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BANC OF AMERICA SECURITIES LLC AND CREDIT SUISSE FIRST BOSTON | BANK OF AMERICA, N.A. | BOYDS COLLECTION, LTD | FARALLON PARTNERS, LLC | FLEET NATIONAL BANK. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 99.2
Published CUSIP Number:
U.S.$65,000,000
CREDIT AGREEMENT
DATED AS OF FEBRUARY 23, 2005
AMONG
THE BOYDS COLLECTION, LTD.,
THE LENDERS LISTED HEREIN,
BANK OF AMERICA, N.A.,
AND
BANK OF AMERICA, N.A.,
BANC OF AMERICA SECURITIES LLC
AND CREDIT SUISSE FIRST BOSTON
THE BOYDS COLLECTION, LTD.
CREDIT AGREEMENT
TABLE OF CONTENTS
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Exhibits
Schedules
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, restated, supplemented and otherwise modified from time to time, this “Agreement”) is dated as of February 23, 2005, and is entered into by and among THE BOYDS COLLECTION, LTD. , a Maryland corporation (“Borrower”), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF AS LENDERS (each individually referred to herein as a “Lender” and collectively as “Lenders”), and BANK OF AMERICA, N.A. (“Bank of America”), as the initial L/C Issuer (as defined below) and as administrative agent for Lenders and L/C Issuer (together with its successors and permitted assigns in such capacity, “Administrative Agent”). This Agreement has been acknowledged and agreed to by FLEET NATIONAL BANK , in its capacity as the L/C Issuer with respect to the Existing Letters of Credit (defined below) and the parties hereto agree that Fleet National Bank shall benefit from the provisions hereof as the L/C Issuer with respect to the Existing Letters of Credit.
SECTION 1 . DEFINITIONS1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following meanings:
“Account Control Agreement” means each (i) with respect to each Deposit Account in the name of a Loan Party, account control agreement executed by a deposit bank, such Loan Party and the Administrative Agent substantially in the form of Exhibit A-1 attached hereto (with such changes thereto requested by such deposit bank as may be acceptable to the Administrative Agent and Borrower), and (ii) with respect to each securities account in the name of a Loan Party, account control agreement executed by a securities intermediary, such Loan Party and the Administrative Agent substantially in the form of Exhibit A-2 attached hereto (with such changes thereto requested by such securities intermediary as may be acceptable to the Administrative Agent and Borrower), as each of the same may be amended, restated, supplemented or otherwise modified from time to time; provided , that notwithstanding anything to the contrary herein or in any Collateral Document, so long as no Event of Default has occurred and is continuing, Account Control Agreements shall not be required with respect to Deposit Accounts and securities accounts in which deposits therein at any time do not in the aggregate exceed $100,000.
“Acquisition” means the acquisition by Borrower or any of its Subsidiaries (by purchase or otherwise) of all or substantially all of the business, property or fixed assets of, or the Capital Stock or other evidence of beneficial ownership of, any Person or any division, business unit or line of business of any Person.
“Act” has the meaning assigned to that term in subsection 10.21.
“Additional Assets” means: (i) any property, plant or equipment or other tangible assets used in or useful in the operation of the business of any Loan Party, (ii) the Capital Stock of a Person that becomes a Subsidiary as a result of the acquisition of such Capital Stock by a Loan Party, or (iii) Capital Stock constituting a minority interest in any Person that at such time
is a Subsidiary of Borrower, which, in each case of clause (ii) and clause (iii) is otherwise permitted under subsection 7.3 or 7.7(ii).
“Administrative Agent” has the meaning assigned to that term in the introduction to this Agreement.
“Administrative Agent Fee Letter” means that certain Engagement Letter, dated February 17, 2005, from Administrative Agent to Borrower and accepted by Borrower, as amended, restated, supplemented and otherwise modified from time to time.
“Affected Lender” has the meaning assigned to that term in subsection 2.6C.
“Affiliate”, as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to (i) vote 10% or more of the Voting Stock of such Person or (ii) direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
“Agreement” has the meaning assigned to that term in the introduction to this Agreement.
“Agreement Currency” has the meaning assigned to that term in subsection 10.22.
“Anti-Money Laundering Measures” has the meaning assigned to that term in subsection 5.12B.
“Anti-Terrorism Policies” has the meaning assigned to that term in subsection 6.12.
“Approved Fund” means any Fund that is administered or managed by a Lender, an Affiliate of a Lender, or an entity or an Affiliate of an entity that administers or manages a Lender.
“Asset Sale” means the sale, transfer, lease, assignment, conveyance or disposal by Borrower or any of its Subsidiaries to any Third Party of (i) any of the Capital Stock or other ownership interests of any of Borrower’s Subsidiaries, (ii) all or substantially all of the assets of any division or line of business of Borrower or any of its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of Borrower or any of its Subsidiaries outside of the ordinary course of business other than transfers permitted under subsection 7.7(i) , (iii) , (iv) and (vi)(a) .
“Assignment Agreement” means an Assignment Agreement in substantially the form of Exhibit B annexed hereto.
“Auto Extension Letter of Credit” has the meaning assigned to that term in subsection 3.1B(iii).
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“Bank of America” has the meaning assigned to that term in the introduction to this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Base Rate” means, at any time, the higher of (i) the Prime Rate and (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
“Base Rate Loans” means Loans bearing interest at rates determined by reference to the Base Rate as provided in subsection 2.2A.
“Borrower” has the meaning assigned to that term in the introduction to this Agreement.
“Borrower Materials” has the meaning assigned to that term in subsection 6.1A(xv).
“Business Day” means, for all purposes other than as covered by clause (ii) below, (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of New York City, New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and, (ii) with respect to all notices, determinations, fundings and payments in connection with LIBOR or any LIBOR Loans, any day that is a Business Day described in clause (i) above and that is also (a) a day for trading by and between banks in Dollar deposits in the London interbank market and (b) a day on which banking institutions are open for business in London.
“Capital Lease”, as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person.
“Capital Stock” means, with respect to any Person, any shares of common or preferred stock, any other equity securities, any limited liability company interests, any general or limited partnership interests or other equivalents of such Person, regardless of class or designation, and all warrants, options, purchase rights, conversion or exchange rights, voting rights, calls or claims of any character with respect thereto.
“Cash” means money, currency or a credit balance in a Deposit Account.
“Cash Collateral” means immediately available cash or Cash Equivalents in any Cash Collateral Account under the “control” (within the meaning of Section 9-104 of the Uniform Commercial Code) of the Administrative Agent, as security for any of the Obligations.
“Cash Collateral Account” means an account designated as such and established by the Administrative Agent in the name of the Administrative Agent maintained with the Administrative Agent in New York, New York.
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“Cash Equivalents” means (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within 24 months after the date of acquisition thereof; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within 24 months after the date of acquisition thereof and having, at the time of the acquisition thereof, an investment grade rating generally obtainable from either Standard & Poor’s Ratings Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”); (iii) commercial paper maturing no more than 12 months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s; (iv) domestic and eurodollar certificates of deposit or bankers’ acceptances maturing within 24 months after the date of acquisition thereof and issued or accepted by any Lender or by any other commercial bank that has combined capital and surplus of not less than $250,000,000; (v) repurchase agreements with a term of not more than 30 days for underlying securities of the types described in clauses (i), (ii) and (iv) above entered into with any commercial bank meeting the requirements specified in clause (iv) above or with any securities dealer of recognized national standing; (vi) shares of investment companies that are registered under the Investment Company Act of 1940, as amended and that invest solely in one or more of the types of investments referred to in clauses (i) through (v) above; and (vii) in the case of any Foreign Subsidiary, high quality, short-term liquid Investments made by such Foreign Subsidiary in the ordinary course of managing its surplus cash position in a manner consistent with past practices.
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (i) the adoption or taking of effect of any law, rule, regulation or treaty; (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
“Change of Control” means, and shall be deemed to have occurred, if: (i)(a) KKR, its Affiliates and the Management Group shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 35% of the outstanding Voting Stock of Borrower or (b) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the outstanding Voting Stock of Borrower that exceeds the percentage of such Voting Stock then beneficially owned, in the aggregate, by KKR, its Affiliates and the Management Group, unless , in the case of clause (b) above, KKR, its Affiliates and the Management Group shall, at the relevant time, have the collective right or ability, either by contract or pursuant to a written proxy or other written evidence of voting power, to elect or designate for election a majority of the Board of Directors of Borrower; or (ii) at any time Continuing Directors shall not constitute a majority of the Board of Directors of Borrower. For purposes of this definition, “Continuing Director” means, as of any date of determination, an individual (A) who is a member of the Board of Directors of Borrower on the Closing Date, (B) who, as of such date of determination, has been a member of such Board of Directors for at least the 12 preceding months (or, if such date of determination occurs during the period comprising the first 12 months after the Closing Date, since the Closing Date), or (C) who has been
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nominated to be a member of such Board of Directors, directly or indirectly, by KKR or Persons nominated by KKR or who has been nominated to be a member of such Board of Directors by a majority of the other Continuing Directors then in office.
“Class” means, as applied to Lenders, each of the following two classes of Lenders: (i) Lenders having Revolving Loan Exposure and (ii) Lenders having Term Loan Exposure.
“Closing Date” has the meaning assigned to that term in subsection 4.1.
“Collateral” means all of the personal property (including capital stock (or other equivalent equity interest)) and Real Property in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Access Agreement” means (a) a landlord waiver (with a copy of the relevant Lease attached) with respect to Collateral located at Real Property leased by a Loan Party, in each case, substantially in the form of Exhibit C-1 attached hereto (with such modifications as the Administrative Agent may approve in its sole discretion), (b) a bailee waiver with respect to Collateral maintained by a Loan Party, with a bailee, substantially in the form of Exhibit C-2 attached hereto (with such modifications as the Administrative Agent may approve in its sole discretion), and (c) a mortgagee waiver (with a copy of the relevant mortgage attached) with respect to Collateral located at Real Property mortgaged by any Loan Party, in form and substance satisfactory to the Administrative Agent.
“Collateral Documents” means the Account Control Agreements, the Collateral Access Agreements, Pledge Agreements, the Mortgages, the Copyright Security Agreement, the Trademark Security Agreement, this Agreement (with respect to Section 8 hereof), the Security Agreement, stock powers, note powers, and any security documents that may be entered into from time to time after the Closing Date by any Subsidiary of Borrower pursuant to subsection 6.7B, the Security Agreement or by Borrower pursuant to Section 8 or otherwise.
“Commercial Letter of Credit” means any letter of credit or similar instrument issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by any Loan Party in the ordinary course of business of such Loan Party.
“Commitments” means the commitments of Lenders to make Loans as set forth in subsection 2.1A.
“Commodities Agreement” means any forward commodities contract, commodities futures contract, commodities option contract or similar agreement or arrangement to which Borrower or any of its Subsidiaries is a party.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D annexed hereto delivered to Administrative Agent and Lenders by Borrower pursuant to subsection 6.1(iii).
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“Consolidated Adjusted EBITDA” means, with respect to any Person for any period, an amount equal to (i) Consolidated Net Income plus (ii) to the extent the following items are deducted in calculating such Consolidated Net Income, the sum, without duplication, of the amounts for such period of (a) Consolidated Interest Expense, (b) taxes computed on the basis of income, (c) total depreciation expense, (d) total amortization expense (including amortization of deferred financing fees), (e) any expenses or charges incurred in connection with any issuance of debt or equity Securities (including upfront fees payable in respect of bank facilities) to the extent the proceeds thereof are paid in accordance with subsection 2.4B(iii), (f) any deduction for minority interest expense, (g) (1) cash restructuring charges and expenses and other non-recurring cash charges and expenses, in each case related to (A) reduction, termination, redeployment, change in utilization, recruitment or relocation of employees and other personnel, (B) discontinuation, termination, disposition, closure or reduction of facilities, properties, technology or information management systems, leases, product lines, businesses or other programs or ventures, or (C) termination or modification of contracts, licenses, outsourcing and other business arrangements, and other items similar or related to the foregoing, (2) fees and expenses related to Investments and Acquisitions permitted hereunder, and (3) unusual or non-recurring legal expenses and payments related to the foregoing clause (g), in an aggregate amount for all charges and expenses added back pursuant to this clause (g) not exceeding $2,000,000 in any Fiscal Year or $6,000,000 in the aggregate during the term of this Agreement, provided , that Borrower shall provide a certificate to the Lenders concurrently with the quarterly and annual compliance certificates delivered pursuant to subsection 6.1A(iii) specifying the nature and amount of such items in reasonable detail, and (h) any other non-cash charges (including non-cash charges related to stock based awards), minus (iii) to the extent the following item is added in calculating such Consolidated Net Income, the amounts for such period of any non-cash gains, all of the foregoing as determined on a consolidated basis for such Person and its Subsidiaries in conformity with GAAP; provided that (X) Consolidated Adjusted EBITDA of any Included Pro Forma Entity shall be increased (if positive) or decreased (if negative) by any Pro Forma Adjustment applicable thereto and (Y) Consolidated Adjusted EBITDA of Borrower and its Subsidiaries shall be increased (if positive) or decreased (if negative) by the Net EBITDA Adjustment; provided , further , that “Consolidated Adjusted EBITDA” tested as of September 30, 2005, shall be deemed to be “Consolidated Adjusted EBITDA” for the first three Fiscal Quarters of 2005 multiplied by 4/3.
“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized as principal on the consolidated balance sheet of Borrower and its Subsidiaries) by Borrower and its Subsidiaries during that period that, in conformity with GAAP, are required to be classified as capital expenditures or are included in “additions to property, plant or equipment” or comparable items reflected in the consolidated statement of cash flows of Borrower and its Subsidiaries; provided that Consolidated Capital Expenditures shall not include (i) any such expenditures made in connection with the replacement, substitution, repair or restoration of any assets to the extent financed (a) with insurance proceeds received by Borrower or any of its Subsidiaries on account of the loss of, or any damage to, the assets being replaced, substituted for, repaired or restored or (b) with the proceeds of any compensation awarded to Borrower or any of its Subsidiaries as a result of the taking, by eminent domain or condemnation, of the assets being replaced or substituted for, in each case in accordance with subsection 6.4, (ii) any such expenditures made in connection with
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the purchase of Additional Assets with Net Asset Sale Proceeds to the extent permitted pursuant to subsection 2.4B(iii)(a) or (iii) the purchase price of any equipment that is purchased simultaneously with the trade-in of any existing equipment by Borrower or any of its Subsidiaries to the extent that the gross amount of such purchase price is reduced by any credit granted by the seller of such equipment for such equipment being traded in.
“Consolidated Current Assets” means, as at any date of determination, the total assets of Borrower and its Subsidiaries on a consolidated basis which may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.
“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Borrower and its Subsidiaries on a consolidated basis which may properly be classified as current liabilities in conformity with GAAP, excluding the current portions of Funded Debt.
“Consolidated Excess Cash Flow” means, for any Fiscal Year, an amount (if positive) equal to (i) the sum, without duplication, of the amounts for such Fiscal Year of (a) Consolidated Net Income, (b) the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income, (c) any net decrease in Consolidated Working Capital since the end of the preceding Fiscal Year, and (d) the aggregate net non-cash loss realized by Borrower and its Subsidiaries in connection with the sale, lease, transfer or other disposition of assets by Borrower and its Subsidiaries during such Fiscal Year (other than sales in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, minus (ii) the sum, without duplication, of the amounts for such Fiscal Year of (a) the amount of all non-cash credits to the extent added in arriving at such Consolidated Net Income, (b) Consolidated Capital Expenditures actually paid in Cash during such Fiscal Year (net of the principal amount of any Indebtedness incurred or equity issued to finance such Consolidated Capital Expenditures, whether incurred in such Fiscal Year or in the immediately succeeding Fiscal Year), (c) the aggregate amount of all prepayments of Revolving Loans to the extent accompanied by permanent reductions in the Revolving Loan Commitments other than any mandatory prepayments of the Revolving Loans pursuant to subsection 2.4B(iii), (d) the aggregate amount of all principal payments in respect of any Indebtedness of Borrower or any of its Subsidiaries (including the Term Loans and the principal component of any payments in respect of Capital Leases), other than (1) any mandatory prepayments of the Term Loans pursuant to subsection 2.4B(iii), (2) any prepayments of Indebtedness with the proceeds of other Indebtedness, or (3) repayments in respect of any revolving credit facility except to the extent there is a permanent reduction in commitments thereunder in connection with such repayments, (e) any net increase in Consolidated Working Capital since the end of the preceding Fiscal Year, (f) the aggregate net non-cash gain realized by Borrower and its Subsidiaries in connection with the sale, lease, transfer or other disposition of assets by Borrower and its Subsidiaries during such Fiscal Year (other than sales in the ordinary course of business), (g) the aggregate amount of all Cash payments made by Borrower and its Subsidiaries in respect of long-term liabilities of Borrower or any of its Subsidiaries other than Indebtedness, (h) the aggregate amount of new Investments made in Cash in accordance with subsection 7.3(v), (i) the aggregate amount of Cash consideration paid in connection with any Acquisitions (net of any such consideration paid out of any Net Asset Sale Proceeds), (j) the aggregate amount of any net currency gains realized by Borrower and its Subsidiaries during such Fiscal Year that are prohibited from being
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repatriated to the United States, and (k) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash during such Fiscal Year that are required in connection with any prepayment of Indebtedness and that are accounted for by Borrower as extraordinary items, all of the foregoing as determined on a consolidated basis for Borrower and its Subsidiaries in accordance with GAAP; provided that for the purposes of this definition the term “Fiscal Year” for the Fiscal Year 2005 shall mean the second, third and fourth Fiscal Quarters of 2005.
“Consolidated Interest Expense” means, with respect to any Person for any period, an amount equal to, without duplication, (i) total interest expense (including that portion attributable to Capital Leases in accordance with GAAP, capitalized interest and any administrative agency or unused facility or other similar fees payable in respect of bank facilities) of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, with respect to all outstanding Indebtedness of such Person and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financings and net costs under Interest Rate Agreements, but excluding, however, (a) any interest expense not payable in Cash during such period and (b) any amounts referred to in subsection 2.3 payable to Administrative Agent, L/C Issuer and Lenders on or before the Closing Date minus (ii) total interest income of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, but excluding, however, any interest income not received in Cash during such period; provided that Consolidated Interest Expense of Borrower and its Subsidiaries shall be increased (if positive) or decreased (if negative) by the Net Interest Adjustment.
“Consolidated Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii) Consolidated Adjusted EBITDA of Borrower and its Subsidiaries for the four-Fiscal Quarter period ending on such date.
“Consolidated Net Income” means, with respect to any Person (the “Subject Person”) for any period, the net income (or loss) of the Subject Person and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided that there shall be excluded (i) the income (or loss) of any Person in which any other Person (other than the Subject Person or any of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Subject Person or any of its Subsidiaries by the other Person during such period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Subject Person or is merged into or consolidated with the Subject Person or any of its Subsidiaries or that Person’s assets are acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax gains or losses, and any related fees and expenses, in each case to the extent attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv) any translation currency gains and losses, and (v) (to the extent not included in clauses (i) through (iv) above) any net extraordinary gains or net extraordinary losses.
“Consolidated Senior Debt” means, for any four-Fiscal Quarter period, the sum of (a) the outstanding principal amount of the Term Loans as of the last day of such period, (b) the outstanding principal amount of the Revolving Loans, L/C Borrowings and Letters of Credit as
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of the last day of such period, and (c) the outstanding principal amount of the Senior Subordinated Debt as of the last day of such period.
“Consolidated Senior Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (i) Consolidated Senior Debt as of such date to (ii) Consolidated Adjusted EBITDA of Borrower and its Subsidiaries for the four-Fiscal Quarter period ending on such date.
“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Borrower and its Subsidiaries under clauses (i), (ii) and (iii) of the definition of “Indebtedness” (but only to the extent, in the case of said clause (iii), of any drawings honored under letters of credit and not yet reimbursed by Borrower or any of its Subsidiaries), as determined on a consolidated basis in accordance with GAAP.
“Consolidated Working Capital” means, as at any date of determination, the excess (or deficit) of Consolidated Current Assets over Consolidated Current Liabilities.
“Contractual Obligation”, as applied to any Person, means any provision of any Security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Copyright Security Agreement” means (a) that certain Copyright Security Agreement, dated as of the date hereof, between Borrower and Administrative Agent substantially in the form attached hereto as Exhibit E and (b) each other copyright security agreement required to be delivered by any Loan Party pursuant to the Loan Documents in substantially the form of Exhibit E attached hereto, as each of the same may be amended, restated, supplemented and otherwise modified from time to time.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, currency futures contract, currency option contract, synthetic currency exchange rate cap or other similar agreement or arrangement to which Borrower or any of its Subsidiaries is a party.
“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 Period” has the meaning assigned to that term in subsection 2.9.
“Default Rate” has the meaning assigned to that term in subsection 2.2A.
“Defaulted Revolving Loan” has the meaning assigned to that term in subsection 2.9.
“Defaulting Lender” has the meaning assigned to that term in subsection 2.9.
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“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Designated Person” has the meaning assigned to that term in subsection 5.12A.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary of Borrower that is not a Foreign Subsidiary.
“Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund, and (iv) any other Person (other than a natural person) approved by (x) in the case of any assignment of a Revolving Loan Commitment, the L/C Issuer and Administrative Agent (in each case, with such approval not to be unreasonably withheld), and (y) unless an Event of Default has occurred and is continuing, Borrower (such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include Borrower or any of Borrower’s Affiliates or Subsidiaries.
“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by Borrower or any of its Subsidiaries (i) in the ordinary course of such Person’s business or (ii) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law (for purposes of this definition, “Claims”), including (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (b) any and all Claims by any Third Party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.
“Environmental Laws” means any and all present and future laws, statutes, ordinances, rules, regulations, requirements, restrictions, permits, orders, and determinations of any governmental authority that have the force and effect of law, and that pertain to pollution (including hazardous, toxic or dangerous substances), natural resources or the environment, whether federal, state, or local, domestic or foreign including environmental response laws such as the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and as the same may be further amended (hereinafter collectively called “CERCLA”).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any regulations promulgated thereunder.
“ERISA Affiliate” means any (i) corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as Borrower, (ii) partnership or other trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with Borrower, (iii) member of the
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same affiliated service group (within the meaning of Section 414(m) of the Code) as Borrower, any corporation described in clause (i) above, or any partnership or trade or business described in clause (ii) above or (iv) other Person which is required to be aggregated with the Borrower pursuant to Regulations promulgated under Section 414(o) of the Code.
“ERISA Event” means any of the following events or occurrences: (i) the failure to make a required contribution or payment to a Pension Plan or Multiemployer Plan; (ii) a withdrawal by Borrower, any of its Subsidiaries 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 operation which is treated as such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial withdrawal by Borrower, any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv) the filing of a notice of intent to terminate as required under Section 4041 of the Code, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate, in each case with respect to a Pension Plan or, to the knowledge of Borrower, any Multiemployer Plan; (v) 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, to the knowledge of the Borrower, any Multiemployer Plan; (vi) the imposition of any liability, whether direct or indirect, contingent or otherwise, under Title IV of ERISA (other than with respect to PBGC premiums due but not delinquent under Section 4007 of ERISA) upon Borrower, any of its Subsidiaries or any ERISA Affiliate; (vii) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Plan intended to qualify under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (ix) the violation of any applicable foreign law, or an event or occurrence that is comparable to any of the foregoing events or occurrences, in either case with respect to a Plan that is not subject to regulation under ERISA by reason of Section 4(b)(4) of ERISA; (x) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Pension Plan (other than an event for which the 30-day notice period is waived); (xi) the existence with respect to any Pension Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (xiii) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (xiv) the occurrence of a nonexempt prohibited transaction described in Section 406 of ERISA or 4975 of the Code with respect to any Plan which is not a Multiemployer Plan; (xv) an increase in the benefits of any existing Plan (other than any de minimis increases); or (xvi) the establishment of any new Plan or the commencement of contributions to any Plan to which Borrower or any ERISA Affiliate was not previously contributing; provided , that clause (xv) shall only constitute an ERISA Event for the purposes of subsection 6.1A(viii).
“Event of Default” means each of the events set forth in Section 8.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Pro Forma Entity” means, for any period, any Person, property, business or asset that is sold, transferred or otherwise disposed of by Borrower or any of its Subsidiaries to a Third Party during such period; provided that, for purposes of calculating any consolidated financial information for any Excluded Pro Forma Entity to be used in determining the Net EBITDA Adjustment or Net Interest Adjustment for such period, financial information pertaining to any Person, property, business or asset that was related to such Excluded Pro Forma Entity but that was not disposed of by Borrower or such Subsidiary shall not be consolidated with the relevant financial information of the Excluded Pro Forma Entity.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its Lending Office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which Borrower is located and (iii) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with subsection 2.7J, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment) to receive additional amounts from Borrower with respect to such withholding tax pursuant to subsection 2.7F.
“Executive Orders” has the meaning assigned to that term in subsection 5.12A.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of April 21, 1998, among Borrower, the lenders listed therein as lenders, DLJ Capital Funding, Inc. as syndication agent, The Fuji Bank, Limited New York Branch, as documentation agent and Fleet National Bank as administrative agent, as heretofore amended, restated, supplemented and otherwise modified.
“Existing Letters of Credit” means the Letters of Credit identified on Schedule 1.1 attached hereto.
“Federal Funds Effective Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by Administrative Agent.
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“Fee Letters” means, collectively, the Administrative Agent Fee Letter and the Lender Fee Letter.
“Financial Plan” has the meaning assigned to that term in subsection 6.1(ix).
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that (i) such Lien has priority over any other Lien on such Collateral and (ii) such Lien is the only Lien (other than Permitted Encumbrances) to which such Collateral is subject.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of each calendar year (or any other date to which such Fiscal Year-end is changed pursuant to subsection 6.10).
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which Borrower is a resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Subsidiary” means any Subsidiary of Borrower which is organized under the laws of any jurisdiction outside of the United States of America.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“Funded Debt”, as applied to any Person, means all Indebtedness for borrowed money of that Person (including any current portions thereof) which by its terms or by the terms of any instrument or agreement relating thereto matures more than one year from, or is directly renewable or extendable at the option of that Person to a date more than one year from (including an option of that Person under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more from), the date of the creation thereof.
“Funding and Payment Office” means (i) the office of Administrative Agent located at the office so indicated on Schedule 10.7 attached hereto or (ii) such other office of Administrative Agent as may from time to time hereafter be designated as such in a written notice delivered by Administrative Agent to Borrower, L/C Issuer and each Lender.
“Funding Date” means the date of the funding of a Loan.
“Funding Default” has the meaning assigned to that term in subsection 2.9.
“GAAP” means, subject to the limitations on the application thereof set forth in subsection 1.2, generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of
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the accounting profession in the United States, in each case as the same are applicable to the circumstances as of the date of determination.
“Governmental Authority” means any nation or government, any federal, state, province, territory, regional, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority, agency or court.
“Guarantee Obligations” means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “Primary Obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such Indebtedness or (b) to maintain working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor, (iii) to purchase property, Securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the Primary Obligor to make payment of such Indebtedness or (iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided , however , that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guaranties” means the Subsidiary Guaranty and any guaranty entered into by any Subsidiary of Borrower pursuant to subsection 6.7B.
“Hazardous Materials” means any substance that is defined or listed as a hazardous, toxic or dangerous substance under any present or future Environmental Law or that is otherwise regulated or prohibited or subject to investigation or remediation under any present or future Environmental Law because of its hazardous, toxic, or dangerous properties, including (i) any substance that is a “hazardous substance” under CERCLA (as defined in the definition of “Environmental Laws”) and (ii) petroleum wastes or products.
“Hedge Agreement” means any Interest Rate Agreement, Commodities Agreement or Currency Agreement designed to hedge against fluctuations in interest rates, the price or availability of commodities, or currency values, respectively.
“Honor Date” has the meaning assigned to that term in subsection 3.1C.
“Included Pro Forma Entity” means, for any period, any Person, property, business or asset that is acquired by Borrower or any of its Subsidiaries from a Third Party
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during such period and not subsequently sold, transferred or otherwise disposed of by Borrower or such Subsidiary to a Third Party during such period; provided that, for purposes of calculating any consolidated financial information for any Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or Net Interest Adjustment for such period, financial information pertaining to any Person, property, business or asset that was related to such Included Pro Forma Entity but that was not acquired by Borrower or such Subsidiary shall not be consolidated with the relevant financial information of the Included Pro Forma Entity.
“Indebtedness”, as applied to any Person, means (i) all indebtedness of such Person for borrowed money, (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet of such Person in conformity with GAAP, (iii) any obligation incurred by such Person in connection with banker’s acceptances and the maximum aggregate amount from time to time available for drawing under all outstanding letters of credit issued for the account of such Person together, without duplication, with the amount of all honored but unreimbursed drawings thereunder, (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA), which purchase price (a) is due more than six months from the date of incurrence of the obligation in respect thereof and (b) would be shown on the liability side of the balance sheet of such Person in accordance with GAAP, (v) all monetary obligations of such Person under Hedge Agreements (it being understood that monetary obligations under Interest Rate Agreements, Commodities Agreements and Currency Agreements other than Hedge Agreements constitute Investments and not Indebtedness), and (vi) all indebtedness referred to in clauses (i) through (iv) above secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; provided that the term “Indebtedness” shall in no event include any trade payables or accrued expenses arising in the ordinary course of business.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnitee” has the meaning assigned to that term in subsection 10.3.
“Information” has the meaning assigned to that term in subsection 10.17.
“Intellectual Property” has the meaning assigned to that term in the Security Agreement to which Borrower is a party.
“Interest Payment Date” means (i) with respect to any Base Rate Loan, the first Business Day of each calendar month, commencing on the first such date to occur after the Closing Date, and (ii) with respect to any LIBOR Loan, the last day of each Interest Period applicable to such Loan.
“Interest Period” has the meaning assigned to that term in subsection 2.2B.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement to which Borrower or any of its Subsidiaries is a party.
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“Interest Rate Determination Date” means with respect to any Interest Period relating to a Loan, the second Business Day prior to the first day of such Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Investment” means (i) any purchase or other acquisition by Borrower or any of its Subsidiaries of, or of a beneficial interest in, any Securities of any other Person (other than a Person that prior to such purchase or acquisition was a Loan Party), (ii) any loan, advance or capital contribution by Borrower or any of its Subsidiaries to any Third Party, including all indebtedness and accounts receivable from that Third Party that are not current assets or did not arise from sales to that Third Party in the ordinary course of business, or (iii) any monetary obligations under Interest Rate Agreements, Commodities Agreements or Currency Agreements not constituting Hedge Agreements. The amount of any Investment shall be (A) the original cost of such Investment without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, minus (B) the lesser of (1) the aggregate amount of any repayments, redemptions, dividends or distributions thereon or proceeds from the sale thereof, in each case to the extent of Cash payments (including any Cash received by way of deferred payment pursuant to, or monetization of, a note receivable or otherwise, but only as and when so received) actually received by Borrower or the applicable Subsidiary of Borrower, and (2) the aggregate amount described in the immediately preceding clause (A).
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any other Loan Party) or in favor of the L/C Issuer and relating to any such Letter of Credit, in each case, as amended, restated, supplemented and otherwise modified from time to time.
“Judgment Currency” has the meaning assigned to that term in subsection 10.22.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided that in no event shall any Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“KKR” means Kohlberg Kravis Roberts & Co. L.P.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan.
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“L/C Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means (a) Fleet National Bank in its capacity as issuer of the Existing Letters of Credit and (b) Bank of America in its capacity as issuer of Letters of Credit (other than the Existing Letters of Credit) hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Law” means any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Internal Revenue Code, the Securities Act, the Securities Exchange Act, Regulations U and X, ERISA, and any similar statute of any foreign government or any political subdivision thereof and any certificate of occupancy, zoning ordinance, building, or land use requirement or permit or labor or employment rule or regulation.
“Lender” and “Lenders” means the persons identified as “Lenders” and listed on the signature pages of this Agreement, together with their successors and permitted assigns pursuant to subsection 10.1; provided that the term “Lenders”, when used in the context of a particular Commitment, shall mean Lenders having that Commitment.
“Lender Fee Letter” means that certain Fee Letter from Farallon Capital Management, LLC and Canyon Capital Advisors LLC to Borrower, dated February 2, 2005, as amended, restated, supplemented and otherwise modified from time to time.
“Lender Information Memorandum” means the materials entitled “Boyds Collection Lenders Presentation” dated January 2005.
“Lending Office” means, as to any Lender, the office or offices of such Lender specified on Schedule 2.1 annexed hereto (with respect to Lenders listed on the signature pages hereof) or in the Assignment Agreement pursuant to which it became or becomes a Lender, or such other office or offices as such Lender may have or may from time to time hereafter designate as such in a written notice delivered by such Lender to Borrower and Administrative Agent.
“Letter of Credit” or “Letters of Credit” means the Existing Letters of Credit, and Commercial Letters of Credit and Standby Letters of Credit issued or to be issued by L/C Issuer for the account of any Loan Party pursuant to subsection 3.1.
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“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Fees” has the meaning assigned to such term in subsection 3.1I.
“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” means $10,000,000, which is part of, and not in addition to, the Commitments.
“Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum aggregate amount which is or at any time thereafter may become available for drawing under all Letters of Credit then outstanding (whether or not the conditions to drawing can be met thereunder) plus (ii) the aggregate amount of all drawings under Letters of Credit honored by L/C Issuers and not theretofore reimbursed by Borrower (including any such reimbursement out of the proceeds of Revolving Loans or L/C Advances pursuant to subsection 3.1).
“LIBOR” means for any Interest Period with respect to a LIBOR Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Where,
“LIBOR Base Rate” means, for such Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “LIBOR Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, 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 (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
“LIBOR 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 Lender, under regulations issued from time
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to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). LIBOR for each outstanding LIBOR Loan shall be adjusted automatically as of the effective date of any change in the LIBOR Reserve Percentage.
“LIBOR Loans” means Loans bearing interest at rates determined by reference to LIBOR as provided in subsection 2.2A.
“Lien” means any lien, mortgage, pledge, assignment, security interest, charge or other similar encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and any other similar preferential arrangement having the practical effect of any of the foregoing.
“Lists” has the meaning assigned to that term in subsection 5.12A.
“Loan” or “Loans” means one or more of the Term Loans or Revolving Loans or any combination thereof.
“Loan Documents” means this Agreement, the Notes, the Fee Letters, the Letters of Credit (and any Letter of Credit Applications), the Guaranties, Notices of Borrowing, Notices of Conversion/Continuation, the Collateral Documents, and all other agreements or instruments executed and delivered or to be executed and delivered in connection herewith or therewith, as any of the same may be amended, restated, supplemented and otherwise modified from time to time.
“Loan Party” means Borrower, each Subsidiary Guarantor and each Subsidiary executing and delivering a Loan Document after the Closing Date pursuant to subsection 6.7B, and “Loan Parties” means all such Persons, collectively.
“Management Group” means, at any time, the Chairman of the Board, the President, the chief executive officer, the chief operating officer, any Executive Vice President or Vice President, the Treasurer and the Secretary of Borrower at such time.
“Margin Stock” has the meaning assigned to that term in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Master Pledge Agreement” means the Master Pledge Agreement executed and delivered on the Closing Date by Borrower and Administrative Agent, substantially in the form of Exhibit F annexed hereto, as such Master Pledge Agreement may thereafter be amended, supplemented or otherwise modified from time to time.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, properties, performance, prospects or financial condition of Borrower or Borrower and its Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform its obligations under this Agreement and the other Loan Documents, or (c) the rights and remedies of Administrative Agent, Lenders and L/C Issuer under this Agreement and the other Loan Documents.
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“Material Foreign Subsidiary” means a Foreign Subsidiary which, on a consolidated basis for such Foreign Subsidiary and its Subsidiaries, (a) for the most recent Fiscal Year accounted for more than 5% of the consolidated gross revenues of Borrower and its Subsidiaries or (b) as at the end of such Fiscal Year, was the owner of more than 5% of the consolidated total assets of Borrower and its Subsidiaries.
“Maturity Date” means the earlier of the third anniversary of the Closing Date and the date that is 90 days prior to the maturity of the Senior Subordinated Debt.
“Maximum Rate” has the meaning assigned to that term in subsection 10.23.
“Moody’s” has the meaning assigned to that term in the definition of “Cash Equivalents”.
“Mortgaged Real Property” means the Real Property designated as such on Schedule 5.5 attached hereto.
“Mortgages” means each of the mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust, collateral assignments of leases or other real estate security documents delivered by any Loan Party to Administrative Agent on behalf of itself and Lenders with respect to the Mortgaged Properties, all in form and substance reasonably satisfactory to Requisite Lenders, in each case as amended, restated, supplemented and otherwise modified from time to time.
“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years was, contributed to by either Borrower or any ERISA Affiliate.
“Myrtle Beach Lease” means that certain Lease, dated July 12, 2004, between Myrtle Beach Farms Company, Inc., and The Boyds Collection – Myrtle Beach, LLC, as amended to extend the cancellation period set forth in Section 1.07 therein.
“Net Asset Sale Proceeds” means, (a) with respect to any Asset Sale, Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received from such Asset Sale, net of (i) the costs and expenses relating to such Asset Sale, (ii) all taxes paid or estimated to be payable in connection with such Asset Sale, (iii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a senior Lien on the stock or assets in question (to the extent such Liens constitute Permitted Encumbrances hereunder) and that is required to be repaid under the terms thereof as a result of such Asset Sale and (iv) the amount of any reasonable reserves established in accordance with GAAP against any liabilities (other than taxes described in clause (ii) above) that are (a) associated with the assets that are the subject of such Asset Sale and (b) retained by Borrower or any of its Subsidiaries; provided that (X) in the event the amount of any taxes estimated to be payable as described in clause (ii) above exceeds the amount actually paid, Borrower or the applicable Subsidiary shall be deemed to have received Net Asset Sale Proceeds in the amount of such excess on the date such taxes are paid, and (Y) upon any subsequent reduction in the amount of any reserve described in clause (iv) above (other than in connection
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with a payment by Borrower or the applicable Subsidiary in respect of the applicable liability), Borrower or the applicable Subsidiary shall be deemed to have received Net Asset Sale Proceeds on the date and in the amount of such reduction, and (b) proceeds of insurance on account of the loss of or damage to any property of Borrower or any Subsidiary, and payments of compensation for any such property or properties taken by condemnation or eminent domain (“Insurance Net Proceeds”).
“Net Cash Proceeds of Issuance of Equity Securities or Indebtedness” means (i) net cash proceeds (including cash, equivalents readily convertible into cash, and such proceeds of any notes received as consideration or any other non-cash consideration when any Loan Party receives payment thereon) received by any Loan Party or any Subsidiary of any Loan Party at any time after the Closing Date on account of the issuance of (a) equity Securities of any Loan Party (other than Capital Stock of a Subsidiary issued to any Loan Party) or (b) Indebtedness (other than Indebtedness of any Loan Party permitted under subsections 7.1(i) through (iv), (vi) through (ix) and subsection 7.1(x), provided that for any Indebtedness permitted under subsection 7.1(x) in excess of $500,000, only Subordinated Indebtedness shall be excluded), in each case net of all reasonable transaction costs and underwriters’ discounts with respect thereto; and (ii) proceeds received by any Loan Party at any time after the Closing Date as a contribution to its capital on account of the issuance after the Closing Date of additional equity Securities of such Loan Party.
“Net EBITDA Adjustment” means, for any period, an amount equal to (i) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Included Pro Forma Entities (calculated for the entire such period for each such Included Pro Forma Entity as if such Included Pro Forma Entity had become an Included Pro Forma Entity on the first day of such period) minus (ii) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Excluded Pro Forma Entities (calculated for the entire such period for each such Excluded Pro Forma Entity, including any portion thereof prior to the date on which it became an Excluded Pro Forma Entity).
“Net Interest Adjustment” means, for any period, an amount equal to (i) the sum of the aggregate of the amounts of Consolidated Interest Expense for any Included Pro Forma Entities (calculated for the entire such period for each such Included Pro Forma Entity, including any portion thereof prior to the date on which it became an Included Pro Forma Entity, in each case on a pro forma basis as if any Indebtedness of such Included Pro Forma Entity that was incurred, assumed or prepaid in connection with the transaction pursuant to which it became an Included Pro Forma Entity had been incurred, assumed or prepaid on the first day of such period) minus (ii) the sum of the aggregate of the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities (calculated for the entire such period for each such Excluded Pro Forma Entity, including any portion thereof prior to the date on which it became an Excluded Pro Forma Entity).
“Non-Extension Notice Date” has the meaning assigned to that term in subsection 3.1B.
“Notes” means one or more of the Term Notes, Revolving Notes or any combination thereof.
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“Notice of Borrowing” means a notice substantially in the form of Exhibit G annexed hereto delivered by Borrower to Administrative Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit H annexed hereto delivered by Borrower to Administrative Agent pursuant to subsection 2.2D with respect to a proposed conversion or continuation of the applicable basis for determining the interest rate with respect to the Loans specified therein.
“Obligations” means all monetary obligations of every nature of each Loan Party from time to time owed to Administrative Agent, Lenders, L/C Issuer or any of them under the Loan Documents, whether for principal, interest, reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
“OFAC” has the meaning assigned to that term in subsection 5.12A.
“OFAC Laws and Regulations” has the meaning assigned to that term in subsection 5.12A.
“Officer’s Certificate” means, as applied to any corporation, a certificate executed on behalf of such corporation by a Responsible Officer thereof.
“Other Lists” has the meaning assigned to that term in subsection 5.12A.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
“Outstanding Amount” means, with respect to any L/C Obligations on any date, the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed Amounts
“Paid In Full”, “Pay In Full” and “Payment In Full” means that all Obligations shall have been paid in full and the Commitments shall have been terminated, including, (a) with respect to each Letter of Credit issued hereunder, (i) the termination and surrender for cancellation of such Letter of Credit or (ii) the delivery of Cash Collateral in an aggregate principal amount equal to 105.0% of the undrawn face amount of each Letter of Credit, in such form as requested by the Administrative Agent for deposit in the appropriate Cash Collateral Account, and (b) with respect to all other Obligations (other than, as of any date of payment, Obligations which are contingent and unliquidated and not then due and owing and which pursuant to subsection 10.8, survive the making and repayment of the Loans, the issuance and discharge of Letters of Credit hereunder and the termination of the Commitments hereunder), the payment in full in cash of such Obligations.
“Participant” has the meaning assigned to that term in subsection 10.1D.
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“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means a pension plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) in respect of which Borrower or any ERISA Affiliate is, or within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of ERISA.
“Permitted Encumbrances” means the following types of Liens:
(i) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that payment thereof is otherwise not, at the time, required by subsection 6.3;
(ii) Liens in respect of property or assets imposed by law, such as carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business, in each case so long as such Liens do not, individually or in the aggregate, have a Material Adverse Effect, and otherwise do not secure obligations which are overdue by more than 30 days unless such obligations are being contested in accordance with subsection 6.3;
(iii) Liens (other than any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (exclusive of obligations in respect of payments for borrowed money);
(iv) Liens consisting of judgment or judicial attachment liens in circumstances not constituting an Event of Default under subsection 8.8;
(v) easements, rights-of-way, restrictions, minor defects or irregularities of title and other similar encumbrances not interfering in any material respect with the business of Borrower and its Subsidiaries, taken as a whole;
(vi) Liens arising solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights and remedies with respect to deposit accounts or other funds maintained with a creditor depository institution; provided that the applicable deposit account is not a cash collateral account;
(vii) any interest or title of a lessor, or secured by a lessor’s interest under, any lease permitted by this Agreement;
(viii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
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(ix) Liens on goods the purchase price of which is financed by a Commercial Letter of Credit issued for the account of Borrower; provided that such Lien secures only the obligations of Borrower or such Subsidiary in respect of such Commercial Letter of Credit to the extent permitted under this Agreement;
(x) Liens securing obligations in respect of Capital Leases on assets subject to such Capital Leases, provided that such Capital Leases are otherwise permitted hereunder; and
(xi) leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments (whether federal, state or local, domestic or foreign, and including political subdivisions thereof) and agencies or other administrative or regulatory bodies thereof.
“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which Borrower or any of its Subsidiaries or ERISA Affiliates sponsors or maintains, or to which Borrower or any of its Subsidiaries or ERISA Affiliates makes, is making or is obligated to make contributions, or to which Borrower or any of its Subsidiaries or ERISA Affiliates has, or could reasonably be expected to have, any liability, and includes any Pension Plan.
“Platform” has the meaning assigned to that term in subsection 6.1A(xv).
“Pledge Agreements” means the Master Pledge Agreement and any pledge agreements or other similar instruments that any Loan Party may enter into from time to time after the Closing Date with respect to any Material Foreign Subsidiary pursuant to the terms of the Master Pledge Agreement, as such agreements or instruments may thereafter be amended, restated, supplemented or otherwise modified from time to time.
“Pledged Collateral” means, collectively, the “Pledged Collateral” as defined in each Pledge Agreement.
“Pledged Entity” has the meaning assigned to that term in subsection 5.1.
“Postponed Prepayments” has the meaning assigned to that term in subsection 2.4B(iii).
“Potential Event of Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Prime Rate” means the rate that Bank of America announces from time to time as its prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Bank of America or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
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“Pro Forma Adjustment” means, for any period with respect to any Included Pro Forma Entity, the pro forma increase or decrease in the Consolidated Adjusted EBITDA of such Included Pro Forma Entity that Borrower in good faith predicts will occur as a result of reasonably identifiable and supportable net cost savings or additional net costs or a reasonably identifiable and supportable increase in sales volume, as the case may be, that will be realizable during such period by combining the operations of such Included Pro Forma Entity with the operations of Borrower and its Subsidiaries; provided that, so long as such net cost savings or additional net costs or increase in sales volume will be realizable at any time during such period it shall be assumed, for purposes of projecting such pro forma increase or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or additional net costs or increase in sales volume will be realizable during the entire such period; and provided , further that any such pro forma increase or decrease in such Consolidated Adjusted EBITDA shall be without duplication of any net cost savings or additional net costs or increase in sales volume actually realized during such period and already included in such Consolidated Adjusted EBITDA.
“Pro Forma Adjustment Certificate” shall mean a certificate of a Responsible Officer of Borrower delivered pursuant to subsection 6.1(xii) setting forth the information described in clause (d) of subsection 6.1(iii).
“Pro Forma Test Period” has the meaning assigned to that term in subsection 7.7(ii).
“Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Term Loan Commitment or the Term Loan of any Lender, the percentage obtained by dividing (x) the Term Loan Exposure of that Lender (y) the aggregate Term Loan Exposure of all Lenders, (ii) with respect to all payments, computations and other matters relating to the Revolving Loan Commitment or the Revolving Loans of any Lender or any Letters of Credit issued or participations therein purchased by any Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, and (iii) for all other purposes with respect to each Lender, the percentage obtained by dividing (x) the sum of the Term Loan Exposure of that Lender plus the Revolving Loan Exposure of that Lender by (y) the sum of the aggregate Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of each Lender for purposes of each of clauses (i), (ii) and (iii) of the preceding sentence is set forth opposite the name of that Lender in Schedule 2.1 annexed hereto.
“Real Estate” has the meaning assigned to that term in subsection 6.1.
“Real Property” means, with respect to any Person, all of such Person’s present and future right, title and interest (including, without limitation, any leasehold estate) in real property.
“Register” has the meaning assigned to that term in subsection 10.1C.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
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“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Replacement Proceeds” means the amount of (a) proceeds of insurance paid on account of the loss of or damage to any property of any Loan Party or any of its Subsidiaries and awards of compensation for property of any Loan Party or any of its Subsidiaries taken by condemnation or eminent domain to the extent actually used to replace, rebuild or restore the property so lost, damaged or taken, provided that (i) Borrower shall have delivered written notice to the Administrative Agent that it or the applicable Loan Party intends to so replace, rebuild or restore such property, and (ii) Borrower or such applicable Loan Party replaces or commences the restoration or rebuilding of such property within 180 days after the Administrative Agent’s receipt of the proceeds of such insurance payment or condemnation award and (b) insurance paid on account of a business interruption occurrence to the extent actually used in the restoration or conduct of the business interrupted; provided , that, in each case of clause (a) and clause (b), if such aggregate proceeds exceed $2,500,000, such proceeds shall not constitute Replacement Proceeds.
“Requisite Class Lenders” means, at any time of determination (i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or holding more than 55% of the aggregate Revolving Loan Exposure of all Lenders, and (ii) for the Class of Lenders having Term Loan Exposure, Lenders having or holding more than 55% of the aggregate Term Loan Exposure of all Lenders.
“Requisite Lenders” means Lenders having or holding more than 55% of the sum of the aggregate Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all Lenders.
“Responsible Officer” means, with respect to any Person, its chief executive officer, chief operating officer, president, or any vice president, managing director, treasurer, controller or other officer of such Person having substantially the same authority and responsibility; provided that, with respect to compliance with financial covenants or the delivery of financial statements and related financial reports, “Responsible Officer” means the chief financial officer, treasurer or controller of Borrower, or any other Responsible Officer of Borrower whose responsibilities include substantially the same authority and responsibility.
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of Borrower now or hereafter outstanding, except a dividend payable solely in shares of common stock of Borrower or payable solely in shares of that class of stock to the holders of that class, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of Borrower now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of Borrower now or hereafter outstanding, and (iv) any payment or prepayment of principal of, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness.
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“Revolving Loan Commitment” means the commitment of a Lender to make Revolving Loans to Borrower pursuant to subsection 2.1A(ii), and “Revolving Loan Commitments” means such commitments of all Lenders in the aggregate.
“Revolving Loan Exposure” means, with respect to any Lender as of any date of determination (i) prior to the termination of the Revolving Loan Commitments, that Lender’s Revolving Loan Commitment and (ii) after the termination of the Revolving Loan Commitments, the sum, without duplication, of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender plus (b) the aggregate amount of all participations purchased by that Lender in any outstanding Letters of Credit (including any L/C Advances) or any unreimbursed drawings under any Letters of Credit.
“Revolving Loans” means the Loans made by Lenders to Borrower pursuant to subsection 2.1A(ii), and shall include L/C Advances made by the Lenders.
“Revolving Notes” means (i) any promissory notes of Borrower issued pursuant to subsection 2.1D to evidence the Revolving Loans of any Lenders and (ii) any promissory notes issued by Borrower pursuant to the last sentence of subsection 10.1B(i) in connection with assignments of the Revolving Loan Commitments and Revolving Loans of any Lenders, in each case substantially in the form of Exhibit I-2 annexed hereto, as they may be amended, supplemented or otherwise modified from time to time.
“S&P” has the meaning assigned to that term in the definition of “Cash Equivalents”.
“SDN List” has the meaning assigned to that term in subsection 5.12A.
“SEC” means the Securities and Exchange Commission or any successor thereto.
“Securities” means any stock, shares, partnership interests, limited liability company interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Security Agreement” means (a) the Security Agreement dated as of the Closing Date among the Loan Parties and Administrative Agent, substantially in the form and substance attached hereto as Exhibit J , and (b) each other security agreement executed and delivered by a Material Foreign Subsidiary in favor of Administrative Agent pursuant to subsection 6.7, as each of the same may be amended, restated, supplemented and otherwise modified from time to time.
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“Senior Subordinated Debt” means the $34,400,000 in aggregate principal amount of Senior Subordinated Debt Notes.
“Senior Subordinated Debt Documents” means the Senior Subordinated Debt Indenture, the Senior Subordinated Debt Notes and the Senior Subordinated Debt Guarantee, collectively.
“Senior Subordinated Debt Guarantee” means any subordinated guaranty made by Subsidiaries of Borrower in favor of the holders of the Senior Subordinated Debt Notes pursuant to the Senior Subordinated Debt Indenture, the subordination provisions of which shall be on terms substantially the same as the subordination provisions in the Senior Subordinated Debt Indenture, as such subordinated guaranty may be amended from time to time.
“Senior Subordinated Debt Indenture” means the indenture pursuant to which the Senior Subordinated Debt is issued, as such indenture may be amended from time to time.
“Senior Subordinated Debt Notes” means the 9% Senior Subordinated Notes due 2008 of Borrower issued pursuant to the Senior Subordinated Debt Indenture and substantially in the form set forth in Article II thereof, as such Senior Subordinated Notes may be amended from time to time.
“Solvent” means, when used with respect to any Person, that at the time of determination:
(a) the assets of such Person, at a fair valuation, are in excess of the total amount of its debts (including, without limitation, contingent liabilities); and
(b) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured; and
(c) it is then able and expects to be able to pay its debts (including, without limitation, contingent debts and other commitments) as they mature; and
(d) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
For purposes of determining (i) whether a Person is Solvent, the amount of any contingent liability shall be computed as the amount that, in 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, and (ii) whether Borrower and its Subsidiaries are Solvent, such determination may assume that the Obligations will be refinanced on the Maturity Date.
“Standby Letter of Credit” means any standby letter of credit or similar instrument issued for the purpose of supporting (i) Indebtedness of any Loan Party in respect of industrial revenue or development bonds or financings, (ii) workers’ compensation liabilities of any Loan Party, (iii) the obligations of third party insurers of any Loan Party arising by virtue of the laws of any jurisdiction requiring third party insurers, (iv) obligations with respect to Capital Leases or operating leases of any Loan Party, and (v) other lawful corporate purposes of any Loan Party.
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“Subordinated Indebtedness” means (i) the Indebtedness of Borrower evidenced by the Senior Subordinated Debt, together with any Indebtedness of Borrower refinancing the Senior Subordinated Debt in accordance with subsection 7.1(ix), (ii) other Indebtedness which by its terms is subordinated to the Obligations and (iii) Indebtedness arising from intercompany loans between any Loan Party and any other Loan Party.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.
“Subsidiary Guarantor” means (a) each Domestic Subsidiary as of the Closing Date, (b) each Material Foreign Subsidiary as of the Closing Date, and (c) each other Subsidiary that from time to time executes and delivers a counterpart of the Subsidiary Guaranty pursuant to subsection 6.7; provided , that neither H.C. Accents & Associates Inc., an Illinois corporation, nor J&T Designs & Imaginations Inc., a Texas corporation shall be required to become Subsidiary Guarantors unless such Person fails to be dissolved prior to the six-month anniversary of the Closing Date or otherwise commences to conduct business.
“Subsidiary Guaranty” means (a) the Subsidiary Guaranty executed and delivered by Subsidiary Guarantors, substantially in the form of Exhibit K-1 annexed hereto, and (b) with respect to each Material Foreign Subsidiary, a guaranty by such Material Foreign Subsidiary in favor of Administrative Agent (for the benefit of Lenders and L/C Issuer) in substantially the form and substance of Exhibit K-2 attached hereto, as each such Subsidiary Guaranty may thereafter be amended, restated, supplemented or otherwise modified from time to time.
“Supermajority Lenders” means, at any time of determination Lenders having or holding more than 66 2/3% of the sum of (x) the aggregate Revolving Loan Exposure of all Lenders and (y) the aggregate Term Loan Exposure of all Lenders.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” means the earlier of (i) the Maturity Date and (ii) such earlier date on which the Commitments may be terminated pursuant to subsection 2.4B or Section 8.
“Term Lender” means a Lender that has Term Loan Exposure.
“Term Loan Commitment” means the commitment of a Lender to make a Term Loan to Borrower pursuant to subsection 2.1A(i), and “Term Loan Commitments” means such commitments of all Lenders in the aggregate.
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“Term Loan Exposure” means, with respect to any Lender as of any date of determination (i) prior to the funding of the Term Loans, that Lender’s Term Loan Commitment and (ii) after the funding of the Term Loans, the outstanding principal amount of the Term Loan of that Lender.
“Term Loans” means the Loans made as Term Loans by Lenders to Borrower pursuant to subsection 2.1A(i).
“Term Notes” means any promissory notes of Borrower issued pursuant to subsection 2.1D to evidence the Term Loans of any Lenders, substantially in the form of Exhibit I-1 annexed hereto, as any such note may be amended, supplemented or otherwise modified from time to time.
“Third Party” means any Person other than a Borrower or any of its Subsidiaries.
“Total Utilization of Revolving Loan Commitments” means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of reimbursing the applicable L/C Issuer for any amount drawn under any Letter of Credit but not yet so applied) plus (ii) the Letter of Credit Usage.
“Trademark Security Agreements” means (a) the Trademark Security Agreement dated as of the Closing Date by and between the Loan Parties and the Administrative Agent substantially in the form of Exhibit M attached hereto, and (b) each Trademark Security Agreement required to be delivered by a Subsidiary pursuant to subsection 6.7, as each of the same may be further amended, supplemented or otherwise modified from time to time.
“Transaction Costs” means the fees, costs and expenses payable by Borrower in connection with the transactions contemplated by the Loan Documents on or before the Closing Date.
“Type” means, as applied to any Loan, whether such Loan is a Term Loan or a Revolving Loan.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“Unfunded Pension Liability” means, with respect to any Pension Plan, the amount of unfunded benefit liabilities of such Pension Plan as defined in Section 4001(a)(18) of ERISA.
“Unreimbursed Amount” has the meaning assigned to that term in subsection 3.1C.
“Voting Stock” means, with respect to any Person, Securities of such Person having ordinary voting power (without regard to the occurrence of any contingency) to vote in the election of directors of such Person.
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1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.
Except as otherwise expressly provided in this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. All computations made for purposes of determining any Consolidated Leverage Ratio or any amount of Consolidated Excess Cash Flow or for purposes of determining compliance with any of the provisions of Section 7, including any related computations of amounts represented by terms defined in subsection 1.1, shall utilize accounting principles and policies in effect at the time of preparation of, and consistent with those used to prepare, the historical financial statements of Borrower and its Subsidiaries described in subsection 5.3. Financial statements and other information required to be delivered by Borrower to Lenders pursuant to clauses (i), (ii), (xii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation; provided that if any of the computations described in the immediately preceding sentence shall at any time utilize accounting principles and policies different from those utilized in preparing the financial statements referred to in this sentence, such financial statements shall be delivered together with reconciliation worksheets showing in reasonable detail the differences that would result in such computations if the accounting principles and policies utilized in preparing such financial statements were utilized in making such computations.
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.B. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided.C. The use in any of the Loan Documents of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
SECTION 2 . AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes.
A. Commitments . Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Borrower herein set forth, each Lender hereby severally agrees to make the Loans described in subsections 2.1A(i) and 2.1A(ii).
(i) Term Loans . Each Lender shall loan to Borrower on the Closing Date an amount not exceeding its Pro Rata Share of the aggregate amount of the Term Loan Commitments to be used for the purposes identified in subsection 2.5. The amount of each Lender’s Term Loan Commitment is set forth opposite its name on Schedule 2.1
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annexed hereto and the aggregate amount of the Term Loan Commitments is $45,000,000. Amounts borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid may not be reborrowed. All Term Loans and all other amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Termination Date.(ii) Revolving Loans . Each Lender severally agrees, subject to the limitations set forth below with respect to the maximum amount of Revolving Loans permitted to be outstanding from time to time, to lend to Borrower from time to time during the period from the Closing Date to but excluding the Termination Date an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be used for the purposes identified in subsection 2.5. The original amount of each Lender’s Revolving Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate original amount of the Revolving Loan Commitments is $20,000,000; provided that the Revolving Loan Commitments of Lenders shall be adjusted to give effect to any assignments of the Revolving Loan Commitments pursuant to subsection 10.1B; and provided , further that the amount of the Revolving Loan Commitments shall be reduced from time to time by the amount of any reductions thereto made pursuant to subsection 2.4B(ii) or 2.4B(iii). Each Lender’s Revolving Loan Commitment shall expire on the Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Loan Commitments shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Termination Date.Anything contained in this Agreement to the contrary notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect.
B. Borrowing Mechanics . The Term Loans shall initially be Base Rate Loans. Revolving Loans (other than Revolving Loans made pursuant to subsection 3.1 for the purpose of reimbursing any L/C Issuer for the amount of a drawing under a Letter of Credit issued by it) made on any Funding Date shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Whenever Borrower desires that Lenders make Revolving Loans to Borrower it shall deliver to Administrative Agent a Notice of Borrowing no later than 11:00 A.M. (New York, New York time) at least three Business Days in advance of the proposed Funding Date (in the case of a LIBOR Loan) or at least one Business Day in advance of the proposed Funding Date (in the case of a Base Rate Loan). The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the amount of Revolving Loans requested, (iii) in the case of Revolving Loans not made on the Closing Date, whether such Loans shall be Base Rate Loans or LIBOR Loans, and (iv) in the case of any Loans requested to be made as LIBOR Loans, the initial Interest Period requested therefor. Term Loans and Revolving Loans may be continued as or converted into Base Rate Loans and LIBOR Loans in the manner provided in subsection 2.2D. In lieu of delivering the above-described Notice of Borrowing, Borrower may give Administrative Agent telephonic notice by the required time of any proposed borrowing under this subsection 2.1B; provided that such notice shall be promptly
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confirmed in writing by delivery of a Notice of Borrowing to Administrative Agent on or before the applicable Funding Date.Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of Borrower or for otherwise acting in good faith under this subsection 2.1B, and upon funding of Loans by Lenders in accordance with this Agreement pursuant to any such telephonic notice Borrower shall have effected Loans hereunder.
Borrower shall notify Administrative Agent prior to the funding of any Loans in the event that any of the matters to which Borrower is required to certify in the applicable Notice of Borrowing is no longer true and correct as of the applicable Funding Date, and the acceptance by Borrower of the proceeds of any Loans shall constitute a re-certification by Borrower, as of the applicable Funding Date, as to matters to which Borrower is required to certify in the applicable Notice of Borrowing.
C. Disbursement of Funds . All Term Loans and Revolving Loans under this Agreement shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender to make the particular Type of Loan requested be increased or decreased as a result of a default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder. Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent shall notify each Lender of the proposed borrowing (which shall be given no later than one hour after receipt thereof by the Administrative Agent). Each Lender shall make the amount of its Loan available to Administrative Agent not later than 1:00 P.M. (New York, New York time) on the applicable Funding Date in same day funds, at the Funding and Payment Office for such Loans. Except as provided in subsection 3.1 with respect to Revolving Loans used to reimburse any L/C Issuer for the amount of a drawing under a Letter of Credit issued by it, upon satisfaction or waiver of the conditions precedent specified in subsections 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of such Loans available to Borrower on the applicable Funding Date by causing an amount of same day funds equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited to the account of Borrower at the Funding and Payment Office for such Loans; provided, that if such conditions precedent are not satisfied or waived on the Funding Date, the Administrative Agent shall return such proceeds to the applicable Lender.Unless Administrative Agent shall have been notified by any Lender prior to the Funding Date for any Loans that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Funding Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Funding Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Funding Date. If such corresponding amount is not in fact made available to Administrative
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Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Funding Date until the date such amount is paid to Administrative Agent at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrower, and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon for each day from such Funding Date until the date such amount is paid to Administrative Agent, at the rate payable under this Agreement for Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.
D. Optional Notes . Upon the request of any Lender made through the Administrative Agent at any time, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to subsection 10.1), promptly after Borrower’s receipt of such notice, a Note or Notes to evidence such Lender’s Term Loans or Revolving Loans, as the case may be, substantially in the form of Exhibit I-1 and Exhibit I-2 annexed hereto, respectively, with appropriate insertions.2.2 Interest on the Loans.
A. Rate of Interest . Subject to the provisions of subsections 2.6 and 2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid principal amount thereof from the date made to maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate or LIBOR. The applicable basis for determining the rate of interest with respect to any Term Loan or any Revolving Loan shall be selected by Borrower initially at the time a Notice of Borrowing is given with respect to such Loan pursuant to subsection 2.1B and the applicable rate for the Term Loans shall initially be determined by reference to the Base Rate, and the basis for determining the interest rate with respect to any Term Loan or any Revolving Loan may be changed from time to time pursuant to subsection 2.2D. Subject to the last proviso to the first paragraph of subsection 2.2D, if on any day a Term Loan or Revolving Loan is outstanding with respect to which notice has not been delivered to Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day that Loan shall bear interest determined by reference to the Base Rate.(i) Subject to the provisions of subsections 2.2E and 2.7, the Term Loans and the Revolving Loans shall bear interest through maturity as follows:(a) if a Base Rate Loan, then at the sum of the Base Rate plus 9.50%; or(b) if a LIBOR Loan, then at the sum of LIBOR plus 11.0%.
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(ii) Upon the request of the Requisite Lenders, while any Event of Default exists, Borrower shall pay interest on the amount of all outstanding Obligations hereunder at a rate equal to the Base Rate plus 9.50% plus 2.0% (the “Default Rate”).B. Interest Periods . In connection with each LIBOR Loan, Borrower may, pursuant to the applicable Notice of Borrowing or Notice of Conversion/Continuation, as the case may be, select an interest period (each an “Interest Period”) to be applicable to such Loan, which Interest Period shall be, at Borrower’s option, either a one, two, or three month period; provided that:(i) the initial Interest Period for any LIBOR Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a LIBOR Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Loan converted to a LIBOR Loan;(ii) in the case of immediately successive Interest Periods applicable to a LIBOR Loan continued as such pursuant to a Notice of Conversion/Continuation, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires;(iii) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that, if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;(iv) 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, subject to clauses (v) and (vi) of this subsection 2.2B, end on the last Business Day of a calendar month;(v) no Interest Period with respect to any portion of the Loans shall extend beyond the Maturity Date;(vi) there shall be no more than 10 Interest Periods outstanding at any time; and(vii) in the event Borrower fails to specify an Interest Period for any LIBOR Loan in the applicable Notice of Borrowing or Notice of Conversion/Continuation, Borrower shall be deemed to have selected an Interest Period of one month.C. Interest Payments . Subject to the provisions of subsection 2.2E and 2.4C, interest on each Loan shall be payable in arrears on and to each Interest Payment Date applicable to that Loan, upon any prepayment of that Loan (to the extent accrued on the amount being prepaid) and at maturity (including final maturity).D. Conversion or Continuation . Subject to the provisions of subsection 2.6, (i) Borrower shall have the option to convert at any time all or any part of its outstanding Term Loans or Revolving Loans equal to $1,000,000 and integral multiples of $100,000 in excess of
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that amount from Loans bearing interest at a rate determined by reference to one basis to Loans bearing interest at a rate determined by reference to an alternative basis and (ii) upon the expiration of any Interest Period applicable to a LIBOR Loan, Borrower shall have the option to continue as a LIBOR Loan all or any portion of such Loan equal to $1,000,000 and integral multiples of $100,000 in excess of that amount; provided , however , that if, upon the expiration of any Interest Period applicable to any LIBOR Loan, Borrower shall have failed to give a Notice of Conversion/Continuation with respect to such LIBOR Loan in accordance with this subsection 2.2D, Borrower shall be deemed to have given a timely Notice of Conversion/Continuation electing to continue such LIBOR Loan as a LIBOR Loan with an Interest Period of one month.Borrower shall deliver a Notice of Conversion/Continuation to Administrative Agent no later than 11:00 A.M. (New York, New York time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Loan). A Notice of Conversion/Continuation shall specify (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount and Type of the Loan to be converted/continued, (iii) the nature of the proposed conversion/continuation, (iv) in the case of a conversion to, or a continuation of, a LIBOR Loan, the requested Interest Period, and (v) in the case of a conversion to, or a continuation of, a LIBOR Loan, that no Potential Event of Default or Event of Default has occurred and is continuing. In lieu of delivering the above-described Notice of Conversion/Continuation, Borrower may give Administrative Agent telephonic notice by the required time of any proposed conversion/continuation under this subsection 2.2D; provided that such notice shall be promptly confirmed in writing by delivery of a Notice of Conversion/Continuation to Administrative Agent on or before the proposed conversion/continuation date. Upon receipt of written or telephonic notice of any proposed conversion/continuation under this subsection 2.2D, Administrative Agent shall promptly transmit such notice by telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to act on behalf of Borrower or for otherwise acting in good faith under this subsection 2.2D, and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans in accordance with this Agreement pursuant to any such telephonic notice Borrower shall have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6F, a Notice of Conversion/Continuation for conversion to, or continuation of, a LIBOR Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in accordance therewith.
E. Post-Maturity Interest . Any principal payments on the Loans not paid when due and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other Obligations owed hereunder not paid when due, in each case whether at stated maturity, by
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notice of prepayment, by acceleration or otherwise, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at the Default Rate. Payment or acceptance of the increased rates of interest provided for in this subsection 2.2E is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.F. Computation of Interest . Interest on the Loans shall be computed (i) in the case of Base Rate Loans bearing interest at a rate determined by reference to the Prime Rate, on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of LIBOR Loans and Base Rate Loans bearing interest at a rate determined by reference to the Federal Funds Effective Rate, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Loan, the date of conversion of such Base Rate Loan to such LIBOR Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.2.3 Fees.
A. Unused Facility Fees . Borrower agrees to pay to Administrative Agent, for distribution to each Lender in proportion to that Lender’s Pro Rata Share, unused facility fees for the period from and including the Closing Date to and excluding the Maturity Date equal to the average of the daily excess of the Revolving Loan Commitments over the aggregate principal amount of outstanding Revolving Loans (but not any outstanding Letter of Credit Usage) multiplied by 2.00%, such unused facility fees to be calculated on the basis of a 365-day or 366-day year, as the case may be, and the actual number of days elapsed and to be payable monthly in arrears on the first Business Day of each calendar month for the preceding calendar month, and on the Maturity Date.B. Other Fees . Borrower agrees to pay to Administrative Agent L/C Issuer and Lenders, as applicable, such other fees in the amounts and at the times separately agreed upon between Borrower and Administrative Agent, and Lenders, as the case may be.
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2.4 Repayments, Prepayments and Reductions in Revolving Loan’ Commitments; General Provisions Regarding Payments; Application of Proceeds of Collateral and Payments Under the Guaranties.
A. Maturity of Loans . Borrower shall repay to the Lenders on the Maturity Date (or, if earlier, the Termination Date) the aggregate principal amount of the Loans outstanding on such date.B. Prepayments and Reductions in Revolving Loan Commitments .(i) Voluntary Prepayments . Borrower may, upon not less than one Business Day’s prior written or telephonic notice, in the case of Base Rate Loans, and three Business Days’ prior written or telephonic notice, in the case of LIBOR Loans, in each case given to Administrative Agent by 11:00 a.m. (New York, New York time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time prepay any of Borrower’s Term Loans or Revolving Loans on any Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount together with any premium payable pursuant to subsection 2.4C(ii); provided , that Borrower may not prepay any Term Loans prior to September 30, 2005. Notice of prepayment having been given as aforesaid, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in subsection 2.4B(iv).(ii) Voluntary Reductions of Revolving Loan Commitments . Borrower may, at any time after September 30, 2005, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time terminate in whole or permanently reduce in part, together with any premium payable pursuant to subsection 2.4C(ii), the Revolving Loan Commitments in an amount up to the amount by which the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments at the time of such proposed termination or reduction; provided that any such partial reduction of the Revolving Loan Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Loan Commitments shall be effective on the date specified in Borrower’s notice and shall reduce the Revolving Loan Commitment of each Lender proportionately to its Pro Rata Share.(iii) Mandatory Prepayments . The Loans shall be prepaid in the amounts and under the circumstances set forth below, all such prepayments to be applied as set forth below or as more specifically provided in subsection 2.4B(iv):
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(a) Prepayments From Net Asset Sale Proceeds . Immediately (or, in the case of Insurance Net Proceeds), five (5) Business Days) after any Loan Party’s receipt of any Net Asset Sale Proceeds, any Loan Party receiving such Net Asset Sale Proceeds agrees to make or cause to be made a mandatory prepayment of its Loans in an amount equal to one hundred percent (100%) of such Net Asset Sale Proceeds together with any premium payable pursuant to subsection 2.4C(ii); provided , that (1) with respect to no more than $2,500,000 in the aggregate of Insurance Net Proceeds in any fiscal year of Borrower, such Insurance Net Proceeds shall not be required to be so applied on such date to the extent permitted to be applied towards Replacement Proceeds pursuant to subsection 6.4D(A), and (2) with respect to the first $15,000,000 of Net Asset Sale Proceeds, a mandatory prepayment shall only be required in an amount equal to fifty percent (50%) of such Net Asset Sale Proceeds together with any premium payable pursuant to subsection 2.4C(ii) so long (A) no Potential Event of Default or Event of Default then exists, (B) Borrower delivers a certificate to the Administrative Agent on or prior to such date stating that the remaining fifty percent (50%) of such Net Asset Sale Proceeds will be reinvested in Additional Assets, and (C) such Net Asset Sale Proceeds are so expended within 150 days of the receipt thereof;(b) Prepayments from Consolidated Excess Cash Flow . In the event that as of the last day of any Fiscal Year there shall be Consolidated Excess Cash Flow for such Fiscal Year, Borrower shall, no later than the date on which Borrower is required to deliver audited financial statements with respect to such Fiscal Year pursuant to subsection 6.1(ii), prepay its outstanding Term Loans (or, if the Term Loans have been paid in full, the Revolving Loans (to be accompanied by a reduction in Revolving Loan Commitment) in an aggregate amount equal to 75% of such Consolidated Excess Cash Flow together with any premium payable pursuant to subsection 2.4C(ii).(c) Prepayments Due to Reductions or Restrictions of Revolving Loan Commitments . Borrower shall from time to time prepay the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Loan Commitments shall not at any time exceed the Revolving Loan Commitments then in effect.(d) Application of Net Cash Proceeds of Issuance of Equity Securities or Indebtedness . Immediately after any Loan Party’s receipt of any Net Cash Proceeds of Issuance of Equity Securities or Indebtedness, Borrower shall make or cause to be made a mandatory prepayment of the Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds of Issuance of Equity Securities or Indebtedness together with any premium payable pursuant to subsection 2.4C(ii); provided , that this subsection 2.4B(iii)(d) shall not apply to Capital Stock issued, the proceeds of which are used for permitted Capital Expenditures, Acquisitions or Investments so long as (A) no Potential Event of Default or Event of Default then exists, (B) Borrower delivers a certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds
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of Issuance of Equity Securities or Indebtedness will be so used, and (C) such Net Cash Proceeds of Equity Securities or Indebtedness are so expended within 150 days of the receipt thereof;provided , that so long as no Potential Event of Default or Event of Default has occurred and is continuing, Borrower may in its sole discretion elect, pursuant to a written notice given by Borrower to Administrative Agent describing such election, to postpone any mandatory prepayments required pursuant to clause (a) or (d) above (any such prepayment, until the time actually made, being “Postponed Prepayments”) until such time as the aggregate amount of Postponed Prepayments equals $500,000 or a Potential Event of Default or Event of Default occurs.
(iv) Application of Prepayments .(a) Application of Voluntary Prepayments by Type of Loans and Order of Maturity . Any voluntary prepayments pursuant to subsection 2.4B(i) shall be applied as specified by Borrower in the applicable notice of prepayment; provided that in the event Borrower fails to specify the Loans of Borrower to which any such prepayment shall be applied, such prepayment shall be applied first to repay outstanding Term Loans to the full extent thereof, and second to repay outstanding Revolving Loans to the full extent thereof.(b) Application of Mandatory Prepayments of Loans . Any mandatory prepayments of Borrower’s Loans pursuant to subsection 2.4B(iii) shall be applied to prepay the Loans as follows: first , pro rata , to reduction of the outstanding principal amount of the Term Loans, second , if the Term Loans have been repaid in full, pro rata , to the reduction of the principal amount of the Revolving Loans (with a concomitant reduction in the Revolving Loan Commitments), third , to all other non-contingent Obligations, and fourth , to the extent any such Obligations are contingent, deposited in the applicable Cash Collateral Account as Cash Collateral in respect of such contingent Obligations.(c) Application of Prepayments to Base Rate Loans and LIBOR Loans; Option to Defer Certain Mandatory Prepayments of LIBOR Loans . Considering Term Loans and Revolving Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to LIBOR Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to subsection 2.6D; provided that, anything contained in this Agreement to the contrary notwithstanding, in the event that (1) the application of any mandatory prepayment pursuant to subsection 2.4B(iii) in accordance with the foregoing provisions of this subsection 2.4B(iv) would result in the prepayment of all or any portion of a LIBOR Loan prior to the end of the Interest Period applicable thereto, and (2) no Potential Event of Default or Event of Default shall have occurred and be continuing, Borrower shall have the option, by giving written notice (or telephonic notice promptly confirmed in writing) to Administrative Agent of its election to do so on or before the first Business Day prior to the date on which such prepayment would otherwise be required to be made, to defer the making of
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such prepayment until the last day of such Interest Period or such earlier date as Borrower may specify in such notice.C. General Provisions Regarding Payments .(i) Manner and Time of Payment . All payments by Borrower of principal, interest, fees and other Obligations hereunder and under the Notes shall be made in same day funds, in each case without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 P.M. (New York, New York time) on the date due at the applicable Funding and Payment Office for the account of Lenders; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.(ii) Application of Payments to Principal and Interest; Prepayment Premium . All payments in respect of the principal amount of any Loan shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest before application to principal. If any principal amount of the Term Loans is paid prior to the second anniversary of the Closing Date, then Borrower shall pay the Administrative Agent, for the account of the Lenders, an amount equal to (a) if such Loans are paid prior to the first anniversary of the Closing Date, 103% of such principal amount paid or (b) if such Loans are paid on or after the first anniversary of the Closing Date and prior to the second anniversary of the Closing Date, 101.5% of such principal amount paid. If any portion of the Revolving Loan Commitment is reduced prior to the second anniversary of the Closing Date, the Borrower shall pay the Administrative Agent, for the account of the Lenders, a prepayment fee in an amount equal to the amount by which the Revolving Loan Commitment was reduced times a percentage equal to 3.00% times a fraction, the numerator of which is the number of months remaining prior to the second anniversary of the Closing Date, the denominator of which is 24 (provided, that the number of months remaining shall be determined by counting the month in which such reduction was made).(iii) Apportionment of Payments . Aggregate principal and interest payments in respect of Term Loans and Revolving Loans shall be apportioned among all outstanding Loans to which such payments relate, in each case proportionately to Lenders’ respective Pro Rata Shares. Administrative Agent shall promptly distribute to each Lender, at its applicable Lending Office or at such other address as such Lender may request, its Pro Rata Share of all such payments received by Administrative Agent and the unused facility fees of such Lender when received by Administrative Agent pursuant to subsection 2.3. Notwithstanding the foregoing provisions of this subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C, any Notice of Borrowing or Notice of Conversion/Continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
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(iv) Payments on Business Days . Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the unused facility fees hereunder, as the case may be.D. Application of Proceeds of Collateral and Payments Under the Guaranties . After the occurrence and during the continuance of an Event of Default, all proceeds received by Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral under any Collateral Document or under the Guaranties (x) so long as the Obligations have not been accelerated hereunder, may, in the discretion of Administrative Agent, be held by Administrative Agent as Collateral for, and/or (then or at any time thereafter) applied in full or in part by Administrative Agent against, the Obligations and (y) if the Obligations have been accelerated hereunder, the Administrative Agent shall apply such proceeds against the Obligations, in each case in the following order of priority:(a) first , to pay Obligations in respect of any expense reimbursements or indemnities then due to the Administrative Agent;(b) second , to pay Obligations in respect of any fees then due to the Administrative Agent, Lenders or L/C Issuer;(c) third , to pay Letter of Credit Fees, interest due in respect of the Loans, L/C Borrowings and other Obligations, ratably among Lenders and L/C Issuer in proportion to the respective amounts described in this clause third held by them;(d) fourth , to pay Obligations in respect of any expense reimbursements or indemnities then due to the Lenders and L/C Issuer;(e) fifth , to pay or prepay principal outstanding on the Loans and L/C Borrowings ratably among Lenders and L/C Issuer in proportion to the respective amounts described in this clause fourth held by them;(f) sixth , to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;(g) seventh , to the ratable payment of all other Obligations; and(h) eighth , to the extent of any excess such proceeds, to the payment to or upon the order of such Loan Party or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.Subject to subsection 3.1C, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
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Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
2.5 Use of Proceeds . The proceeds of the Loan shall be applied by Borrower to pay the Indebtedness and all obligations under the Existing Credit Agreement, pay transaction fees and expenses in connection therewith and herewith, provide for working capital and funding for general corporate purposes.
2.6 Special Provisions Governing LIBOR Loans.
Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to LIBOR Loans as to the matters covered:
A. Determination of Applicable Interest Rate . As soon as practicable after 11:00 A.M. (New York, New York time), on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent clearly demonstrable error, be final, conclusive and binding upon all parties) the interest rate that shall apply to LIBOR Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.B. Inability to Determine Applicable Interest Rate . In the event that the Requisite Lenders or Administrative Agent shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Loans, that by reason of circumstances affecting the London interbank market for Dollars (a) deposits are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such LIBOR Loan, (b) adequate and reasonable means do not exist for determining LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan, or (c) LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such LIBOR Loan, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist (which notice Administrative Agent shall give at such time as such circumstances no longer exist), and (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.C. Illegality or Impracticability of LIBOR Loans . In the event that on any date any Lender shall have reasonably determined (which determination shall be made only after consultation with Borrower and Administrative Agent, it being understood that any such determination so made shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) that the making, maintaining or continuation of its LIBOR Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
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governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable as a result of contingencies occurring after the date of this Agreement which materially and adversely affect the London interbank market then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (b) to the extent such determination by the Affected Lender relates to a LIBOR Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender’s obligation to maintain its outstanding LIBOR Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (d) any Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBOR Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, Borrower shall have the option, subject to the provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of Conversion/ Continuation as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this subsection 2.6C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the terms of this Agreement.D. Compensation for Losses . Upon demand of any Lender (which demand shall set forth in reasonable detail the basis for requesting such amounts) (with a copy to the Administrative Agent) from time to time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:(i) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); and(ii) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower;including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
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For purposes of calculating amounts payable by the Borrower to the Lenders under this subsection 2.6D, each Lender shall be deemed to have funded each LIBOR Loan made by it at the LIBOR Base Rate used in determining LIBOR for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such LIBOR Loan was in fact so funded.
E. Booking of LIBOR Loans . Any Lender may make, carry or transfer LIBOR Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender.F. LIBOR Loans After Default . If, after the occurrence of and during the continuation of a Potential Event of Default or an Event of Default, Administrative Agent or Requisite Lenders have determined in its or their sole discretion not to permit the making or continuation of any Loans as, or the conversion of any Loans to, LIBOR Loans and Administrative Agent has so notified Borrower in writing (i) Borrower may not elect to have any Loans be made as or converted to LIBOR Loans or elect to have any outstanding LIBOR Loans continued as such after the expiration of the Interest Periods then in effect for such L |
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