Loan that bears interest based
on the Base Rate.
"BORROWER" has the meaning specified in the introductory
paragraph hereto.
"BRIDGE BORROWING" means a borrowing under the Bridge
Facility.
"BRIDGE COMMITMENT" means, with respect to any Bridge Lender,
the amount set forth opposite such Bridge
Lender's name on Schedule 2.01 to this
Agreement.
"BRIDGE FACILITY" means, at any time, the aggregate Bridge
Loans of all Bridge Lenders at such
time.
"BRIDGE LENDER" has the meaning specified in the introductory
paragraph hereto.
"BRIDGE LOAN" means an advance made by any Bridge Lender under
the Bridge Facility.
"BRIDGE LOAN DOCUMENTS" means collectively, this Agreement,
the Bridge Notes, the Fee Letter and any
amendment, supplement or other
modification hereof or thereof.
"BRIDGE NOTE" means a promissory note of the Borrower in the
form of Exhibit B attached hereto
evidencing the Bridge Loan of any Bridge
Lender.
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"BORROWER" has the meaning specified in the introductory
paragraph hereto.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks are
authorized to close under the Laws of,
or are in fact closed in, the state where
the Administrative Agent's Office is
located and, if such day relates to any
Eurodollar Rate Loan, means any such day
on which dealings in Dollar deposits are
conducted by and between banks in the
London interbank eurodollar market.
"CAPITAL EXPENDITURE CARRYOVER AMOUNT" has the meaning
specified in SECTION 6.01(m).
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, any expenditure in respect of
the purchase or other acquisition of
any fixed or capital asset (excluding
normal replacements and maintenance which
are properly charged to current operations)
that would be deemed a capital
expenditure under GAAP consistently applied
by the Borrower.
"CASH EQUIVALENTS" means any of the following types of
Investments, to the extent owned by the
Borrower or any of its Subsidiaries free
and clear of all Liens :
(a)
readily marketable obligations issued or directly and
fully guaranteed or insured by the United States of America or
any
agency or instrumentality thereof having maturities of not more
than
360 days from the date of acquisition thereof; PROVIDED that the
full
faith and credit of the United States of America is pledged in
support
thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a
Bridge
Lender or (B) is organized under the laws of the United States
of
America, any state thereof or the District of Columbia or is
the
principal banking subsidiary of a bank holding company organized
under
the laws of the United States of America, any state thereof or
the
District of Columbia, and is a member of the Federal Reserve
System,
(ii) issues (or the parent of which issues) commercial paper rated
as
described in clause (c) of this definition and (iii) has
combined
capital and surplus of at least $500,000,000, in each case with
maturities of not more than 270 days from the date of
acquisition
thereof;
(c) commercial paper issued by any Person organized under the
laws of any state of the United States of America and rated at
least
"Prime-1" (or the then equivalent grade) by Moody's or at least
"A-1"
(or the then equivalent grade) by S&P, in each case with
maturities of
not more than 270 days from the date of acquisition thereof;
and
(d) Investments, classified in accordance with GAAP as Current
Assets of the Borrower or any of its Subsidiaries, in money
market
investment programs registered under the Investment Company Act
of
1940, which are administered by financial institutions that have
the
highest rating obtainable from either Moody's or S&P, and
the
portfolios of which are limited solely to Investments of the
character,
quality and maturity described in clauses (a), (b) and (c) of
this
definition.
"CHANGE OF CONTROL" means, an event or series of events by
which:
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(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
but
excluding any employee benefit plan of such person or its
subsidiaries,
and any person or entity acting in its capacity as trustee, agent
or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the
Securities Exchange Act of 1934, except that a person or group
shall be
deemed to have "beneficial ownership" of all securities that
such
person or group has the right to acquire (such right, an
"OPTION
RIGHT"), whether such right is exercisable immediately or only
after
the passage of time), directly or indirectly, of 35% or more of
the
equity securities of the Borrower entitled to vote for members of
the
board of directors or equivalent governing body of such Person on
a
fully diluted basis (and taking into account all such securities
that
such person or group has the right to acquire pursuant to any
option
right); or
(b) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent
governing
body of the Borrower cease to be composed of individuals (i) who
were
members of that board or equivalent governing body on the first day
of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to
in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent
governing
body or (iii) whose election or nomination to that board or
other
equivalent governing body was approved by individuals referred to
in
clauses (i) and (ii) above constituting at the time of such
election or
nomination at least a majority of that board or equivalent
governing
body (excluding, in the case of both clause (ii) and clause (iii),
any
individual whose initial nomination for, or assumption of office
as, a
member of that board or equivalent governing body occurs as a
result of
an actual or threatened solicitation of proxies or consents for
the
election or removal of one or more directors by any person or
group
other than a solicitation for the election of one or more directors
by
or on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into
a
contract or arrangement that, upon consummation thereof, will
result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies
of
the Borrower, or control over the equity securities of such
Person
entitled to vote for members of the board of directors or
equivalent
governing body of such Person on a fully diluted basis (and taking
into
account all such securities that such person or group has the right
to
acquire pursuant to any option right) representing 35% or more of
the
combined voting power of such securities.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations
promulgated and rulings issued
thereunder.
"COMMITTED LOAN NOTICE" means a notice of (a) a Bridge
Borrowing, (b) a conversion of Bridge Loans
from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans,
pursuant to SECTION 2.02(a), which, if in
writing, shall be substantially in the form
of EXHIBIT A.
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"COMPENSATION PERIOD" has the meaning specified in SECTION
2.10(c)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT D.
"CONTINUING NON-PAYMENT DEFAULT" has the meaning specified in
SECTION 9.03(b).
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such
Person or of any agreement, instrument
or other undertaking to which such Person
is a party or by which it or any of
its property is bound.
"CONTROL" has the meaning specified in the definition of
"Affiliate."
"CREDIT EXTENSION" means a Bridge Borrowing.
"CURRENT ASSETS" means, with respect to any Person, all assets
of such Person that, in accordance with
GAAP, would be classified as current
assets on the balance sheet of a company
conducting a business the same as or
similar to that of such Person, after
deducting appropriate and adequate
reserves therefrom in each case in which a
reserve is proper in accordance with
GAAP.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States, and all other liquidation,
conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium,
rearrangement, receivership, insolvency,
reorganization, or similar debtor relief
Laws of the United States or other
applicable jurisdictions from time to time
in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an
Event of Default or that, with the giving
of any notice, the passage of time, or
both, would be an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base
Rate PLUS (b) the Applicable Rate, if any,
applicable to Base Rate Loans PLUS
(c) 2.0% per annum; PROVIDED, HOWEVER, that
with respect to a Eurodollar Rate
Loan, the Default Rate shall be an interest
rate equal to the interest rate
(including any Applicable Rate) otherwise
applicable to such Eurodollar Rate
Loan plus 2.0% per annum, in each case to
the fullest extent permitted by
applicable Laws.
"DEFAULTING BRIDGE LENDER" means any Bridge Lender that (a)
has failed to fund any portion of the
Bridge Loans required to be funded by it
hereunder within one Business Day of the
date required to be funded by it
hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or
any other Bridge Lender any other amount
required to be paid by it hereunder
within one Business Day of the date when
due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent
or become the subject of a bankruptcy
or insolvency proceeding.
"DESIGNATED SENIOR INDEBTEDNESS" means all Indebtedness and
Obligations of the Borrower and any
Guarantor, now or hereinafter arising under
or in connection with any of the Senior
Credit Agreement, the Seven Year Notes
and the Seven Year Notes Indenture, and
any
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Refinancing Indebtedness incurred in
respect of any thereof, as any thereof may
be amended, restated, supplemented or
otherwise modified from time to time.
"DOLLAR" and "$" mean lawful money of the United States.
"EFFECTIVE DATE" means the first date all the conditions
precedent in SECTION 4.01 are satisfied or
waived in accordance with SECTION
4.01 (or, in the case of SECTION 4.01(b),
waived by the Person entitled to
receive the applicable payment), but in no
event later than thirty days
following the execution of this Agreement
by all parties hereto.
"ELIGIBLE ASSIGNEE" has the meaning specified in SECTION
11.06(g).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders,
decrees, permits, licenses, agreements or
governmental restrictions relating to
pollution and the protection of the
environment or the release of any materials
into the environment, including those
related to hazardous substances or wastes,
air emissions and discharges to waste or
public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for
damages, costs of environmental
remediation, fines, penalties or
indemnities), of the Borrower, any other Loan
Party or any of their respective
Subsidiaries directly or indirectly resulting
from or based upon (a) violation of any
Environmental Law, (b) the generation,
use, handling, transportation, storage,
treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous
Materials, (d) the release or
threatened release of any Hazardous
Materials into the environment or (e) any
contract, agreement or other consensual
arrangement pursuant to which liability
is assumed or imposed with respect to any
of the foregoing.
"EQUITY
INTERESTS" means, with respect to any Person, all of
the shares of capital stock of (or other
ownership or profit interests in) such
Person, all of the warrants, options or
other rights for the purchase or
acquisition from such Person of shares of
capital stock of (or other ownership
or profit interests in) such Person, all of
the securities convertible into or
exchangeable for shares of capital stock of
(or other ownership or profit
interests in) such Person or warrants,
rights or options for the purchase or
acquisition from such Person of such shares
(or such other interests), and all
of the other ownership or profit interests
in such Person (including, without
limitation, partnership, member or trust
interests therein), whether voting or
nonvoting, and whether or not such shares,
warrants, options, rights or other
interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the
regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any
Loan Party within the meaning of
SECTION 414(B) OR (C) of the Code (and
SECTIONS 414(m) AND (o) of the Code for
purposes of provisions relating to SECTION
412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Loan
Party or any ERISA Affiliate from a
Pension Plan subject to SECTION
Alderwoods--Subordinated Bridge Loan Agreement
7
<PAGE>
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 that is
treated as such a withdrawal under SECTION
4062(e) of ERISA; (c) a complete or
partial withdrawal (as defined in SECTION
4203 OR 4205, respectively, of ERISA)
by any Loan Party or any ERISA Affiliate
from a Multiemployer Plan or the
receipt by a Loan Party or any ERISA
Affiliate of a notification pursuant to
SECTION 4242 of ERISA, 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 SECTIONS 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 constitutes
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 for PBGC premiums
due but not delinquent under SECTION
4007 of ERISA, upon any Loan Party or any
ERISA Affiliate.
"EURODOLLAR RATE" means for any Interest Period with respect
to any Eurodollar Rate Loan, a rate per
annum determined by the Administrative
Agent pursuant to the following
formula:
Eurodollar Base Rate
Eurodollar Rate =
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the
page of
the Telerate screen (or any successor thereto) that displays an
average
British Bankers Association Interest Settlement Rate for deposits
in
Dollars (for delivery on the first day of such Interest Period)
with a
term equivalent to such Interest Period, determined as of
approximately
11:00 a.m. (London time) two Business Days prior to the first day
of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall
not be
available, the rate per annum equal to the rate determined by
the
Administrative Agent to be the offered rate on such other page or
other
service that displays an average British Bankers Association
Interest
Settlement
Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such
Interest
Period, determined as of approximately 11:00 a.m. (London time)
two
Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits
in
Dollars for delivery on the first day of such Interest Period in
same
day funds in the approximate amount of the Eurodollar Rate Loan
being
made or continued or converted by Bank of America and with a
term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the
Alderwoods--Subordinated Bridge Loan Agreement
8
<PAGE>
London interbank eurodollar market at their request at
approximately
4:00 p.m. (London time) two Business Days prior to the first day
of
such Interest Period.
"EURODOLLAR RATE LOAN" means a Bridge Loan that bears interest
at a rate based on the Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest Period, the reserve percentage
(expressed as a decimal, carried out to
five decimal places) in effect on such day,
whether or not applicable to any
Bridge 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"). The Eurodollar
Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically
as of the effective date of any change in
the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning specified in SECTION 7.01.
"FEDERAL" means the Federal government of the United States of
America.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
equal to the weighted average of the rates
on overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal
funds brokers on such day, as published by
the Federal Reserve Bank on the
Business Day next succeeding such day;
PROVIDED that (a) if such day is not a
Business Day, the Federal Funds Rate for
such day shall be such rate on such
transactions on the next preceding Business
Day as so published on the next
succeeding Business Day, and (b) if no such
rate is so published on such next
succeeding Business Day, the Federal Funds
Rate for such day shall be the
average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on
such transactions as determined by the
Administrative Agent.
"FEE LETTER" means the fee letter, dated January 5, 2004,
among the Borrower, the Administrative
Agent and the Arranger.
"FOREIGN SUBSIDIARY" means a Subsidiary organized under the
laws of a jurisdiction other than the
United States or any State thereof or the
District of Columbia.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"FUND" has the meaning specified in SECTION 11.06(g).
"GAAP" means generally accepted accounting principles in the
United States set forth 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 that
are applicable to the circumstances as of
the date of determination,
consistently applied.
Alderwoods--Subordinated Bridge Loan Agreement
9
<PAGE>
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision
thereof, any agency, authority,
instrumentality, regulatory body, court,
administrative tribunal, central bank
or other entity exercising executive,
legislative, judicial, taxing, regulatory
or administrative powers or functions of or
pertaining to government.
"GRANTING BRIDGE LENDER" has the meaning specified in SECTION
11.06(h).
"GUARANTEE" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person
guaranteeing or having the economic
effect of guaranteeing any Indebtedness or
other obligation payable or
performable by another Person (the "PRIMARY
OBLIGOR") in any manner, whether
directly or indirectly, and including any
obligation of such Person, direct or
indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or
payment of) such Indebtedness or other
obligation, (ii) to purchase or lease
property, securities or services for the
purpose of assuring the obligee in
respect of such Indebtedness or other
obligation of the payment or performance
of such Indebtedness or other obligation,
(iii) to maintain working capital,
equity capital or any other financial
statement condition or liquidity or level
of income or cash flow of the primary
obligor so as to enable the primary
obligor to pay such Indebtedness or other
obligation, or (iv) entered into for
the purpose of assuring in any other manner
the obligee in respect of such
Indebtedness or other obligation of the
payment or performance thereof or to
protect such obligee against loss in
respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person
securing any Indebtedness or other
obligation of any other Person, whether or
not such Indebtedness or other
obligation is assumed by such Person (or
any right, contingent or otherwise, of
any holder of such Indebtedness to obtain
any such Lien). The amount of any
Guarantee shall be deemed to be an amount
equal to the stated or determinable
amount of the related primary obligation,
or portion thereof, in respect of
which such Guarantee is made or, if not
stated or determinable, the maximum
reasonably anticipated liability in respect
thereof as determined by the
guaranteeing Person in good faith. The term
"GUARANTEE" as a verb has a
corresponding meaning.
"GUARANTEED OBLIGATIONS" has the meaning specified in SECTION
10.01.
"GUARANTORS" means, collectively, the Subsidiaries of the
Borrower listed on the signature pages
hereof and each other Subsidiary of the
Borrower that shall be required to execute
and deliver a guaranty or Guaranty
Supplement pursuant to SECTION 6.03.
"GUARANTY" means the Guaranty by each of the Guarantors
pursuant to ARTICLE X hereof.
"GUARANTY SUPPLEMENT" means a Guaranty Supplement
substantially in the form of EXHIBIT G.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or
toxic substances, wastes or other
pollutants, including petroleum or
petroleum distillates, asbestos or
asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances
or wastes of any nature regulated
pursuant to any Environmental Law.
Alderwoods--Subordinated Bridge Loan Agreement
10
<PAGE>
"INDEBTEDNESS" means, as to any Person at a particular time,
without duplication, all of the following,
whether or not included as
indebtedness or liabilities in accordance
with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes,
loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and
commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade
accounts
payable in the ordinary course of business and not more than 45
days
past due);
(e) indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other
title
retention agreements), whether or not such indebtedness shall have
been
assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any
Equity
Interests in such Person or any other Person or any warrants,
rights or
options to acquire such Equity Interests, valued, in the case
of
redeemable preferred interests, at the greater of its voluntary
or
involuntary liquidation preference PLUS accrued and unpaid
dividends;
and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership
or joint venture (other than a joint
venture that is itself a corporation or
limited liability company) in which such
Person is a general partner or a joint
venturer, unless such Indebtedness is
expressly made non-recourse to such Person.
The amount of any net obligation
under any Swap Contract on any date shall
be deemed to be the Swap Termination
Value thereof as of such date. The amount
of any capital lease or Synthetic
Lease Obligation as of any date shall be
deemed to be the amount of Attributable
Indebtedness in respect thereof as of such
date.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION
11.04.
"INDEMNITEES" has the meaning set forth in SECTION 11.04.
Alderwoods--Subordinated Bridge Loan Agreement
11
<PAGE>
"INDENTURE TRUSTEE" means the trustee under the Seven Year
Notes Indenture, or any trustee or
equivalent thereof with respect to any
Refinancing Indebtedness with respect to
the Seven Year Notes Indenture.
"INITIAL BRIDGE LENDER" means Banc of America Bridge LLC
in its capacity as initial bridge
lender.
"INTEREST PAYMENT DATE" means, (a) as to any Bridge Loan other
than a Base Rate Loan, the last day of each
Interest Period applicable to such
Bridge Loan and the Maturity Date and (b)
as to any Base Rate Loan, the last
Business Day of each March, June, September
and December and the Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the
period commencing on the date such
Eurodollar Rate Loan is disbursed or
converted to or continued as a Eurodollar
Rate Loan and ending on the date one
or three months thereafter, as selected by
the Borrower in its Committed Loan
Notice; PROVIDED that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding
Business
Day unless such Business Day falls in another calendar month, in
which
case such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically
corresponding day in the calendar month at the end of such
Interest
Period) shall end on the last Business Day of the calendar month at
the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or investment by such Person,
whether by means of (a) the purchase
or other acquisition of capital stock or
other securities of another Person, (b)
a loan, advance or capital contribution to,
Guarantee or assumption of debt of,
or purchase or other acquisition of any
other debt or equity participation or
interest in, another Person, including any
partnership or joint venture interest
in such other Person and any arrangement
pursuant to which the investor incurs
debt of the type referred to in clause (h)
of the definition of "Indebtedness"
set forth in this SECTION 1.01 in respect
of such Person, or (c) the purchase or
other acquisition (in one transaction or a
series of transactions) of assets of
another Person that constitute a business
unit or division or all or a
substantial part of the business of, such
Person. For purposes of covenant
compliance, the amount of any Investment
shall be the amount actually invested,
without adjustment for subsequent increases
or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service.
"LAWS" means, collectively, all international, foreign,
Federal, state and local statutes,
treaties, rules, regulations, ordinances,
codes and administrative or judicial
precedents or authorities, including the
interpretation or administration thereof by
any Governmental Authority charged
with the enforcement, interpretation or
administration thereof, and all
applicable
Alderwoods--Subordinated Bridge Loan Agreement
12
<PAGE>
administrative orders, licenses,
authorizations and permits of, and
agreements with, any Governmental
Authority, in each case whether or not having
the force of law.
"LENDING OFFICE" means, as to any Bridge Lender, the office or
offices of such Bridge Lender described as
such in such Bridge Lender's
Administrative Questionnaire, or such other
office or offices as a Bridge Lender
may from time to time notify the Borrower
and the Administrative Agent.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien
(statutory or other), charge, or
preference, priority or other security
interest or preferential arrangement of
any kind or nature whatsoever (including
any conditional sale or other title
retention agreement, any easement, right of
way or other encumbrance on title to
real property, and any financing lease
having substantially the same economic
effect as any of the foregoing).
"LOAN PARTIES" means, collectively, the Borrower and each
Guarantor.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the
operations, business, properties,
liabilities (actual or contingent),
condition (financial or otherwise) or
prospects of the Borrower and its
Subsidiaries taken as a whole; (b) a material
impairment of the rights and remedies of
any Agent or the Bridge Lenders under
any Bridge Loan Document, or of the ability
of any Loan Party to perform its
obligations under any Bride Loan Document
to which it is a party; or (c) a
material adverse effect upon the legality,
validity, binding effect or
enforceability against any Loan Party of
any Bridge Loan Document to which it is
a party.
"MATURITY DATE" means the earlier of (i) March 31, 2005 and
(ii) the date of termination in whole of
the Bridge Commitments pursuant to
SECTION 2.04 or 7.02.
"MOODY'S" means Moody's Investors Service, Inc. and any
successor thereto.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of
ERISA that is subject to TITLE IV of
ERISA and to which any Loan Party or any
ERISA Affiliate makes or is obligated
to make contributions, or during the
preceding five plan years, has made or been
obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to the sale of any asset by any Loan Party or
any of its Subsidiaries, the excess, if any, of (i) the sum of cash
and
Cash Equivalents received in connection with such sale (including
any
cash or Cash Equivalents received by way of deferred payment
pursuant
to, or by monetization of, a note receivable or otherwise, but only
as
and when so received) over (ii) the sum of (A) the principal amount
of
any Indebtedness that is secured by such asset and that is required
to
be repaid in connection with the sale thereof (other than
Indebtedness
under the Bridge Loan Documents), (B) the out-of-pocket
expenses
incurred by such Loan Party or such Subsidiary in connection with
such
sale, (C) income taxes reasonably estimated to be actually
payable
within two years of the date of the relevant asset sale as a result
of
any gain recognized in connection
Alderwoods--Subordinated Bridge Loan Agreement
13
<PAGE>
therewith, and (D) amounts provided as a reserve against any
liabilities under any indemnification obligations associated with
such
sale; PROVIDED that so long as such Loan Party or such Subsidiary
is
not otherwise indemnified therefor, such amounts are reserved for
in
accordance with GAAP at the time of receipt of such cash, based
upon
such Loan Party's or such Subsidiary's reasonable estimate of
such
indemnification obligations (as determined reasonably and in good
faith
by the treasurer or chief financial officer of such Loan Party or
such
Subsidiary, as the case may be); PROVIDED, HOWEVER, that if, at
the
time such indemnification obligations are actually paid or
otherwise
satisfied, the amount of the reserve therefor exceeds the amount
paid
or otherwise satisfied, then the Borrower shall reduce the
Bridge
Commitments in accordance with the terms of SECTION 2.04, and
shall
prepay the outstanding Bridge Loans in accordance with the terms
of
SECTION 2.03(b), in an amount equal to the amount of such
excess
reserve;
(b) with respect to the sale of any capital stock or other
Equity Interest by the Borrower, the excess of (i) the sum of the
cash
and Cash Equivalents received in connection with such sale over
(ii)
the sum of (A) the underwriting discounts and commissions, and
other
out-of-pocket expenses, incurred by the Borrower in connection
with
such sale and (B) income taxes reasonably estimated to be
actually
payable within two years of the date of the relevant sale as a
result
of any gain recognized in connection therewith; and
(c) with respect to the incurrence or issuance of any
Indebtedness by any Loan Party or any of its Subsidiaries, the
excess,
if any, of (i) the sum of cash and Cash Equivalents received in
connection with such incurrence or issuance over (ii) the sum
of
investment banking fees, underwriting discounts and commissions,
and
other out-of-pocket expenses, incurred by any Loan Party of any of
its
Subsidiaries in connection with such incurrence or issuance.
"NON-PAYMENT DEFAULT" means (a) any "Default" or "Event of
Default" (as such terms are defined in the
Senior Credit Agreement and the Seven
Year Notes Indenture, or any Refinancing
Indebtedness with respect to either
thereof), other than a Payment Default and
(b) any other event of default with
respect to the Senior Indebtedness, other
than a Payment Default.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any
Loan Party arising under any Bridge
Loan Document or otherwise with respect to
any Bridge Loan, whether direct or
indirect (including those acquired by
assumption), absolute or contingent, due
or to become due, now existing or hereafter
arising and including interest and
fees that accrue after the commencement by
or against any Loan Party of any
proceeding under any Debtor Relief Laws
naming such Person as the debtor in such
proceeding, regardless of whether such
interest and fees are allowed claims in
such proceeding. Without limiting the
generality of the foregoing, the
Obligations of the Loan Parties under the
Bridge Loan Documents include (a) the
obligation to pay principal, interest,
charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other
amounts payable by any Loan Party under
any Bridge Loan Document and (b) the
obligation of any Loan Party to reimburse
any amount in respect of any of the
foregoing that any Bridge Lender, in its
sole discretion, may elect to pay or
advance on behalf of such Loan Party.
Alderwoods--Subordinated Bridge Loan Agreement
14
<PAGE>
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the certificate or articles of
incorporation and the bylaws (or
equivalent or comparable constitutive
documents with respect to any non-U.S.
jurisdiction); (b) with respect to any
limited liability company, the
certificate or articles of formation or
organization and operating agreement;
and (c) with respect to any partnership,
joint venture, trust or other form of
business entity, the partnership, joint
venture or other applicable agreement of
formation or organization and any
agreement, instrument, filing or notice with
respect thereto filed in connection with
its formation or organization with the
applicable Governmental Authority in the
jurisdiction of its formation or
organization and, if applicable, any
certificate or articles of formation or
organization of such entity.
"OUTSTANDING AMOUNT" means on any date, the aggregate
outstanding principal amount of Bridge
Loans after giving effect to any Bridge
Borrowings and prepayments or repayments of
Bridge Loans, occurring on such
date.
"PARTICIPANT" has the meaning specified in SECTION 11.06(d).
"PAYMENT BLOCKAGE NOTICE" has the meaning specified in SECTION
9.03(b).
"PAYMENT BLOCKAGE PERIOD" has the meaning specified in SECTION
9.03(b).
"PAYMENT DEFAULT" means any default in the payment of any
Senior Indebtedness when due.
"PAYMENT IN FULL" means, for purposes of Article IX, payment
in full in cash or other payment
satisfactory to the holders of Senior
Indebtedness being paid. As used in Article
IX, "Paid In Full" and "Payment In
Full" have correlative meanings.
"PENSION
PLAN" means any "employee pension benefit plan" (as
such term is defined in SECTION 3(2) of
ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and
(i) is sponsored or maintained by any
Loan Party or any ERISA Affiliate, (ii) to
which any Loan Party or any ERISA
Affiliate contributes or has an obligation
to contribute, or (iii) in the case
of a multiple employer or other plan
described in SECTION 4064(a) of ERISA, to
which any Loan Party or any ERISA Affiliate
has made contributions at any time
during the immediately preceding five plan
years.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture,
association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any "employee benefit plan" (as such term is
defined in SECTION 3(3) of ERISA) that is
subject to ERISA and is established by
any Loan Party or, with respect to any such
plan that is subject to SECTION 412
of the Code or TITLE IV of ERISA, any ERISA
Affiliate.
"PRO RATA SHARE" means, with respect to each Bridge Lender at
any time, a fraction (expressed as a
percentage, carried out to the ninth
decimal place), the numerator of which is
the amount of the Bridge Commitment(s)
of such Bridge Lender under the Bridge
Facility at such time and the denominator
of which is the amount of the Aggregate
Bridge
Alderwoods--Subordinated Bridge Loan Agreement
15
<PAGE>
Commitments under the Bridge Facility at
such time. The initial Pro Rata Share
of each Bridge Lender is set forth opposite
the name of such Bridge Lender on
SCHEDULE 2.01 or in the Assignment and
Assumption pursuant to which such Bridge
Lender becomes a party hereto, as
applicable.
"REFINANCING" has the meaning specified in the preliminary
statements.
"REFINANCING INDEBTEDNESS" means, with respect to any Senior
Indebtedness, any Indebtedness issued or
incurred to finance, extend, renew,
refund, repay, prepay, redeem, defease or
retire or in exchange or replacement
for, such Senior Indebtedness, in whole or
in part (including by way of a
securitization transaction).
"REGISTER" has the meaning set forth in SECTION 11.06(c).
"RELATED DOCUMENTS" means the Seven Year Notes Indenture and
the Senior Credit Agreement.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA, other than events
for which the 30-day notice period
has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a
Bridge Borrowing, or a conversion or
continuation of Bridge Loans, a Committed
Loan Notice.
"REQUIRED BRIDGE LENDERS" means, as of any date of
determination, Bridge Lenders having more
than 50% of the sum of the (a) Total
Outstandings and (b) aggregate unused
Bridge Commitments; PROVIDED that the
unused Bridge Commitment and the portion of
the Total Outstandings held or
deemed held by, any Defaulting Bridge
Lender shall be excluded for purposes of
making a determination of Required Bridge
Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, chief financial officer,
treasurer, assistant treasurer, any vice
president of a Loan Party that has been
properly authorized to execute documents
and otherwise act on behalf of such Loan
Party or, in the case of the
appropriate documents delivered pursuant to
SECTION 4.01(a)(iii), the secretary
of a Loan Party. Any document delivered
hereunder that is signed by a
Responsible Officer of a Loan Party shall
be conclusively presumed to have been
authorized by all necessary corporate,
partnership and/or other action on the
part of such Loan Party and such
Responsible Officer shall be conclusively
presumed to have acted on behalf of such
Loan Party.
"S&P" means Standard & Poor's Ratings Services, a division
of
The McGraw-Hill Companies, Inc., and any
successor thereto.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of
its principal functions.
"SENIOR AGENT" means the administrative agent under the Senior
Credit Agreement or any Refinancing
Indebtedness with respect thereto, and any
successor to the administrative agent in
such capacity.
Alderwoods--Subordinated Bridge Loan Agreement
16
<PAGE>
"SENIOR CREDIT AGREEMENT" means the Credit Agreement dated as
of September 17, 2003, among Borrower, each
lender from time to time party
thereto and Bank of America, as
administrative agent, swing line lender and L/C
issuer, as amended by Amendment No. 1.
"SENIOR INDEBTEDNESS" means (a) all Designated Senior
Indebtedness and (b) any other Indebtedness
(and related Obligations) incurred
by the Borrower or any Guarantor, unless
the instrument under which such
Indebtedness is incurred expressly provides
that it is not senior in right of
payment to, or is on a parity with or
subordinated in right of payment to the
Bridge Loans. Notwithstanding anything to
the contrary in the foregoing
sentence, Senior Indebtedness described in
clause (b) above will not include (i)
any liability for federal, state, local or
other taxes owed or owing by the
Borrower or any Guarantor; (ii) any
obligation of the Borrower or any Guarantor
to the Borrower or any of its Subsidiaries
(except to the extent that such
obligations have been assigned to, or for
the benefit of, the holders of any of
the Designated Senior Indebtedness to
secure any of the Designated Senior
Indebtedness); (iii) any accounts payable
or trade liabilities arising in the
ordinary course of business (including
instruments evidencing such liabilities);
(iv) Indebtedness that, when incurred and
without respect to any election under
Section 1111(b) of Title 11, United States
Code, is without recourse to the
Borrower; (v) Indebtedness evidenced by the
Bridge Notes or under the Bridge
Loan Documents; and (vi) capital stock of
the Borrower or any Guarantor.
"SENIOR LENDERS" means the lenders under the Senior Credit
Agreement.
"SENIOR LOAN DOCUMENTS" means the Senior Credit Agreement, the
Senior Notes and the other "Loan Documents"
as such term is defined in the
Senior Credit Agreement.
"SENIOR NOTES" means the promissory notes of the Borrower
evidencing the term loans and revolving
credit loans of the Senior Lenders made
pursuant to the Senior Credit
Agreement.
"SEVEN YEAR NOTES" means the 12 1/4% senior unsecured notes of
the Borrower due 2009 in an aggregate
original principal amount of $330,000,000.
"SEVEN YEAR NOTES INDENTURE" means the Indenture dated as of
January 2, 2002 between the Borrower, as
Issuer and Wells Fargo Bank Minnesota,
National Association, as Trustee, providing
for the issuance of the Seven Year
Notes, as supplemented by the First
Supplemental Indenture thereto.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
any date of determination, that on such
date (a) the fair value of the property
of such Person is greater than the total
amount of liabilities, including,
without limitation, contingent liabilities,
of such Person, (b) the present fair
salable value of the assets 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 does not intend to, and does not
believe that it will, incur debts or
liabilities beyond such Person's ability to
pay such debts and liabilities as they
mature and (d) 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 an unreasonably
small capital. The amount of contingent
liabilities at any time shall be
computed as the amount that, in
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<PAGE>
the light of all the facts and
circumstances existing at such time, represents
the amount that can reasonably be expected
to become an actual or matured
liability.
"SPC" has the meaning specified in SECTION 11.06(h).
"SUBORDINATED INDEBTEDNESS" means all Indebtedness heretofore,
now or hereinafter existing under the
Bridge Notes and this Agreement (whether
created directly or acquired by assignment
or otherwise), and all interest and
premiums, if any, thereon, fees, expenses
and indemnities and all other amounts
and obligations of any kind payable in
respect thereof (including, without
limitation, sinking fund payments (if any),
defeasance payments (if any), and
any and all amounts payable to acquire any
Bridge Notes or on account of any
redemption, repurchase, retirement of other
purchase of Bridge Notes, including
Indebtedness of the Guarantors with respect
to the foregoing.
"SUBORDINATED NOTES" has the meaning specified in the
preliminary statements.
"SUBORDINATED NOTES INDENTURE" means the Indenture dated as of
January 2, 2002 between the Borrower, as
Issuer and Wells Fargo Bank Minnesota,
National Association, as Trustee, providing
for the issuance of the Subordinated
Notes.
"SUBSIDIARY" of a Person means a corporation, partnership,
joint venture, limited liability company or
other business entity of which a
majority of the shares of securities or
other interests having ordinary voting
power for the election of directors or
other governing body (other than
securities or interests having such power
only by reason of the happening of a
contingency) are at the time beneficially
owned, or the management of which is
otherwise controlled, directly, or
indirectly through one or more
intermediaries, or both, by such Person.
Unless otherwise specified, all
references herein to a "SUBSIDIARY" or to
"SUBSIDIARIES" shall refer to a
Subsidiary or Subsidiaries of the
Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions,
basis swaps, credit derivative
transactions, forward rate transactions,
commodity swaps, commodity options, forward
commodity contracts, equity or
equity index swaps or options, bond or bond
price or bond index swaps or options
or forward bond or forward bond price or
forward bond index transactions,
interest rate options, forward foreign
exchange transactions, cap transactions,
floor transactions, collar transactions,
currency swap transactions,
cross-currency rate swap transactions,
currency options, spot contracts, or any
other similar transactions or any
combination of any of the foregoing (including
any options to enter into any of the
foregoing), whether or not any such
transaction is governed by or subject to
any master agreement, and (b) any and
all transactions of any kind, and the
related confirmations, which are subject
to the terms and conditions of, or governed
by, any form of master agreement
published by the International Swaps and
Derivatives Association, Inc., any
International Foreign Exchange Master
Agreement, or any other similar master
agreement (any such master agreement,
together with any related schedules, a
"MASTER AGREEMENT"), including any such
obligations or liabilities under any
Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more
Swap Contracts, after taking into account
the effect of any legally enforceable
netting agreement
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18
<PAGE>
relating to such Swap Contracts, (a) for
any date on or after the date such Swap
Contracts have been closed out and
termination value(s) determined in accordance
therewith, such termination value(s), and
(b) for any date prior to the date
referenced in clause (a), the amount(s)
determined as the mark-to-market
value(s) for such Swap Contracts, as
determined based upon one or more
mid-market or other readily available
quotations provided by any recognized
dealer in such Swap Contracts (which may
include a Bridge Lender or any
Affiliate of a Bridge Lender).
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a Person under (a) a so-called synthetic,
off-balance sheet or tax retention
lease, or (b) an agreement for the use or
possession of property creating
obligations that do not appear on the
balance sheet of such Person but which,
upon the insolvency or bankruptcy of such
Person, would be characterized as the
indebtedness of such Person (without regard
to accounting treatment).
"THRESHOLD AMOUNT" means $12,500,000.
"TOTAL CAPITAL EXPENDITURES" has the meaning specified in
SECTION 6.01(m).
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of
all Bridge Loans.
"TREASURY REGULATIONS" means the Federal treasury regulations
promulgated under the Code.
"TYPE" means, with respect to a Bridge Loan, its character as
a Base Rate Loan or a Eurodollar Rate
Loan.
"UFCA" means the Uniform Fraudulent Conveyance Act of 1981, as
amended from time to time, and the
regulations promulgated and rulings issued
thereunder.
"UFTA" means the Uniform Fraudulent Transfer Act of 1984, as
amended from time to time, and the
regulations promulgated and rulings issued
thereunder.
"UNITED STATES" and "U.S." mean the United States of America.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Bridge Loan
Document, unless otherwise specified herein
or in such other Bridge Loan Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "HEREIN," "HERETO," "HEREOF" and "HEREUNDER"
and words of similar import when used in any Bridge Loan Document
shall
refer to such Bridge Loan Document as a whole and not to any
particular
provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Bridge Loan Document in which such reference appears.
Alderwoods--Subordinated Bridge Loan Agreement
19
<PAGE>
(iii) The term "INCLUDING" is by way of example and not
limitation.
(iv) The term "DOCUMENTS" includes any and all instruments,
documents, agreements, certificates, notices, reports,
financial
statements and other writings, however evidenced, whether in
physical
or electronic form.
(c) 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."
(d) Section headings herein and in the other Bridge Loan
Documents are included for convenience of reference only and shall
not
affect the interpretation of this Agreement or any other Bridge
Loan
Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not
specifically or completely defined herein
shall be construed in conformity with,
and all financial data (including financial
ratios and other financial
calculations) required to be submitted
pursuant to this Agreement shall be
prepared in conformity with, GAAP applied
on a consistent basis, as in effect
from time to time, applied in a manner
consistent with that used in preparing
the Audited Financial Statements, except as
otherwise specifically prescribed
herein.
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or
requirement set forth in any Bridge Loan
Document, and either the Borrower or the
Required Bridge Lenders shall so
request, the Administrative Agent, the
Bridge Lenders and the Borrower shall
negotiate in good faith to amend such ratio
or requirement to preserve the
original intent thereof in light of such
change in GAAP (subject to the approval
of the Required Bridge Lenders); PROVIDED
that, until so amended, (i) such ratio
or requirement shall continue to be
computed in accordance with GAAP prior to
such change therein and (ii) the Borrower
shall provide to the Administrative
Agent and the Bridge Lenders financial
statements and other documents required
under this Agreement or as reasonably
requested hereunder setting forth a
reconciliation between calculations of such
ratio or requirement made before and
after giving effect to such change in
GAAP.
1.04 REFERENCES TO AGREEMENTS AND LAWS; INCORPORATION BY
REFERENCE. (a) Unless otherwise expressly
provided herein, (i) references to
Organization Documents, agreements
(including the Bridge Loan Documents) and
other contractual instruments shall be
deemed to include all subsequent
amendments, restatements, extensions,
supplements and other modifications
thereto, but only to the extent that such
amendments, restatements, extensions,
supplements and other modifications are not
prohibited by any Bridge Loan
Document; and (ii) references to any Law
shall include all statutory and
regulatory provisions consolidating,
amending, replacing, supplementing or
interpreting such Law.
(b) Except as otherwise provided herein, all references in
provisions and definitions incorporated
pursuant to SECTIONS 3.01, 6.01, 8.01
and 11.07 hereof to the "Agent",
"Administrative Agent", a "Lender" or the
"Lenders" or words of similar import or to
"this Agreement", "hereof", "hereto"
or "hereunder" or words of similar import
shall, without further reference, mean
and refer to the Agents and the
Administrative Agent, a Bridge Lender or the
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20
<PAGE>
Bridge Lenders under this Agreement and to
this Agreement, respectively; all
references in such incorporated provisions
and definitions to the "Borrower"
shall, without further reference, mean and
refer to the Borrower hereunder; all
references in such incorporated provisions
and definitions to a "Loan" or the
"Loans" (or to a Type of "Loans" under the
Senior Credit Agreement) or a
"Borrowing or the "Borrowings" or words of
similar import shall, without further
reference, mean and refer to the Bridge
Loans, the Bridge Borrowing or Bridge
Borrowings, as appropriate, hereunder; all
references in such incorporated
provisions and definitions to a "Facility"
shall, without further reference,
mean and refer to the Bridge Facility
hereunder; all references in such
incorporated provisions and definitions to
any "Commitment" shall, without
further reference, mean and refer to the
Bridge Commitments hereunder; all
references in such incorporated provisions
and definitions to the "Loan
Documents" shall, without further
reference, mean and refer to the Bridge Loan
Documents as defined hereunder; all
references in such incorporated provisions
and definitions to the "Notes" shall,
without further reference, mean and refer
to the Bridge Notes as defined hereunder;
all references in such incorporated
provisions and definitions to "Required
Lenders" shall, without further
reference mean and refer to the Required
Bridge Lenders as defined hereunder;
all references in such incorporated
provisions and definitions to "Effective
Date" shall, without further reference mean
and refer to the Effective Date as
defined hereunder all references in such
incorporated provisions and definitions
to "Sections" or "Articles" of the Senior
Credit Agreement shall, without
further reference, mean and refer to the
corresponding sections and articles of
this Agreement except to the extent that
any such referenced section or article
is a section or article that has been
incorporated herein by reference, in which
case such section or article reference
shall mean and refer to the applicable
section or article of the Senior Credit
Agreement, as incorporated herein by
reference (or, if there is no such
corresponding section or article and the
referenced section or article is not being
incorporated by reference, then the
referenced section or article shall mean
and be a reference to the applicable
section or article under the Senior Credit
Agreement); and all references in
such incorporated provisions and
definitions to "Swing Line Loans", "Letters of
Credit" and "Revolving Credit Loans", and
any and all related items, as well as
any provisions relating to "Collateral"
shall have no application hereunder
(other than the reference to "Collateral"
in Section 7.01(i) of the Senior
Credit Agreement, as incorporated herein by
reference). Similarly, to the extent
any word or phrase is defined in this
Agreement, any such word or phrase
appearing in provisions so incorporated by
reference from the Senior Credit
Agreement shall have the meaning given to
it in this Agreement. The
incorporation by reference pursuant to this
SECTION 1.04(b) and SECTIONS 3.01,
6.01, 8.01 AND 11.07 hereof of the terms
and conditions of the Senior Credit
Agreement is for convenience only, and this
Agreement and the Senior Credit
Agreement shall at all times be, and be
deemed to be and treated as, separate
and distinct loan obligations. The
incorporation by reference pursuant to this
SECTION 1.04(b) and SECTIONS 3.01, 6.01,
8.01 AND 11.07 hereof of the terms and
conditions of the Senior Credit Agreement
shall not be affected or impaired by
any subsequent expiration or termination of
the Senior Credit Agreement.
1.05 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references
to Eastern time (daylight or
standard, as applicable).
1.06 ROUNDING. Any financial ratios required to be maintained
by the Borrower pursuant to this Agreement
shall be calculated by dividing the
appropriate component by the other
component, carrying the result to one place
more than the number of places by which
such
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21
<PAGE>
ratio is expressed herein and rounding the
result up or down to the nearest
number (with a rounding-up if there is more
than one nearest number).
ARTICLE II
THE BRIDGE COMMITMENTS AND CREDIT EXTENSIONS
2.01 THE BRIDGE LOANS. Subject to the terms and conditions set
forth herein, each Bridge Lender severally
agrees to make a single loan in an
amount equal to its Pro Rata Share of the
Bridge Facility to the Borrower on the
Effective Date. The Bridge Borrowing shall
consist of Bridge Loans made
simultaneously by the Bridge Lenders in
accordance with their respective Pro
Rata Share of the Bridge Facility. Amounts
borrowed under this SECTION 2.01 and
repaid or prepaid may not be reborrowed.
Bridge Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided
herein.
2.02
BORROWINGS, CONVERSIONS AND CONTINUATIONS OF BRIDGE
LOANS. (a) Each Bridge Borrowing, each
conversion of Bridge Loans from one Type
to the other, and each continuation of
Eurodollar Rate Loans shall be made upon
the Borrower's irrevocable notice to the
Administrative Agent, which may be
given by telephone. Each such notice must
be received by the Administrative
Agent not later than 12:00 p.m. (i) three
Business Days prior to the requested
date of any Bridge Borrowing of, conversion
to or continuation of Eurodollar
Rate Loans, and (ii) two Business Days
prior to the requested date of any Bridge
Borrowing of Base Rate Loans or of any
conversion of Eurodollar Rate Loans to
Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this SECTION
2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a
written Committed Loan Notice,
appropriately completed and signed by a
Responsible Officer of the Borrower. Except
in the case of the initial credit
extension or a conversion to or
continuation of the entire principal amount of
the Bridge Loans outstanding hereunder, the
Bridge Borrowing of, conversion to
or continuation of Eurodollar Rate Loans
shall be in a principal amount of
$5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except in the
case of the initial credit extension or a
conversion to or continuation of the
entire principal amount of the Bridge Loans
outstanding hereunder, the Bridge
Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan
Notice (whether telephonic or written)
shall specify (i) whether the Borrower is
requesting a Bridge Borrowing, a conversion
of Bridge Loans from one Type to the
other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of
the Bridge Borrowing, conversion or
continuation, as the case may be (which
shall be a Business Day), (iii) the
principal amount of Bridge Loans to be
borrowed, converted or continued, (iv) the
Type of Bridge Loans to be borrowed
or to which existing Bridge Loans are to be
converted and (v) if applicable, the
duration of the Interest Period with
respect thereto. If the Borrower fails to
specify a Type of Bridge Loan in a
Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a
conversion or continuation, then the
Bridge Loans shall be made as, or converted
to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans
shall be effective as of the last day of
the Interest Period then in effect with
respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a
Bridge Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in
any such Committed Loan Notice, but
fails to specify an Interest Period, it
will be deemed to have specified an
Interest Period of one month.
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22
<PAGE>
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify
each Bridge Lender of the amount of
its Pro Rata Share of the Bridge Loans and
if no timely notice of a conversion
or continuation is provided by the
Borrower, the Administrative Agent shall
notify each Bridge Lender of the details of
any automatic conversion to Base
Rate Loans described in SECTION 2.02(a).
Each Bridge Lender shall make the
amount of its Bridge Loan available to the
Administrative Agent in immediately
available funds at the Administrative
Agent's Office not later than 2:00 p.m. on
the Business Day specified in the
applicable Committed Loan Notice. The
Administrative Agent shall make all funds
so received available to the Borrower
in like funds as received by the
Administrative Agent either by (i) crediting
the account of the Borrower on the books of
the Administrative Agent with the
amount of such funds or (ii) wire transfer
of such funds, in each case in
accordance with instructions provided to
(and reasonably acceptable to) the
Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate
Loan may be continued or converted only on
the last day of an Interest Period
for such Eurodollar Rate Loan. During the
existence of a Default, no Bridge
Loans may be requested as, converted to or
continued as Eurodollar Rate Loans
without the consent of the Required Bridge
Lenders.
(d) The Administrative Agent shall promptly notify the
Borrower and the Bridge Lenders of the
interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon
determination of such interest rate. Such
determination of the Eurodollar Rate by the
Administrative Agent shall be
conclusive in the absence of manifest
error. At any time that Base Rate Loans
are outstanding, the Administrative Agent
shall notify the Borrower and the
Bridge Lenders of any change in Bank of
America's prime rate used in determining
the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Bridge Borrowings, all
conversions of Bridge Loans from one Type
to the other and all continuations of
Bridge Loans, there shall not be more than
five Interest Periods in effect.
(f) The failure of any Bridge Lender to make the Bridge Loan
to be made by it as part of any Bridge
Borrowing shall not relieve any other
Bridge Lender of its obligation, if any,
hereunder to make its Bridge Loan on
the date of such Bridge Borrowing, but no
Bridge Lender shall be responsible for
the failure of any other Bridge Lender to
make the Bridge Loan to be made by
such other Bridge Lender on the date of any
Bridge Borrowing.
2.03 PREPAYMENTS. (a) OPTIONAL. The Borrower may, upon notice
to the Administrative Agent, at any time or
from time to time voluntarily prepay
Bridge Loans in whole or in part without
premium or penalty; PROVIDED that (i)
such notice must be received by the
Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any
date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of
Base Rate Loans; and (ii) any
prepayment of Eurodollar Rate Loans shall
be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess
thereof; and (iii) any prepayment of
Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple
of $100,000 in excess thereof or, in each
case, if less, the entire principal
amount thereof then outstanding. Each such
notice shall specify the date and
amount of such prepayment and the Type(s)
of Bridge Loans to be prepaid. The
Administrative Agent will promptly notify
each Bridge Lender of its receipt of
each such
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23
<PAGE>
notice, and of the amount of such Bridge
Lender's Pro Rata Share of such
prepayment. If such notice is given by the
Borrower, the Borrower shall make
such prepayment and the payment amount
specified in such notice shall be due and
payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued
interest thereon, together with any
additional amounts required pursuant to
SECTION 3.05 of the Senior Credit
Agreement as incorporated herein by
reference pursuant to SECTION 3.01.
(b) MANDATORY. (i) Upon the sale by any Loan Party or any of
its Subsidiaries of any of its capital
stock or other Equity Interests, other
than (A) the sale of capital stock or other
Equity Interests of a Subsidiary of
a Loan Party to any Loan Party or (B) the
sale of capital stock or other Equity
Interests of a non-Guarantor to a
Subsidiary of a Loan Party that is a
non-Guarantor (in each case, to the extent
not prohibited by SECTIONS 7.03, 7.05
and 7.06 of the Senior Credit Agreement as
incorporated herein by reference
pursuant to SECTION 6.01), the Borrower
shall prepay an aggregate principal
amount of Bridge Loans equal to 100% of all
Net Cash Proceeds received therefrom
immediately upon receipt thereof by any
Loan Party or such Subsidiary to the
extent (A) such Net Cash Proceeds are not
required to be applied to any
Designated Senior Indebtedness and (B) any
such prepayment is not prohibited by
the terms of any Designated Senior
Indebtedness.
(c) (ii) Upon the incurrence or issuance by any Loan Party or
any of its Subsidiaries of any Indebtedness
(other than Indebtedness expressly
permitted to be incurred or issued pursuant
to SECTION 7.02(a), (b) OR (c) of
the Senior Credit Agreement as incorporated
herein by reference pursuant to
SECTION 6.01), the Borrower shall prepay an
aggregate principal amount of Bridge
Loans equal to 100% of all Net Cash
Proceeds received therefrom immediately upon
receipt thereof by any Loan Party or such
Subsidiary to the extent (A) such Net
Cash Proceeds are not required to be
applied to any Designated Senior
Indebtedness and (B) any such prepayment is
not prohibited by the terms of any
Designated Senior Indebtedness.
2.04 TERMINATION OR REDUCTION OF BRIDGE COMMITMENTS. (a)
OPTIONAL. The Borrower may, upon notice to
the Administrative Agent, terminate
the unused portions of the Bridge
Commitments or from time to time permanently
reduce the unused portions of the Bridge
Commitments; PROVIDED that (i) any such
notice shall be received by the
Administrative Agent not later than 12:00 p.m.
three Business Days prior to the date of
termination or reduction, (ii) any such
partial reduction shall be in an aggregate
amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof
and (iii) the Borrower shall not
terminate or reduce the unused portions of
the Bridge Commitments if, after
giving effect thereto and to any concurrent
prepayments hereunder, the Total
Outstandings would exceed the Aggregate
Bridge Commitments.
(b) MANDATORY. The Bridge Facility shall be automatically and
permanently reduced on the date of the
Bridge Borrowing (after giving effect to
the Bridge Borrowing), and from time to
time thereafter upon each repayment or
prepayment of the outstanding Bridge Loans,
by an amount equal to the amount by
which (A) the Bridge Facility immediately
prior to such reduction exceeds (B)
the aggregate principal amount of all
Bridge Loans outstanding at such time.
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24
<PAGE>
2.05 REPAYMENT OF BRIDGE LOANS. The Borrower shall repay to
the Administrative Agent for the ratable
account of the Bridge Lenders the
aggregate principal amount of all Bridge
Loans outstanding on the Maturity Date.
2.06 INTEREST. (a) Subject to the provisions of SECTION
2.06(b), (i) each Eurodollar Rate Loan
shall bear interest on the outstanding
principal amount thereof for each Interest
Period at a rate per annum equal to
the Eurodollar Rate for such Interest
Period plus the Applicable Rate; and (ii)
each Base Rate Loan shall bear interest on
the outstanding principal amount
thereof from the applicable borrowing date
at a rate per annum equal to the Base
Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Bridge
Loan Document is not paid when due (without
regard to any applicable grace
periods), whether at stated maturity, by
acceleration or otherwise, such amount
shall thereafter bear interest at a
fluctuating interest rate per annum at all
times equal to the Default Rate to the
fullest extent permitted by applicable
Laws. Furthermore, upon the request of the
Required Bridge Lenders, while any
Event of Default exists, the Borrower shall
pay interest on the principal amount
of all outstanding Obligations hereunder at
a fluctuating interest rate per
annum at all times equal to the Default
Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid
interest on past due amounts (including
interest on past due interest) shall be due
and payable upon demand.
(c) Interest on each Bridge Loan shall be due and payable in
arrears on each Interest Payment Date
applicable thereto and at such other times
as may be specified herein. Interest
hereunder shall be due and payable in
accordance with the terms hereof before and
after judgment, and before and after
the commencement of any proceeding under
any Debtor Relief Law.
2.07 FEES.
(a) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in
the
amounts and at the times specified in the Fee Letter. Such fees
shall
be fully earned when paid and shall not be refundable for any
reason
whatsoever.
(b) The Borrower shall pay to the Agents such fees as shall
have been separately agreed upon in writing in the amounts and at
the
times so specified. Such fees shall be fully earned when paid and
shall
not be refundable for any reason whatsoever.
2.08 COMPUTATION OF INTEREST AND FEES. All computations of
interest for Base Rate Loans when the Base
Rate is determined by Bank of
America's "prime rate" shall be made on
th
