<PAGE>
Exhibit 10.7
EXECUTION COPY
================================================================================
REVOLVING LOAN CREDIT AGREEMENT
dated as of November 30, 2005
among
NETWORK COMMUNICATIONS, INC.,
GALLARUS MEDIA HOLDINGS, INC.,
THE LENDERS PARTY HERETO
and
CREDIT SUISSE,
as Administrative Agent and Collateral Agent
----------
CREDIT SUISSE,
as Sole Bookrunner and Sole Lead Arranger,
TD SECURITIES (USA) LLC,
as Co-Arranger,
TD SECURITIES
(USA) LLC,
as Syndication Agent
and
WELLS FARGO FOOTHILL, INC.,
as Documentation Agent
================================================================================
[CS&M Ref No. 5865-363]
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ARTICLE I
Definitions
SECTION 1.01. Defined
Terms.............................................. 1
SECTION 1.02. Terms
Generally............................................ 24
SECTION 1.03. Pro Forma
Calculations..................................... 25
SECTION 1.04. Classification of Loans and
Borrowings..................... 25
ARTICLE II
The Credits
SECTION 2.01.
Commitments................................................
25
SECTION 2.02.
Loans......................................................
26
SECTION 2.03. Borrowing
Procedure........................................ 28
SECTION 2.04. Evidence of Debt; Repayment of
Loans....................... 28
SECTION 2.05.
Fees.......................................................
29
SECTION 2.06. Interest on
Loans.......................................... 30
SECTION 2.07. Default
Interest........................................... 30
SECTION 2.08. Alternate Rate of
Interest................................. 30
SECTION 2.09. Termination and Reduction of
Commitments................... 31
SECTION 2.10. Conversion and Continuation of
Borrowings.................. 31
SECTION 2.11. Optional
Prepayment........................................ 32
SECTION 2.12. Mandatory
Prepayments...................................... 33
SECTION 2.13. Reserve Requirements; Change in
Circumstances.............. 33
SECTION 2.14. Change in
Legality......................................... 34
SECTION 2.15.
Indemnity..................................................
35
SECTION 2.16. Pro Rata
Treatment......................................... 36
SECTION 2.17. Sharing of
Setoffs......................................... 36
SECTION 2.18.
Payments...................................................
37
SECTION 2.19.
Taxes......................................................
37
SECTION 2.20. Assignment of Commitments Under Certain
Circumstances; Duty
to Mitigate................................................
39
SECTION 2.21. Swingline
Loans............................................ 40
SECTION 2.22. Letters of
Credit.......................................... 42
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers....................................... 46
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SECTION 3.02.
Authorization..............................................
46
SECTION 3.03.
Enforceability.............................................
46
SECTION 3.04. Governmental
Approvals..................................... 46
SECTION 3.05. Financial
Statements....................................... 47
SECTION 3.06. No Material Adverse
Change................................. 47
SECTION 3.07. Title to Properties; Possession Under
Leases............... 48
SECTION 3.08.
Subsidiaries...............................................
48
SECTION 3.09. Litigation; Compliance with
Laws........................... 48
SECTION 3.10.
Agreements.................................................
48
SECTION 3.11. Federal Reserve
Regulations................................ 49
SECTION 3.12. Investment Company Act; Public Utility Holding
Company
Act........................................................
49
SECTION 3.13. Use of
Proceeds............................................ 49
SECTION 3.14. Tax
Returns................................................
49
SECTION 3.15. No Material
Misstatements.................................. 49
SECTION 3.16. Employee Benefit
Plans..................................... 50
SECTION 3.17. Environmental
Matters...................................... 50
SECTION 3.18.
Insurance..................................................
51
SECTION 3.19. Security
Documents......................................... 51
SECTION 3.20. Location of Real Property and Leased
Premises.............. 52
SECTION 3.21. Labor
Matters.............................................. 52
SECTION 3.22.
Solvency...................................................
52
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit
Events.......................................... 53
SECTION 4.02. Effectiveness and First Credit
Event....................... 53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Compliance with Laws; Businesses and
Properties.................................................
56
SECTION 5.02.
Insurance..................................................
57
SECTION 5.03. Obligations and
Taxes...................................... 58
SECTION 5.04. Financial Statements, Reports,
etc......................... 58
SECTION 5.05. Litigation and Other
Notices............................... 60
SECTION 5.06. Information Regarding
Collateral........................... 60
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections;
Maintenance of
Ratings..................................... 61
SECTION 5.08. Use of
Proceeds............................................ 61
SECTION 5.09. Employee
Benefits.......................................... 61
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SECTION 5.10. Compliance with Environmental
Laws......................... 61
SECTION 5.11. Preparation of Environmental
Reports....................... 62
SECTION 5.12. Further
Assurances......................................... 62
SECTION 5.13. Maintenance of Corporate
Separateness...................... 63
SECTION 5.14. Designation of
Subsidiaries................................ 63
ARTICLE VI
Negative Covenants
SECTION 6.01.
Indebtedness...............................................
64
SECTION 6.02.
Liens......................................................
66
SECTION 6.03. Sale and Lease-Back
Transactions........................... 68
SECTION 6.04. Investments, Loans and
Advances............................ 68
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.. 70
SECTION 6.06. Restricted Payments; Restrictive
Agreements................ 71
SECTION 6.07. Transactions with
Affiliates............................... 73
SECTION 6.08. Business of Holdings, Borrower and
Subsidiaries............ 73
SECTION 6.09. Other Indebtedness and
Agreements.......................... 73
SECTION 6.10. Capital
Expenditures....................................... 74
SECTION 6.11. Interest Coverage
Ratio.................................... 75
SECTION 6.12. Maximum Senior Secured Leverage
Ratio...................... 75
SECTION 6.13. Fiscal
Year................................................ 75
SECTION 6.14. Certain Equity
Securities.................................. 75
SECTION 6.15. Unrestricted
Subsidiaries.................................. 75
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices....................................................
82
SECTION 9.02. Survival of
Agreement...................................... 83
SECTION 9.03. Binding
Effect............................................. 84
SECTION 9.04. Successors and
Assigns..................................... 84
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SECTION 9.05. Expenses;
Indemnity........................................ 88
SECTION 9.06. Right of
Setoff............................................ 90
SECTION 9.07. Applicable
Law............................................. 90
SECTION 9.08. Waivers;
Amendment......................................... 90
SECTION 9.09. Interest Rate
Limitation................................... 91
SECTION 9.10. Entire
Agreement........................................... 91
SECTION 9.11. WAIVER OF JURY
TRIAL....................................... 92
SECTION 9.12.
Severability...............................................
92
SECTION 9.13.
Counterparts...............................................
92
SECTION 9.14.
Headings...................................................
92
SECTION 9.15. Jurisdiction; Consent to Service of
Process................ 92
SECTION 9.16.
Confidentiality............................................
93
SECTION 9.17. USA PATRIOT Act
Notice..................................... 94
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iv
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SCHEDULES
Schedule 1.01(a) -- Subsidiary Guarantors
Schedule 1.01(b) -- Unrestricted Subsidiaries
Schedule 2.01 -- Lenders and
Commitments
Schedule 3.08 -- Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.17 -- Environmental
Matters
Schedule 3.18 -- Insurance
Schedule 3.19(a) -- UCC Filing Offices
Schedule 3.20(b) -- Leased Real Property
Schedule 4.02(a) -- Local Counsel
Schedule 6.01 -- Existing
Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.07 -- Existing
Transactions with Affiliates
EXHIBITS
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Guarantee, Collateral and Intercreditor
Agreement
Exhibit E -- Form of Revolving Promissory Note
Exhibit F -- Form of Earn-Out Subordination Agreement
Exhibit G -- Form of Permitted Holdings Subordinated Debt
Subordination
Agreement
v
<PAGE>
REVOLVING LOAN CREDIT AGREEMENT (this "AGREEMENT") dated as
of November 30, 2005, among NETWORK COMMUNICATIONS, INC., a
Georgia corporation (the "BORROWER"), GALLARUS MEDIA HOLDINGS,
INC., a Delaware corporation ("HOLDINGS"), the Lenders (as
defined in Article I), and CREDIT SUISSE, as administrative
agent
(in such capacity, the "ADMINISTRATIVE AGENT") and as
collateral
agent (in such capacity, the "COLLATERAL AGENT") for the
Lenders.
The
Borrower has requested the Lenders to extend credit in the form
of
Revolving Loans at any time and from time to time prior to the
Maturity Date, in
an aggregate principal amount at any time outstanding not in excess
of
$35,000,000. The Borrower has requested the Swingline Lender to
extend credit,
at any time and from time to time prior to the Maturity Date, in
the form of
Swingline Loans, in an aggregate principal amount at any time
outstanding not in
excess of $5,000,000. The Borrower has requested the Issuing Bank
to issue
Letters of Credit, in an aggregate face amount at any time
outstanding not in
excess of $5,000,000, to support payment obligations incurred in
the ordinary
course of business by the Borrower and its Subsidiaries. The
proceeds of the
Revolving Loans and the Swingline Loans are to be used solely for
general
corporate purposes not expressly prohibited herein, including to
finance
Permitted Acquisitions and Capital Expenditures.
The
Lenders are willing to extend such credit to the Borrower, and
the
Issuing Bank is willing to issue Letters of Credit for the account
of the
Borrower, in each case on the terms and subject to the conditions
set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such Borrowing, are bearing
interest at a
rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurodollar
Borrowing
for any Interest Period, an interest rate per annum equal to the
product of (a)
the LIBO Rate in effect for such Interest Period and (b) Statutory
Reserves.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the
preamble to this Agreement.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in
Section 2.05(b).
<PAGE>
2
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire
substantially in the form of Exhibit A, or such other similar form
as may be
supplied from time to time by the Administrative Agent.
"AFFILIATE" shall mean, when used with respect to a specified
person,
another person that directly, or indirectly through one or more
intermediaries,
Controls or is Controlled by or is under common Control with the
person
specified; provided, however, that, for purposes of Section 6.07,
the term
"Affiliate" shall also include any person that directly or
indirectly owns 5% or
more of any class of Equity Interests of the person specified or
that is an
officer or director of the person specified.
"AGGREGATE CREDIT EXPOSURE" shall mean the aggregate amount of the
Lenders'
Credit Exposures.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble to
this Agreement.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If the
Administrative
Agent shall have determined (which determination shall be
conclusive absent
manifest error) that it is unable to ascertain the Federal Funds
Effective Rate
for any reason, including the inability or failure of the
Administrative Agent
to obtain sufficient quotations in accordance with the terms of the
definition
thereof, the Alternate Base Rate shall be determined without regard
to clause
(b) of the preceding sentence until the circumstances giving rise
to such
inability no longer exist. Any change in the Alternate Base Rate
due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the
effective date of such change in the Prime Rate or the Federal
Funds Effective
Rate, as the case may be.
"ANNUAL REPORTING PERIOD" shall mean (a) prior to the delivery of a
Notice
of Change of Reporting Period, a fiscal period consisting of four
consecutive
Quarterly Reporting Periods ending on the last Sunday of March of
each calendar
year, and (b) after delivery of a Notice of Change of Reporting
Period, a fiscal
period consisting of twelve consecutive calendar months ending on
the date
specified in the Notice of Change of Reporting Period.
"APPLICABLE PERCENTAGE" shall mean, for any day, with respect to
any
Eurodollar Revolving Loan or ABR Revolving Loan, as the case may
be, the
applicable percentage set forth below under the caption "Eurodollar
Spread" or
"ABR Spread", as the case may be, based upon the Senior Secured
Leverage Ratio
as of the relevant date of determination:
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3
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Eurodollar ABR
Senior Secured Leverage Ratio
Spread Spread
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Category 1
Greater than or equal to 1.75 to 1.00
2.50% 1.50%
Category 2
Greater than or equal to 1.25 to 1.00, but less than 1.75 to 1.00
2.25%
1.25%
Category 3
Greater than or equal to 0.75 to 1.00, but less than 1.25 to 1.00
2.00%
1.00%
Category 4
Less than 0.75 to 1.00
1.75% 0.75%
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Each change in the Applicable Percentage resulting from a change in
the Senior
Secured Leverage Ratio shall be effective with respect to all Loans
and Letters
of Credit outstanding on and after the date of delivery to the
Administrative
Agent of the financial statements and certificates required by
Section 5.04(a)
or (b) and Section 5.04(d), respectively, indicating such change
until the date
immediately preceding the next date of delivery of such financial
statements and
certificates indicating another such change. Notwithstanding the
foregoing,
until the Borrower shall have delivered the financial statements
and
certificates required by Section 5.04(a) or (b) and Section
5.04(d),
respectively, for the Quarterly Reporting Period ending on or about
June 18,
2006, the Senior Secured Leverage Ratio shall be deemed to be in
Category 1 for
purposes of determining the Applicable Percentage. In addition, (a)
at any time
during which the Borrower has failed to deliver the financial
statements and
certificates required by Section 5.04(a) or (b) and Section
5.04(d),
respectively, or (b) at any time after the occurrence and during
the continuance
of an Event of Default, the Senior Secured Leverage Ratio shall be
deemed to be
in Category 1 for purposes of determining the Applicable
Percentage.
"ASSET SALE" shall mean the sale, transfer or other disposition (by
way of
merger, casualty, condemnation or otherwise) by the Borrower or any
of the
Subsidiaries to any person other than the Borrower or any
Subsidiary Guarantor
of (a) any Equity Interests of any of the Subsidiaries (other than
directors'
qualifying shares) or (b) any other assets of the Borrower or any
of the
Subsidiaries (other than (i) inventory, damaged, obsolete or worn
out assets,
scrap and Permitted Investments, in each case disposed of in the
ordinary course
of business, (ii) dispositions between or among Foreign
Subsidiaries, (iii) any
sale, transfer or other disposition or series of related sales,
transfers or
other dispositions having a value not in excess of $350,000 and
(iv) any
licenses granted by the Borrower or any of its Subsidiaries to any
person).
<PAGE>
4
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered
into by a Lender and an assignee, and accepted by the
Administrative Agent, in
the form of Exhibit B or such other similar form as shall be
approved by the
Administrative Agent.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of
the United States of America.
"BORROWER" shall have the meaning assigned to such term in the
preamble to
this Agreement.
"BORROWING" shall mean (a) Revolving Loans of the same Type made,
converted
or continued on the same date and, in the case of Eurodollar Loans,
as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" shall mean a request by the Borrower in
accordance with
the terms of Section 2.03 and substantially in the form of Exhibit
C, or such
other similar form as shall be approved by the Administrative
Agent.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
day on
which banks in New York City are authorized or required by law to
close;
provided, however, that when used in connection with a Eurodollar
Loan, the term
"BUSINESS DAY" shall also exclude any day on which banks are not
open for
dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, (a) the
additions to
property, plant and equipment and other capital expenditures of the
Borrower and
its consolidated Subsidiaries that are (or should be) set forth in
a
consolidated statement of cash flows of the Borrower for such
period prepared in
accordance with GAAP and (b) Capital Lease Obligations or Synthetic
Lease
Obligations incurred by the Borrower and its consolidated
Subsidiaries during
such period, but excluding in each case any such expenditure during
such period
(i) made to restore, replace or rebuild property to the condition
of such
property immediately prior to any damage, loss, destruction or
condemnation of
such property, to the extent such expenditure is made with
insurance proceeds,
condemnation awards or damage recovery proceeds relating to any
such damage,
loss, destruction or condemnation, (ii) constituting reinvestment
of the net
cash proceeds from sales or other disposition of assets permitted
hereby, (iii)
made as the purchase price in respect of any Permitted Acquisition,
(iv) which
is contractually required to be, and is, reimbursed in cash by a
third party or
(v) constituting capitalized interest.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the
obligations of
such person to pay rent or other amounts under any lease of (or
other
arrangement conveying the right to use) real or personal property,
or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such person
under GAAP,
and the amount of such obligations shall be the capitalized amount
thereof
determined in accordance with GAAP.
A
"CHANGE IN CONTROL" shall be deemed to have occurred if (a) prior
to a
Qualified Public Offering, the Permitted Investors shall fail to
own, directly
or indirectly,
<PAGE>
5
beneficially and of record, shares representing at least 51% of
each of the
aggregate ordinary voting power represented by the issued and
outstanding Equity
Interests of Holdings, (b) after a Qualified Public Offering, any
"person" or
"group" (within the meaning of Rule 13d-5 of the Securities
Exchange Act of 1934
as in effect on the date hereof) shall own, directly or indirectly,
beneficially
or of record, shares representing more than 35% of the aggregate
ordinary voting
power represented by the issued and outstanding capital stock of
Holdings, (c) a
majority of the seats (other than vacant seats) on the board of
directors of
Holdings shall at any time be occupied by persons who were neither
(i) nominated
by the board of directors of Holdings or any Permitted Investor nor
(ii)
appointed by directors so nominated, (d) any change in control (or
similar
event, however denominated) with respect to Holdings, the Borrower
or any
Subsidiary shall occur under and as defined in any indenture or
agreement in
respect of Material Indebtedness to which Holdings, the Borrower or
any
Subsidiary is a party, or (e) Holdings shall cease to directly own,
beneficially
and of record, 100% of the issued and outstanding Equity Interests
of the
Borrower.
"CHANGE IN LAW" shall mean (a) the adoption of any law, rule or
regulation
after the date of this Agreement, (b) any change in any law, rule
or regulation
or in the interpretation or application thereof by any Governmental
Authority
after the date of this Agreement or (c) compliance by any Lender or
the Issuing
Bank (or, for purposes of Section 2.13, by any lending office of
such Lender or
by such Lender's or Issuing Bank's holding company, if any) with
any request,
guideline or directive (whether or not having the force of law) of
any
Governmental Authority made or issued after the date of this
Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or
Swingline Loans and, when used in reference to any Commitment,
refers to whether
such Commitment is a Revolving Credit Commitment or Swingline
Commitment.
"CLOSING DATE" shall mean November 30, 2005.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time
to time.
"COLLATERAL" shall mean all the "Collateral" as defined in any
Security
Document and shall also include the Mortgaged Properties.
"COLLATERAL AGENT" shall have the meaning assigned to such term in
the
preamble to this Agreement.
"COMMITMENT" shall mean, with respect to any Lender, such
Lender's
Revolving Credit Commitment and Swingline Commitment.
"COMMITMENT FEE" shall have the meaning assigned to such term in
Section
2.05(a).
<PAGE>
6
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the
Confidential
Information Memorandum of the Borrower dated October 2005.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income
for such period plus (a) without duplication and to the extent
deducted in
determining such Consolidated Net Income, the sum of (i)
consolidated interest
expense for such period, (ii) consolidated provisions for federal,
state or
other domestic and foreign tax expense including franchise taxes
and any state
single business unitary or similar tax, (iii) all amounts
attributable to
depreciation and amortization for such period, (iv) any non-cash
charges (other
than the write-down of current assets) for such period, (v) fees
and expenses
incurred and paid in cash in connection with the Transactions, (vi)
fees and
expenses incurred and paid in cash in connection with a Permitted
Acquisition
and (vii) management fees paid to the Sponsor to the extent
permitted to be paid
hereunder, and minus (b) without duplication (i) all cash payments
made during
such period on account of reserves, restructuring charges and other
non-cash
charges added to Consolidated Net Income pursuant to clause (a)(iv)
above in a
previous period and (ii) to the extent included in determining such
Consolidated
Net Income, all non-cash items of income for such period, all
determined on a
consolidated basis in accordance with GAAP. For purposes of
determining the
Interest Coverage Ratio and the Senior Secured Leverage Ratio as of
or for the
Quarterly Reporting Periods ending on or about December 4, 2005,
March 26, 2006
and June 18, 2006, Consolidated EBITDA will be deemed to be equal
to (i) for the
Quarterly Reporting Period ended March 27, 2005, $8,982,367, (ii)
for the
Quarterly Reporting Period ended June 19, 2005, $11,234,204, and
(iii) for the
Quarterly Reporting Period ended September 11, 2005,
$12,198,204.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the sum
of (a)
all cash interest paid (including imputed interest expense in
respect of Capital
Lease Obligations and Synthetic Lease Obligations) with respect to
Indebtedness
for Borrowed Money of the Borrower and the Subsidiaries for such
period,
determined on a consolidated basis in accordance with GAAP, plus
(b) any
interest accrued during such period in respect of Indebtedness of
the Borrower
or any Subsidiary that is required to be capitalized rather than
included in
consolidated interest expense for such period in accordance with
GAAP. For
purposes of the foregoing, interest expense shall be determined
after giving
effect to any net payments made or received by the Borrower or any
Subsidiary
with respect to interest rate Hedging Agreements. For purposes of
determining
the Interest Coverage Ratio for the period of four consecutive
Quarterly
Reporting Periods ending on or about December 4, 2005, March 26,
2006 and June
18, 2006, Consolidated Interest Expense shall be deemed to be equal
to (a) the
Consolidated Interest Expense (less, to the extent it would
otherwise be
included in such Consolidated Interest Expense, the portion of such
Consolidated
Interest Expense consisting of any prepayment penalty or premium
paid by the
Borrower or any Subsidiary in connection with the prepayment in
full of the
Existing Senior Subordinated Notes on the Closing Date) for the
Quarterly
Reporting Period ending on or about December 4, 2005, multiplied by
4, (b) the
Consolidated Interest Expense for the two consecutive Quarterly
Reporting
Periods ending on or about March 26, 2006, multiplied by 2 and (c)
the
Consolidated Interest Expense for the three consecutive Quarterly
Reporting
Periods ending on or about June 18, 2006, multiplied by 4/3,
respectively.
<PAGE>
7
"CONSOLIDATED LEVERAGE RATIO" shall have the meaning assigned to
such term
in the Term Loan Credit Agreement as in effect on the Closing
Date.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net
income or
loss of the Borrower and the Subsidiaries for such period
determined on a
consolidated basis in accordance with GAAP (adjusted to reflect any
charge, tax
or expense incurred or accrued by Holdings during such period as
though such
charge, tax or expense had been incurred by the Borrower, to the
extent that the
Borrower has made or would be entitled under the Loan Documents to
make any
payment to or for the account of Holdings in respect thereof);
provided that
there shall be excluded (a) the income of any Subsidiary (other
than a Loan
Party) to the extent that the declaration or payment of dividends
or similar
distributions by the Subsidiary of that income is not at the time
permitted by
operation of the terms of its charter or any agreement, instrument,
judgment,
decree, statute, rule or governmental regulation applicable to such
Subsidiary,
(b) except as otherwise provided in Section 1.03, the income or
loss of any
person accrued prior to the date it becomes a Subsidiary or is
merged into or
consolidated with the Borrower or any Subsidiary or the date that
such person's
assets are acquired by the Borrower or any Subsidiary, (c) the
income of any
person in which any other person (other than the Borrower or a
wholly owned
Subsidiary or any director holding qualifying shares in accordance
with
applicable law) has a joint interest, except to the extent of the
amount of
dividends or other distributions actually paid to the Borrower or a
wholly owned
Subsidiary by such person during such period, (d) any gains or
losses
attributable to sales of assets out of the ordinary course of
business, (e) any
extraordinary, unusual or non-recurring gains, losses or charges
and (f) any
noncash purchase accounting adjustments.
"CONTROL" shall mean the possession, directly or indirectly, of the
power
to direct or cause the direction of the management or policies of a
person,
whether through the ownership of voting securities, by contract or
otherwise,
and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative
thereto.
"CREDIT EVENT" shall have the meaning assigned to such term in
Section
4.01.
"CREDIT EXPOSURE" shall mean, with respect to any Lender at any
time, the
aggregate principal amount at such time of all outstanding
Revolving Loans of
such Lender, plus the aggregate amount at such time of such
Lender's L/C
Exposure, plus the aggregate amount at such time of such Lender's
Swingline
Exposure.
"CREDIT FACILITIES" shall mean the revolving credit, swingline and
letter
of credit facilities provided for by this Agreement.
"CURE AMOUNT" shall have the meaning assigned to such term in
Article VII.
"CURE RIGHT" shall have the meaning assigned to such term in
Article VII.
"DEFAULT" shall mean any event or condition which upon notice,
lapse of
time or both would constitute an Event of Default.
<PAGE>
8
"DEFAULTING LENDER" shall mean any Revolving Credit Lender that has
(a)
defaulted in its obligation to make a Revolving Loan or to fund
its
participation in a Letter of Credit or Swingline Loan required to
be made or
funded by it hereunder, (b) notified the Administrative Agent or a
Loan Party in
writing that it does not intend to satisfy any such obligation or
(c) become
insolvent or the assets or management of which has been taken over
by any
Governmental Authority.
"DISQUALIFIED STOCK" shall mean any Equity Interest that, by its
terms (or
by the terms of any security into which it is convertible or for
which it is
exchangeable), or upon the happening of any event, (a) matures
(excluding any
maturity as the result of an optional redemption by the issuer
thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or
is redeemable at the option of the holder thereof, in whole or in
part, or
requires the payment of any cash dividend or any other scheduled
payment
constituting a return of capital, in each case at any time on or
prior to the
first anniversary of the Maturity Date, or (b) is convertible into
or
exchangeable (unless at the sole option of the issuer thereof) for
(i) debt
securities or (ii) any Equity Interest referred to in clause (a)
above, in each
case at any time prior to the first anniversary of the Maturity
Date.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARIES" shall mean all Subsidiaries incorporated
or
organized under the laws of the United States of America, any State
thereof or
the District of Columbia.
"EARN-OUT CONSIDERATION" shall mean unsecured Indebtedness in the
form of a
conditional sale arrangement or deferred purchase price incurred by
the Borrower
or any of its Subsidiaries as partial consideration for a Permitted
Acquisition
in an amount not to exceed 50% of the aggregate consideration paid
for such
Permitted Acquisition, which Indebtedness shall be subordinated to
the
Obligations pursuant to an Earn-Out Subordination Agreement.
"EARN-OUT SUBORDINATION AGREEMENT" shall mean a Subordination
Agreement
substantially in the form of Exhibit F attached hereto or otherwise
satisfactory
to the Administrative Agent.
"ELIGIBLE ASSIGNEE" shall mean (a) a Lender, (b) an Affiliate of a
Lender,
(c) any purchaser of all or substantially all of a Lender's loan
portfolio, (d)
any other person (other than a natural person) approved by (i)
the
Administrative Agent and (ii) unless an Event of Default has
occurred and is
continuing, the Borrower, and (e) any commercial bank, insurance
company or
mutual fund or other entity that is an "accredited investor" (as
defined in
Regulation D promulgated under the Securities Act of 1933, as
amended) that
regularly extends credit or invests in commercial or bank
loans.
"ENVIRONMENTAL LAWS" shall mean all former, current and future
Federal,
state, local and foreign laws (including common law), treaties,
regulations,
rules, ordinances, codes, decrees, judgments, directives, orders
(including
consent orders), and agreements
<PAGE>
9
in each case, relating to protection of the environment, natural
resources,
human health and safety or the presence, Release of, or exposure
to, Hazardous
Materials, or the generation, manufacture, processing,
distribution, use,
treatment, storage, transport, recycling or handling of, or the
arrangement for
such activities with respect to, Hazardous Materials.
"ENVIRONMENTAL LIABILITY" shall mean all liabilities, obligations,
damages,
losses, claims, actions, suits, judgments, orders, fines,
penalties, fees,
expenses and costs (including administrative oversight costs,
natural resource
damages and remediation costs), whether contingent or otherwise,
arising out of
or relating to (a) compliance or non-compliance with any
Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment
or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the
Release of any Hazardous Materials or (e) any contract, agreement
or other
consensual arrangement pursuant to which liability is assumed or
imposed with
respect to any of the foregoing.
"EQUITY INTERESTS" shall mean shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity interests in any person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or
not
incorporated) that, together with the Borrower, is treated as a
single employer
under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302
of ERISA and Section 412 of the Code, is treated as a single
employer under
Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section
4043 of ERISA or the regulations issued thereunder, with respect to
a Plan
(other than an event for which the 30-day notice period is waived),
(b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived, (c) 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 Plan, (d) the incurrence by the Borrower or any of
its ERISA
Affiliates of any liability under Title IV of ERISA with respect to
the
termination of any Plan or the withdrawal or partial withdrawal of
the Borrower
or any of its ERISA Affiliates from any Plan or Multiemployer Plan,
(e) the
receipt by the Borrower or any of its ERISA Affiliates from the
PBGC or a plan
administrator of any notice relating to the intention to terminate
any Plan or
Plans or to appoint a trustee to administer any Plan, (f) the
adoption of any
amendment to a Plan that would require the provision of security
pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, (g) the
receipt by the
Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any
Multiemployer Plan from the Borrower or any of its ERISA Affiliates
of any
notice, concerning the imposition of Withdrawal Liability or a
determination
that a Multiemployer Plan is, or is expected to be, insolvent or
in
reorganization, within the meaning of Title IV of ERISA, (h) the
occurrence of a
"prohibited transaction" with
<PAGE>
10
respect to which the Borrower or any of the Subsidiaries is a
"disqualified
person" (within the meaning of Section 4975 of the Code) or with
respect to
which the Borrower or any such Subsidiary could otherwise be
liable, (i) any
Foreign Benefit Event or (j) any other event or condition with
respect to a Plan
or Multiemployer Plan that could result in liability of the
Borrower or any
Subsidiary.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article
VII.
"EXCLUDED TAXES" shall mean, with respect to the Administrative
Agent, any
Lender, the Issuing Bank or any other recipient of any payment to
be made by or
on account of any obligation of the Borrower hereunder, (a) income
or franchise
taxes imposed on (or measured by) its net income by the United
States of
America, or by the jurisdiction 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 applicable lending office is located, (b) any
branch
profits taxes imposed by the United States of America or any
similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in
the case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower
under Section 2.20(a)), any withholding tax that is imposed on
amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a
party to this
Agreement (or designates a new lending office) or is attributable
to such
Foreign Lender's failure to comply with Section 2.19(e), 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 the Borrower with respect to such withholding tax
pursuant to
Section 2.19(a).
"EXISTING CREDIT AGREEMENT" shall mean the Amended and Restated
Loan
Agreement dated as of February 11, 2005, as further amended,
supplemented or
otherwise modified to date, among the Borrower, Holdings, the
financial
institutions party thereto and Toronto Dominion (Texas), LLC, as
administrative
agent.
"EXISTING PIK NOTES" shall mean the 12% senior subordinated
pay-in-kind
notes due 2013 in an initial aggregate principal amount of
$25,000,000 issued by
Holdings pursuant to that certain Senior Subordinated Credit
Agreement dated as
of January 7, 2005, by and between Holdings, as borrower
thereunder, and
Citicorp Mezzanine III, L.P. (as assignee of Court Square Capital
Limited), as
lender.
"EXISTING SENIOR SUBORDINATED NOTES" shall mean the 10% senior
subordinated
notes due 2012 in an aggregate outstanding principal amount of
$30,000,000
issued by the Borrower pursuant to that certain Senior Subordinated
Credit
Agreement dated as of January 7, 2005, by and among the Borrower,
as borrower
thereunder, Court Square Capital Limited, as lender, and the
guarantors party
thereto.
<PAGE>
11
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, 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 on the
next succeeding Business Day by the Federal Reserve Bank of New
York, or, if
such rate is not so published for any day that is a Business Day,
the average of
the quotations for the day for such transactions received by the
Administrative
Agent from three Federal funds brokers of recognized standing
selected by it.
"FEE
LETTER" shall mean the Fee Letter dated October 18, 2005, between
the
Borrower and the Administrative Agent.
"FEES" shall mean the Commitment Fees, the Administrative Agent
Fees, the
L/C Participation Fees and the Issuing Bank Fees.
"FINANCIAL OFFICER" of any person shall mean the chief financial
officer,
principal accounting officer, treasurer or controller of such
person.
"FINANCIAL PERFORMANCE
COVENANTS" shall mean the covenants of the Borrower
set forth in Sections 6.11 and 6.12.
"FOREIGN BENEFIT EVENT" shall mean, with respect to any Foreign
Pension
Plan, (a) the existence of unfunded liabilities in excess of the
amount
permitted under any applicable law, or in excess of the amount that
would be
permitted absent a waiver from a Governmental Authority, (b) the
failure to make
the required contributions or payments, under any applicable law,
on or before
the due date for such contributions or payments, (c) the receipt of
a notice by
a Governmental Authority relating to the intention to terminate any
such Foreign
Pension Plan or to appoint a trustee or similar official to
administer any such
Foreign Pension Plan, or alleging the insolvency of any such
Foreign Pension
Plan, or (d) the incurrence of any liability in excess of
$2,000,000 by Holdings
or any Subsidiary under applicable law on account of the complete
or partial
termination of such Foreign Pension Plan or the complete or partial
withdrawal
of any participating employer therein.
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of
a jurisdiction other than that in which the Borrower is located.
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 PENSION PLAN" shall mean any benefit plan that under
applicable
law is required to be funded through a trust or other funding
vehicle other than
a trust or funding vehicle maintained exclusively by a Governmental
Authority.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a
Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles
applied on a consistent basis.
<PAGE>
12
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign
court or governmental agency, authority, instrumentality or
regulatory body.
"GRANTING LENDER" shall have the meaning assigned to such term in
Section
9.04(i).
"GUARANTEE" of or by any person shall mean any obligation,
contingent or
otherwise, of such person guaranteeing or having the economic
effect of
guaranteeing any Indebtedness or other obligation of any other
person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
and including
any obligation of such person, direct or indirect, (a) to purchase
or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or
other obligation or to purchase (or to advance or supply funds for
the purchase
of) any security for the payment of such Indebtedness or other
obligation, (b)
to purchase or lease property, securities or services for the
purpose of
assuring the owner of such Indebtedness or other obligation of the
payment of
such Indebtedness or other obligation or (c) to maintain working
capital, equity
capital or any other financial statement condition or liquidity of
the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not
include
endorsements for collection or deposit in the ordinary course of
business, or
customary indemnity obligations in effect on the Closing Date or
entered into in
connection with any acquisition or disposition of assets permitted
under this
Agreement (other than any such obligations with respect to
Indebtedness).
"GUARANTEE, COLLATERAL AND INTERCREDITOR AGREEMENT" shall mean
the
Guarantee, Collateral and Intercreditor Agreement, substantially in
the form of
Exhibit D, among the Borrower, Holdings, the Subsidiaries party
thereto, the
Collateral Agent for the benefit of the Secured Parties, the
Administrative
Agent and the administrative agent under the Term Loan Credit
Agreement.
"GUARANTORS" shall mean Holdings and the Subsidiary Guarantors.
"HAZARDOUS MATERIALS" shall mean (a) any petroleum products or
byproducts
and all other hydrocarbons, coal ash, radon gas, asbestos, urea
formaldehyde
foam insulation, polychlorinated biphenyls, chlorofluorocarbons and
all other
ozone-depleting substances and (b) any chemical, material,
substance or waste
that is prohibited, limited or regulated by or pursuant to any
Environmental
Law.
"HEDGING AGREEMENT" shall mean any interest rate protection
agreement,
foreign currency exchange agreement, commodity price protection
agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"HOLDINGS" shall have the meaning assigned to such term in the
preamble to
this Agreement.
"ID
BUY-OUT" shall mean a transaction or series of related transactions
(a)
pursuant to which Borrower or its Subsidiary terminates an
Independent
Distributor Agreement and acquires the businesses or assets related
to any such
Independent Distributor Agreement and (b) with respect to which the
Borrower or
any Subsidiary
<PAGE>
13
capitalizes the consideration paid to the applicable Independent
Distributor or
any related person in connection with such transaction.
"INDEPENDENT DISTRIBUTOR" shall mean any independent distributor
or
associate publisher of a magazine or a website published or
maintained by the
Borrower or any Subsidiary or any other person (other than an
employee of the
Borrower or any Subsidiary) that is authorized to sell or place
advertising in
any such magazine or website.
"INDEPENDENT DISTRIBUTOR AGREEMENT" shall mean any contract,
agreement,
arrangement or commitment between an Independent Distributor and
the Borrower or
its Subsidiaries for (a) the distribution of a magazine published
by the
Borrower or any Subsidiary or (ii) the sale or placement of
advertising in any
such magazine or any website maintained by the Borrower or any
Subsidiary.
"INDEBTEDNESS" of any person shall mean, without duplication, (a)
all
obligations of such person for borrowed money or with respect to
deposits or
advances of any kind, (b) all obligations of such person evidenced
by bonds,
debentures, notes or similar instruments, (c) all obligations of
such person
upon which interest charges are customarily paid, (d) all
obligations of such
person under conditional sale or other title retention agreements
relating to
property or assets purchased by such person, (e) all obligations of
such person
issued or assumed as the deferred purchase price of property or
services
(excluding trade accounts payable and accrued obligations incurred
in the
ordinary course of business), (f) all Indebtedness of others
secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or
otherwise, to be secured by) any Lien on property owned or acquired
by such
person, whether or not the obligations secured thereby have been
assumed
(provided that, if recourse for such Indebtedness is limited to an
asset, the
amount of such Indebtedness arising under this clause (f) shall be
limited to
the lesser of the outstanding principal amount thereof and the fair
market value
of the property subject to such Lien), (g) all Guarantees by such
person of
Indebtedness of others, (h) all Capital Lease Obligations and
Synthetic Lease
Obligations of such person, (i) all obligations of such person as
an account
party in respect of letters of credit, (j) all obligations of such
person in
respect of bankers' acceptances and (k) obligations in respect of
Hedging
Agreements. For purposes of determining the amount of Indebtedness
of any person
under clause (k) of the preceding sentence, the amount of the
obligations of
such person in respect of any Hedging Agreement at any time shall
be zero prior
to the time any counterparty to such Hedging Agreement shall be
entitled to
terminate such Hedging Agreement and, thereafter, shall be the
maximum aggregate
amount (giving effect to any netting agreements) that such person
would be
required to pay if such Hedging Agreement were terminated at such
time. The
Indebtedness of any person shall include the Indebtedness of any
partnership in
which such person is a general partner to the extent such person is
liable
therefor as a result of such person's relationship with such entity
(by
contract, as a matter of law or otherwise), except to the extent
the terms of
such Indebtedness expressly provide that such person is not liable
therefor.
Indebtedness shall not include (i) deferred revenue as determined
in accordance
with GAAP or (ii) preferred stock required to be treated as
<PAGE>
14
indebtedness under GAAP (except to the extent such preferred stock
is
Disqualified Stock).
"INDEBTEDNESS FOR MONEY BORROWED" shall mean, with respect to any
person,
Indebtedness for money borrowed and Indebtedness represented by
notes payable
and drafts accepted representing extensions of credit, all
obligations evidenced
by bonds, debentures, notes or other similar instruments, all
Indebtedness upon
which interest charges are customarily paid, all Capital Lease
Obligations and
Synthetic Lease Obligations, all Earn-Out Consideration, all
reimbursement
obligations with respect to outstanding letters of credit, all
Indebtedness
issued or assumed as full or partial payment for property or
services (other
than deferred revenue, as determined in accordance with GAAP,
arising in the
ordinary course of business and consistent with past business
practice, and
trade payables arising in the ordinary course of business, but only
if and so
long as such accounts are payable on customary trade terms),
whether or not any
such notes, drafts, obligations or Indebtedness represent
Indebtedness for money
borrowed, and, without duplication, Guarantees of any of the
foregoing. For
purposes of this definition, interest which is accrued but not paid
on the
scheduled due date for such interest shall be deemed Indebtedness
for Money
Borrowed.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INTEREST COVERAGE RATIO" shall mean, for any period, the ratio of
(a)
Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for
such period. In any period of four consecutive Quarterly Reporting
Periods in
which a Permitted Acquisition or an Asset Sale occurs, the Interest
Coverage
Ratio shall be determined on a pro forma basis in accordance with
Section 1.03.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR
Loan
(including any Swingline Loan), the last Business Day of each
March, June,
September and December, and (b) with respect to any Eurodollar
Loan, the last
day of the Interest Period applicable to the Borrowing of which
such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest
Period of more
than three months' duration, each day that would have been an
Interest Payment
Date had successive Interest Periods of three months' duration been
applicable
to such Borrowing.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing, the
period commencing on the date of such Borrowing and ending on the
numerically
corresponding day (or, if there is no numerically corresponding
day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the
Borrower may elect; provided, however, that if any Interest Period
would end on
a day other than a Business Day, such Interest Period shall be
extended to the
next succeeding Business Day unless such next succeeding Business
Day would fall
in the next calendar month, in which case such Interest Period
shall end on the
next preceding Business Day. Interest shall accrue from and
including the first
day of an Interest Period to but excluding the last day of such
Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the
date on
which such Borrowing is made and thereafter shall be the effective
date of the
most recent conversion or continuation of such Borrowing.
<PAGE>
15
"ISSUING BANK" shall mean, as the context may require, (a) Credit
Suisse,
acting through any of its Affiliates or branches, in its capacity
as the issuer
of Letters of Credit hereunder and (b) any other Lender that may
become an
Issuing Bank pursuant to Section 2.22(i) or 2.22(k), with respect
to Letters of
Credit issued by such Lender. The Issuing Bank may, in its
discretion, arrange
for one or more Letters of Credit to be issued by Affiliates or
branches of the
Issuing Bank, in which case the term "Issuing Bank" shall include
any such
Affiliate or branch with respect to Letters of Credit issued by
such Affiliate
or branch.
"ISSUING BANK FEES" shall have the meaning assigned to such term in
Section
2.05(c).
"L/C
COMMITMENT" shall mean the commitment of the Issuing Bank to
issue
Letters of Credit pursuant to Section 2.22.
"L/C
DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing
Bank pursuant to a Letter of Credit.
"L/C
EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn
amount of all outstanding Letters of Credit at such time and (b)
the aggregate
principal amount of all L/C Disbursements that have not yet been
reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any
time shall
equal its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C
PARTICIPATION FEE" shall have the meaning assigned to such term
in
Section 2.05(c).
"LENDERS" shall mean (a) the persons listed on Schedule 2.01 (other
than
any such person that has ceased to be a party hereto pursuant to an
Assignment
and Acceptance) and (b) any person that has become a party hereto
pursuant to an
Assignment and Acceptance. Unless the context clearly indicates
otherwise, the
term "Lenders" shall include the Swingline Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant
to
Section 2.22.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing
for any
Interest Period, the rate per annum determined by the
Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two
Business Days
prior to the commencement of such Interest Period by reference to
the British
Bankers' Association Interest Settlement Rates for deposits in
dollars (as set
forth by any service selected by the Administrative Agent that has
been
nominated by the British Bankers' Association as an authorized
information
vendor for the purpose of displaying such rates) for a period equal
to such
Interest Period; provided that, to the extent that an interest rate
is not
ascertainable pursuant to the foregoing provisions of this
definition, the "LIBO
Rate" shall be the interest rate per annum determined by the
Administrative
Agent to be the average of the rates per annum at which deposits in
dollars are
offered for such relevant Interest Period to major banks in the
London interbank
market in London,
<PAGE>
16
England by the Administrative Agent at approximately 11:00 a.m.
(London time) on
the date that is two Business Days prior to the beginning of such
Interest
Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage,
deed of
trust, lien, pledge, encumbrance, charge or security interest in or
on such
asset, (b) the interest of a vendor or a lessor under any
conditional sale
agreement, capital lease or title retention agreement (or any
financing lease
having substantially the same economic effect as any of the
foregoing) relating
to such asset and (c) in the case of securities, any purchase
option, call or
similar right of a third party with respect to such securities.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of Credit,
the
Security Documents and the promissory notes, if any, executed and
delivered
pursuant to Section 2.04(e).
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
"LOANS" shall mean the Revolving Loans and the Swingline Loans.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse
effect on the
business, assets, liabilities, operations, financial condition or
operating
results of the Borrower and the Subsidiaries, taken as a whole, (b)
a material
impairment of the ability of the Borrower and the other Loan
Parties (taken as a
whole) to perform their obligations under any Loan Document or (c)
a material
impairment of the rights of or benefits available to the Lenders
under any Loan
Document.
"MATERIAL INDEBTEDNESS" shall mean (a) Indebtedness incurred by
the
Borrower or any Guarantor pursuant to the Term Loan Credit
Agreement and (b) any
other Indebtedness (other than the Loans and Letters of Credit), or
obligations
in respect of one or more Hedging Agreements, of any one or more of
Holdings,
the Borrower and the Subsidiaries in an aggregate principal amount
exceeding
$5,000,000. For purposes of determining Material Indebtedness, the
"principal
amount" of the obligations of Holdings, the Borrower or any
Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum
aggregate
amount (giving effect to any netting agreements) that Holdings, the
Borrower or
such Subsidiary would be required to pay if such Hedging Agreement
were
terminated at such time.
"MATURITY DATE" shall mean November 30, 2010.
"MONTHLY REPORTING PERIOD" shall mean (a) prior to the delivery of
a Notice
of Change of Reporting Period, any of the initial twelve four-week
reporting
periods during an Annual Reporting Period or the final four- or
five-week
reporting period during such an Annual Reporting Period, and (b)
after delivery
of a Notice of Change of Reporting Period, each monthly period
thereafter ending
on the last day of such month.
"MOODY'S" shall mean Moody's Investors Service, Inc., or any
successor
thereto.
<PAGE>
17
"MORTGAGED PROPERTIES" shall have the meaning assigned to such term
in
Section 5.12(a).
"MORTGAGES" shall mean the
mortgages, deeds of trust and other security
documents delivered pursuant to Section 5.12, each in form and
substance
reasonably satisfactory to the Collateral Agent.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section
4001(a)(3) of ERISA.
"NOTICE OF CHANGE OF REPORTING PERIOD" shall mean a written
notice
delivered to the Administrative Agent by the Borrower stating that,
as of the
date specified therein, the Borrower will adopt a twelve-month
fiscal year
ending on any of March 31, June 30, September 30 or December
31.
"OBLIGATIONS" shall mean the Revolving Loan Obligations and the
Term Loan
Obligations.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary
taxes or any other excise or property taxes, charges or similar
levies arising
from any payment made under any Loan Document or from the
execution, delivery or
enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and
defined in ERISA.
"PERFECTION CERTIFICATE" shall mean the Perfection Certificate
substantially in the form of Exhibit B to the Guarantee, Collateral
and
Intercreditor Agreement.
"PERMITTED ACQUISITION" shall have the meaning assigned to such
term in
Section 6.04(g).
"PERMITTED CURE SECURITIES" shall mean Qualified Capital Stock of
Holdings
issued to one or more of the Permitted Investors (a) that is common
stock of
Holdings or (b) upon which all dividends or distributions, at the
election of
Holdings, may be payable in additional shares of such Qualified
Capital Stock,
the proceeds of which are contributed by Holdings to the Borrower
as cash common
equity.
"PERMITTED HOLDINGS SUBORDINATED DEBT" shall mean (a) the Existing
PIK
Notes and (b) any other unsecured Indebtedness of Holdings that (i)
is
subordinated to the Obligations pursuant to a Subordination
Agreement
substantially in the form attached hereto as Exhibit G or otherwise
satisfactory
to the Administrative Agent or (ii) is otherwise subordinated to
the Obligations
and incurred on terms and conditions reasonably satisfactory to
the
Administrative Agent.
"PERMITTED INVESTMENTS" shall mean:
<PAGE>
18
(a)
direct obligations of, or obligations the principal of and interest
on
which are unconditionally guaranteed by, the United States of
America (or by any
agency thereof to the extent such obligations are backed by the
full faith and
credit of the United States of America), in each case maturing
within one year
from the date of acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the
date
of acquisition thereof and having, at such date of acquisition, the
highest
credit rating obtainable from S&P or from Moody's;
(c)
investments in certificates of deposit, banker's acceptances and
time
deposits maturing within one year from the date of acquisition
thereof issued or
guaranteed by or placed with, and money market deposit accounts
issued or
offered by, the Administrative Agent or any domestic office of any
commercial
bank organized under the laws of the United States of America or
any State
thereof that has a combined capital and surplus and undivided
profits of not
less than $500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more
than
30 days for securities described in clause (a) above and entered
into with a
financial institution satisfying the criteria of clause (c)
above;
(e)
investments in "money market funds" within the meaning of Rule 2a-7
of
the Investment Company Act of 1940, as amended, substantially all
of whose
assets are invested in investments of the type described in clauses
(a) through
(d) above;
(f)
investments in so-called "auction rate" securities rated AAA or
higher
by S&P or Aaa or higher by Moody's and which have a reset date
not more than 90
days from the date of acquisition thereof; and
(g) other short-term
investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in
investments
of a type analogous to the foregoing.
"PERMITTED INVESTORS" shall mean the Sponsor, its Affiliates
and/or
investment funds under common control with the Sponsor and/or
limited partners
of the Sponsor for whom the Sponsor has been assigned voting
rights.
"PERSON" shall mean any natural person, corporation, business
trust, joint
venture, association, company, limited liability company,
partnership,
Governmental Authority or other entity.
"PLAN" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code or Section 307 of ERISA, and in respect of which
the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would
under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of
ERISA.
<PAGE>
19
"PRIME RATE" shall mean the rate of interest per annum determined
from time
to time by Credit Suisse as its prime rate in effect at its
principal office in
New York City and notified to the Borrower.
"PRO
RATA PERCENTAGE" of any Revolving Credit Lender at any time shall
mean
the percentage of the Total Commitment represented by such Lender's
Revolving
Credit Commitment. In the event the Revolving Credit Commitments
shall have
expired or been terminated, the Pro Rata Percentages shall be
determined on the
basis of the Revolving Credit Commitments most recently in effect,
giving effect
to any subsequent assignments.
"QUALIFIED CAPITAL STOCK" of any person shall mean any Equity
Interest of
such person that is not Disqualified Stock.
"QUALIFIED PUBLIC OFFERING" shall mean the initial underwritten
public
offering of common Equity Interests of Holdings pursuant to an
effective
registration statement filed with the Securities and Exchange
Commission in
accordance with the Securities Act of 1933, as amended, that
results in at least
$50,000,000 of net cash proceeds to Holdings.
"QUARTERLY REPORTING PERIOD" shall mean (a) prior to the delivery
of a
Notice of Change of Reporting Period, any of the first three
twelve-week
reporting periods beginning on the day after the last Sunday in
March of any
calendar year and ending in each of June, September and December,
respectively,
of such calendar year and the immediately following sixteen- or
seventeen-week
reporting period ending on the last Sunday in March of each
calendar year, and
(b) after the delivery of a Notice of Change of Reporting Period,
any of the
three-month periods ending on March 31, June 30, September 30 and
December 31 of
each year.
"REGISTER" shall have the meaning assigned to such term in Section
9.04(d).
"REGULATION T" shall mean Regulation T of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean
Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"RELATED FUND" shall mean, with respect to any Lender that is a
fund or
commingled investment vehicle that invests in bank loans, any other
fund that
invests in bank loans and is managed or advised by the same
investment advisor
as such Lender or by an Affiliate of such investment advisor.
"RELATED PARTIES" shall mean, with respect to any specified person,
such
person's Affiliates and the respective directors, trustees,
officers, employees,
agents and advisors of such person and such person's
Affiliates.
<PAGE>
20
"RELEASE" shall mean any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal, discharge, dispersal,
leaching or
migration into or through the environment or within or upon any
building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans
(excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit
Commitments representing more than 50% of the sum of all Loans
outstanding
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and
unused
Revolving Credit Commitments at such time; provided that the
Revolving Loans,
L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments of any
Defaulting Lender shall be disregarded in the determination of the
Required
Lenders at any time.
"RESPONSIBLE OFFICER" of any person shall mean any executive
officer or
Financial Officer of such person and any other officer or similar
official
thereof responsible for the administration of the obligations of
such person in
respect of this Agreement.
"RESTRICTED INDEBTEDNESS" shall mean Indebtedness of Holdings, the
Borrower
or any Subsidiary, the payment, prepayment, repurchase or
defeasance of which is
restricted under Section 6.09(b).
"RESTRICTED PAYMENT" shall mean any dividend or other distribution
(whether
in cash, securities or other property) with respect to any Equity
Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether
in cash,
securities or other property), including any sinking fund or
similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or
termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary
or any option, warrant or other right to acquire any such Equity
Interests in
Holdings, the Borrower or any Subsidiary.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing comprised of
Revolving
Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each
Lender, the
commitment of such Lender to make Revolving Loans hereunder as set
forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same
may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced
or increased
from time to time pursuant to assignments by or to such Lender
pursuant to
Section 9.04.
"REVOLVING CREDIT LENDER" shall mean a Lender with a Revolving
Credit
Commitment or an outstanding Revolving Loan.
"REVOLVING LOAN OBLIGATIONS" shall mean all obligations defined
as
"Revolving Loan Obligations" in the Guarantee, Collateral and
Intercreditor
Agreement and the other Security Documents.
"REVOLVING LOANS" shall mean the revolving loans made by the
Lenders to the
Borrower pursuant to clause (b) of Section 2.01.
<PAGE>
21
"REVOLVING LOAN SECURED PARTIES" shall have the meaning assigned to
such
term in the Guarantee, Collateral and Intercreditor Agreement.
"SECURED PARTIES" shall mean the Revolving Loan Secured Parties and
the
Term Loan Secured Parties.
"SECURITY DOCUMENTS" shall mean the Mortgages, the Guarantee,
Collateral
and Intercreditor Agreement and each of the security agreements,
mortgages and
other instruments and documents executed and delivered pursuant to
any of the
foregoing or pursuant to Section 5.09.
"SENIOR NOTE DOCUMENTS" shall mean the indenture under which the
Senior
Notes are issued and all other instruments, agreements and other
documents
evidencing or governing the Senior Notes or providing for any
Guarantee or other
right in respect thereof.
"SENIOR NOTES" shall mean the Borrower's 10 3/4% Senior Notes due
2013, in
an initial aggregate principal amount of $175,000,000.
"SENIOR SECURED DEBT" shall mean, at any time, the sum of (a) the
aggregate
principal amount of the Obligations outstanding under this
Agreement and the
Term Loan Credit Agreement and (b) the aggregate principal amount
of all other
Indebtedness of the Borrower and its Subsidiaries that is secured
by any Lien on
any asset of the Borrower or any of its Subsidiaries and is
outstanding at such
time.
"SENIOR SECURED LEVERAGE RATIO" shall mean, on any date, the ratio
of
Senior Secured Debt on such date to Consolidated EBITDA for the
period of four
consecutive Quarterly Reporting Periods most recently ended on or
prior to such
date. In any period of four consecutive Quarterly Reporting Periods
in which a
Permitted Acquisition occurs, the Senior Secured Leverage Ratio
shall be
determined on a pro forma basis in accordance with Section
1.03.
"SPC" shall have the meaning assigned to such term in Section
9.04(i).
"SPONSOR" shall mean Citigroup Venture Capital Equity Partners,
L.P., a
Delaware limited partnership.
"S&P" shall mean Standard & Poor's Ratings Service, or any
successor
thereto.
"STATUTORY RESERVES" shall mean a fraction (expressed as a
decimal), the
numerator of which is the number one and the denominator of which
is the number
one minus the aggregate of the maximum reserve percentages
(including any
marginal, special, emergency or supplemental reserves) expressed as
a decimal
established by the Board and any other banking authority, domestic
or foreign,
to which the Administrative Agent or any Lender (including any
branch,
Affiliate, or other fronting office making or holding a Loan) is
subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board).
Eurodollar
Loans shall be deemed to constitute Eurocurrency Liabilities as
defined in
Regulation D of the Board) and to be subject to such reserve
requirements
<PAGE>
22
without benefit of or credit for proration, exemptions or offsets
that may be
available from time to time to any Lender under such Regulation D.
Statutory
Reserves shall be adjusted automatically on and as of the effective
date of any
change in any reserve percentage.
"SUBSIDIARY" shall mean, with respect to any person (herein
referred to as
the "PARENT"), any corporation, partnership, limited liability
company,
association or other business entity (a) of which securities or
other ownership
interests representing more than 50% of the equity or more than 50%
of the
ordinary voting power or more than 50% of the general partnership
interests are,
at the time any determination is being made, owned, Controlled or
held, or (b)
that is, at the time any determination is made, otherwise
Controlled, by the
parent or one or more subsidiaries of the parent or by the parent
and one or
more subsidiaries of the parent.
"SUBSIDIARY" shall mean any subsidiary of the Borrower; provided,
however,
that Unrestricted Subsidiaries shall be deemed not to be
Subsidiaries for any
purpose (other than for purposes of Sections 3.09, 3.14, 3.16 and
3.17) of this
Agreement or the other Loan Documents.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary listed on
Schedule
1.01(a), and each other Subsidiary that is or becomes a party to
the Guarantee,
Collateral and Intercreditor Agreement.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to
make loans pursuant to Section 2.21, as the same may be reduced
from time to
time pursuant to Section 2.09.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount
at such time of all outstanding Swingline Loans. The Swingline
Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the
aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall mean Credit Suisse, acting through any of
its
Affiliates or branches, in its capacity as lender of Swingline
Loans hereunder.
"SWINGLINE LOAN" shall mean any loan made by the Swingline Lender
pursuant
to Section 2.21.
"SYNTHETIC LEASE" shall mean, as to any person, any lease
(including leases
that may be terminated by the lessee at any time) of any property
(whether real,
personal or mixed) (a) that is accounted for as an operating lease
under GAAP
and (b) in respect of which the lessee retains or obtains ownership
of the
property so leased for U.S. federal income tax purposes, other than
any such
lease under which such person is the lessor.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, as to any person, an
amount equal
to the capitalized amount of the remaining lease payments under any
Synthetic
Lease that would appear on a balance sheet of such person in
accordance with
GAAP if such obligations were accounted for as Capital Lease
Obligations.
<PAGE>
23
"SYNTHETIC PURCHASE AGREEMENT" shall mean any swap, derivative or
other
agreement or combination of agreements pursuant to which Holdings,
the Borrower
or any Subsidiary is or may become obligated to make (a) any
payment in
connection with a purchase by any third party from a person other
than Holdings,
the Borrower or any Subsidiary of any Equity Interest or Restricted
Indebtedness
or (b) any payment (other than on account of a permitted purchase
by it of any
Equity Interest or Restricted Indebtedness) the amount of which is
determined by
reference to the price or value at any time of any Equity Interest
or Restricted
Indebtedness; provided that no phantom stock or similar plan
providing for
payments only to current or former directors, officers or employees
of Holdings,
the Borrower or the Subsidiaries (or to their heirs or estates)
shall be deemed
to be a Synthetic Purchase Agreement.
"TAXES" shall mean any and all present or future taxes, levies,
imposts,
duties, deductions, charges, liabilities or withholdings imposed by
any
Governmental Authority.
"TERM LOAN CREDIT AGREEMENT" shall mean the Term Loan Credit
Agreement
dated as of November 30, 2005, among the Borrower, Holdings, the
lenders party
thereto and Credit Suisse, as administrative agent and collateral
agent.
"TERM LOAN DOCUMENTS" shall mean the Term Loan Credit Agreement,
the
security documents entered into in connection therewith, and any
promissory
notes executed and delivered thereunder.
"TERM LOAN OBLIGATIONS" shall mean all obligations defined as "Term
Loan
Obligations" in the Guarantee, Collateral and Intercreditor
Agreement and the
other Security Documents.
"TERM LOANS" shall mean the term loans made to the Borrower in an
initial
aggregate principal amount of $50,000,000 pursuant to the Term Loan
Credit
Agreement.
"TERM LOAN SECURED PARTIES" shall have the meaning assigned to such
term in
the Guarantee, Collateral and Intercreditor Agreement.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
the
Revolving Credit Commitments, as in effect at such time. The
initial Total
Commitment is $35,000,000.
"TRANSACTIONS" shall mean, collectively, (a) the execution,
delivery and
performance by Holdings, the Borrower and the Subsidiaries party
thereto of the
Senior Note Documents and the issuance of the Senior Notes, (b) the
execution,
delivery and performance by the Loan Parties of the Loan Documents
to which they
are a party and the making of the Borrowings hereunder, (c) the
execution,
delivery and performance by Holdings, the Borrower and the
Subsidiaries party
thereto of the Term Loan Documents and the borrowing of the Term
Loans
thereunder, (d) the repayment of all amounts due or outstanding
under or in
respect of, and the termination of, the Existing Credit Agreement
and the
Existing Senior Subordinated Notes, and (e) the payment of related
fees and
expenses.
<PAGE>
24
"TYPE", when used in respect of any Loan or Borrowing, shall refer
to the
Rate by reference to which interest on such Loan or on the Loans
comprising such
Borrowing is determined. For purposes hereof, the term "RATE" shall
mean the
Adjusted LIBO Rate and the Alternate Base Rate.
"ULTIMATE PARENT" shall mean GMH Holding Company, a Delaware
corporation.
"UNRESTRICTED SUBSIDIARY" shall mean (a) each subsidiary designated
by the
Borrower as an "Unrestricted Subsidiary" as of the Closing Date, as
set forth on
Schedule 1.01(b), and (b) any subsidiary of the Borrower that is
acquired or
organized after the Closing Date and designated by the Borrower as
an
Unrestricted Subsidiary hereunder by written notice to the
Administrative Agent
in accordance with Section 5.14.
"USA
PATRIOT ACT" shall mean The Uniting and Strengthening America
by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of
2001 (Title III of Pub. L. No. 107-56 (signed into law October 26,
2001)).
"WHOLLY OWNED SUBSIDIARY" of any person shall mean a subsidiary of
such
person of which securities (except for directors' qualifying
shares) or other
ownership interests representing 100% of the Equity Interests are,
at the time
any determination is being made, owned, Controlled or held by such
person or one
or more wholly owned Subsidiaries of such person or by such person
and one or
more wholly owned Subsidiaries of such person.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01
shall apply
equally to both the singular and plural forms of the terms defined.
Whenever the
context may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "include", "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation". The
word "will"
shall be construed to have the same meaning and effect as the word
"shall"; and
the words "asset" and "property" shall be construed as having the
same meaning
and effect and to refer to any and all tangible and intangible
assets and
properties, including cash, securities, accounts and contract
rights. All
references herein to Articles, Sections, Exhibits and Schedules
shall be deemed
references to Articles and Sections of, and Exhibits and Schedules
to, this
Agreement unless the context shall otherwise require. Except as
otherwise
expressly provided herein, (a) any definition of or reference to
any agreement,
instrument or other document herein shall be construed as referring
to such
agreement, instrument or other document as from time to time
amended,
supplemented or otherwise modified (subject to any restrictions on
such
amendments, supplements or modifications set forth herein) and (b)
all terms of
an accounting or financial nature shall be construed in accordance
with GAAP, as
in effect from time to time; provided, however, that if the
Borrower notifies
the Administrative Agent that the Borrower wishes to amend any
covenant in
Article VI or any related definition to eliminate the effect of any
change in
GAAP occurring after the
<PAGE>
25
date of this Agreement on the operation of such covenant (or if
the
Administrative Agent notifies the Borrower that the Required
Lenders wish to
amend Article VI or any related definition for such purpose), then
the
Borrower's compliance with such covenant shall be determined on the
basis of
GAAP in effect immediately before the relevant change in GAAP
became effective,
until either such notice is withdrawn or such covenant is amended
in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. PRO FORMA CALCULATIONS. With respect to any period of
four
consecutive Quarterly Reporting Periods during which any Permitted
Acquisition
or any Asset Sale involving any assets to which any Consolidated
EBITDA is
directly attributable (as reasonably determined by the Borrower in
good faith)
occurs (and for purposes of determining whether an acquisition is a
Permitted
Acquisition under Section 6.04(g) or would result in a Default or
an Event of
Default), the Interest Coverage Ratio and the Senior Secured
Leverage Ratio
shall be calculated with respect to such period on a pro forma
basis after
giving effect to such Permitted Acquisition or Asset Sale
(including, without
duplication, (a) all pro forma adjustments permitted or required by
Article 11
of Regulation S-X under the Securities Act of 1933, as amended, and
(b) pro
forma adjustments for cost savings (net of continuing associated
expenses) to
the extent such cost savings are factually supportable, are
expected to have a
continuing impact and have been realized or are reasonably expected
to be
realized within 12 months following such Permitted Acquisition or
Asset Sale (as
reasonably determined by the Borrower and approved by the
Administrative Agent);
provided that all such adjustments shall be set forth in a
reasonably detailed
certificate of a Financial Officer of the Borrower), using, for
purposes of
making such calculations, the historical financial statements of
the Borrower
and the Subsidiaries which shall be reformulated as if such
Permitted
Acquisition, and any other Permitted Acquisitions that have been
consummated
during the period, had been consummated on the first day of such
period.
SECTION 1.04. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes
of this
Agreement, Loans may be classified and referred to by Class (e.g.,
a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and
Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified
and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
ARTICLE
II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and
relying
upon the representations and warranties herein set forth, each
Lender agrees,
severally and not jointly, to make Revolving Loans to the Borrower,
at any time
and from time to time after the Closing Date, and until the earlier
of the
Maturity Date and the termination of the Revolving Credit
Commitment of such
Lender in accordance with the terms hereof, in an aggregate
principal amount at
any time outstanding that will not result in such Lender's Credit
Exposure
exceeding such Lender's Revolving Credit Commitment. Within the
limits set forth
in the preceding sentence and subject to the
<PAGE>
26
terms, conditions and limitations set forth herein, the Borrower
may borrow, pay
or prepay and reborrow Revolving Loans.
SECTION 2.02. LOANS. (a) Each Loan (other than Swingline Loans)
shall be
made as part of a Borrowing consisting of Revolving Loans made by
the Lenders
ratably in accordance with their applicable Commitments; provided,
however, that
the failure of any Lender to make any Revolving Loan shall not in
itself relieve
any other Lender of its obligation to lend hereunder (it being
understood,
however, that no Lender shall be responsible for the failure of any
other Lender
to make any Revolving Loan required to be made by such other
Lender). Except for
Revolving Loans deemed made pursuant to Section 2.02(f), the
Revolving Loans
comprising any Borrowing shall be in an aggregate principal amount
that is (i)
an integral multiple of $1,000,000 and not less than $3,000,000 or
(ii) equal to
the remaining available balance of the Revolving Credit
Commitments.
(b)
Subject to Sections 2.02(f), 2.08 and 2.14, each Borrowing shall
be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower
may request
pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such
Lender to make
such Revolving Loan; provided that any exercise of such option
shall not affect
the obligation of the Borrower to repay such Revolving Loan in
accordance with
the terms of this Agreement and such Lender shall not be entitled
to any amounts
payable under Sections 2.13 or 2.19 solely in respect of increased
costs
resulting from such exercise and existing at the time of such
exercise.
Borrowings of more than one Type may be outstanding at the same
time; provided,
however, that the Borrower shall not be entitled to request any
Borrowing that,
if made, would result in more than eight Eurodollar Borrowings
outstanding
hereunder at any time. For purposes of the foregoing, Borrowings
having
different Interest Periods, regardless of whether they commence on
the same
date, shall be considered separate Borrowings.
(c)
Except with respect to Revolving Loans made pursuant to Section
2.02(f), each Lender shall make each Revolving Loan to be made by
it hereunder
on the proposed date thereof by wire transfer of immediately
available funds to
such account in New York City as the Administrative Agent may
designate not
later than 1:00 p.m. (New York City time) and the Administrative
Agent shall
promptly credit the amounts so received to an account designated by
the Borrower
in the applicable Borrowing Request or, if a Borrowing shall not
occur on such
date because any condition precedent herein specified shall not
have been met,
return the amounts so received to the respective Lenders.
(d)
Unless the Administrative Agent shall have received notice from
a
Lender prior to the date of any Borrowing that such Lender will not
make
available to the Administrative Agent such Lender's portion of such
Borrowing,
the Administrative Agent may assume that such Lender has made such
portion
available to the Administrative Agent on the date of such Borrowing
in
accordance with paragraph (c) above and the Administrative Agent
may, in
reliance upon such assumption, make available to the Borrower on
such date a
corresponding amount. If the Administrative Agent shall have so
made funds
available then, to the extent that such Lender shall not
<PAGE>
27
have made such portion available to the Administrative Agent, such
Lender and
the Borrower severally agree to repay to the Administrative Agent
forthwith on
demand such corresponding amount together with interest thereon,
for each day
from the date such amount is made available to the Borrower to but
excluding the
date such amount is repaid to the Administrative Agent at (i) in
the case of the
Borrower, a rate per annum equal to the interest rate applicable at
the time to
the Revolving Loans comprising such Borrowing and (ii) in the case
of such
Lender, a rate determined by the Administrative Agent to represent
its cost of
overnight or short-term funds (which determination shall be
conclusive absent
manifest error). If such Lender shall repay to the Administrative
Agent such
corresponding amount, such amount shall constitute such Lender's
Revolving Loan
as part of such Borrowing for purposes of this Agreement.
(e)
Notwithstanding any other provision of this Agreement, the
Borrower
shall not be entitled to request any Revolving Credit Borrowing if
the Interest
Period requested with respect thereto would end after the Maturity
Date.
(f)
If the Issuing Bank shall not have received from the Borrower
the
payment required to be made by Section 2.22(e) within the time
specified in such
Section, the Issuing Bank will promptly notify the Administrative
Agent of the
L/C Disbursement and the Administrative Agent will promptly notify
each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata
Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of
immediately
available funds to the Administrative Agent not later than 2:00
p.m. (New York
City time) on such date (or, if such Revolving Credit Lender shall
have received
such notice later than 12:00 noon (New York City time) on any day,
not later
than 10:00 a.m. (New York City time) on the immediately following
Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C
Disbursement
(it being understood that (i) if the conditions precedent to
borrowing set forth
in Sections 4.01(b) and (c) have been satisfied, such amount shall
be deemed to
constitute an ABR Revolving Loan of such Lender and, to the extent
of such
payment, the obligations of the Borrower in respect of such L/C
Disbursement
shall be discharged and replaced with the resulting ABR Revolving
Credit
Borrowing, and (ii) if such conditions precedent to borrowing have
not been
satisfied, then any such amount paid by any Revolving Credit Lender
shall not
constitute a Loan and shall not relieve the Borrower from its
obligation to
reimburse such L/C Disbursement), and the Administrative Agent will
promptly pay
to the Issuing Bank amounts so received by it from the Revolving
Credit Lenders.
The Administrative Agent will promptly pay to the Issuing Bank any
amounts
received by it from the Borrower pursuant to Section 2.22(e) prior
to the time
that any Revolving Credit Lender makes any payment pursuant to this
paragraph
(f); any such amounts received by the Administrative Agent
thereafter will be
promptly remitted by the Administrative Agent to the Revolving
Credit Lenders
that shall have made such payments and to the Issuing Bank, as
their interests
may appear. If any Revolving Credit Lender shall not have made its
Pro Rata
Percentage of such L/C Disbursement available to the Administrative
Agent as
provided above, such Lender and the Borrower severally agree to pay
interest on
such amount, for each day from and including the date such amount
is required to
be paid in accordance with this paragraph to but excluding the date
such amount
is paid, to the Administrative Agent for the account of the Issuing
Bank at (i)
in the case of the Borrower, a rate per annum equal to the interest
rate
applicable to
<PAGE>
28
Revolving Loans pursuant to Section 2.06(a), and (ii) in the case
of such
Lender, for the first such day, the Federal Funds Effective Rate,
and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. BORROWING PROCEDURE. In order to request a Borrowing
(other
than a Swingline Loan or a deemed Borrowing pursuant to Section
2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall notify
the
Administrative Agent of such request by telephone (a) in the case
of a
Eurodollar Borrowing, not later than 12:00 noon (New York City
time) three
Business Days before a proposed Borrowing, and (b) in the case of
an ABR
Borrowing, not later than 12:00 noon (New York City time) one
Business Day
before a proposed Borrowing. Each such telephonic Borrowing Request
shall be
irrevocable, and shall be confirmed promptly by hand delivery or
fax to the
Administrative Agent of a written Borrowing Request and shall
specify the
following information: (i) whether such Borrowing is to be a
Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a
Business Day); (iii) the number and location of the account to
which funds are
to be disbursed; (iv) the amount of such Borrowing; and (v) if such
Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect
thereto;
provided, however, that, notwithstanding any contrary specification
in any
Borrowing Request, each requested Borrowing shall comply with the
requirements
set forth in Section 2.02. If no election as to the Type of
Borrowing is
specified in any such notice, then the requested Borrowing shall be
an ABR
Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is
specified in any such notice, then the Borrower shall be deemed to
have selected
an Interest Period of one month's duration. The Administrative
Agent shall
promptly advise the applicable Lenders of any notice given pursuant
to this
Section 2.03 (and the contents thereof), and of each Lender's
portion of the
requested Borrowing.
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a) The
Borrower hereby
unconditionally promises to pay to the Administrative Agent for the
account of
each Lender the then unpaid principal amount of each Revolving Loan
of such
Lender on the Maturity Date. The Borrower hereby promises to pay to
the
Swingline Lender the then unpaid principal amount of each Swingline
Loan on the
Maturity Date.
(b)
Each Lender shall maintain in accordance with its usual practice
an
account or accounts evidencing the indebtedness of the Borrower to
such Lender
resulting from each Loan made by such Lender from time to time,
including the
amounts of principal and interest payable and paid to such Lender
from time to
time under this Agreement.
(c)
The Administrative Agent shall maintain accounts in which it
will
record (i) the amount of each Loan made hereunder, the Class and
Type thereof
and, if applicable, the Interest Period applicable thereto, (ii)
the amount of
any principal or interest due and payable or to become due and
payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum
received by
the Administrative Agent hereunder from the Borrower or any
Guarantor and each
Lender's share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraphs
(b)
and (c) above shall be prima facie evidence of the existence and
amounts of the
<PAGE>
29
obligations therein recorded (absent manifest error); provided,
however, that
the failure of any Lender or the Administrative Agent to maintain
such accounts
or any error therein shall not in any manner affect the obligations
of the
Borrower to repay the Loans in accordance with their terms.
(e)
Any Lender may request that Loans made by it hereunder be evidenced
by
a promissory note. In such event, the Borrower shall execute and
deliver to such
Lender a promissory note payable to such Lender and its registered
assigns
substantially in the form of Exhibit E. Notwithstanding any other
provision of
this Agreement, in the event any Lender shall request and receive
such a
promissory note, the interests represented by such note shall at
all times
(including after any assignment of all or part of such interests
pursuant to
Section 9.04) be represented by one or more promissory notes
payable to the
payee named therein or its registered assigns.
SECTION 2.05. FEES. (a) The Borrower agrees to pay to each
Revolving Credit
Lender, through the Administrative Agent, on the last Business Day
of March,
June, September and December in each year and on each date on which
any
Revolving Credit Commitment of such Revolving Credit Lender shall
expire or be
terminated as provided herein, a commitment fee (a "COMMITMENT
FEE") equal to
0.50% per annum on the daily unused amount of the Revolving Credit
Commitment of
such Revolving Credit Lender during the preceding quarter (or other
period
commencing with the date hereof or ending with the Maturity Date or
the date on
which the Revolving Credit Commitments of such Revolving Credit
Lender shall
expire or be terminated). All Commitment Fees shall be computed on
the basis of
the actual number of days elapsed in a year of 360 days. For
purposes of
calculating Commitment Fees only, no portion of the Revolving
Credit Commitments
shall be deemed utilized as a result of outstanding Swingline
Loans.
(b)
The Borrower agrees to pay to the Administrative Agent, for its
own
account, the administrative fees set forth in the Fee Letter at the
times and in
the amounts specified therein (the "ADMINISTRATIVE AGENT
FEES").
(c)
The Borrower agrees to pay (i) to each Revolving Credit Lender,
through
the Administrative Agent, on the last Business Day of March, June,
September and
December of each year and on the date on which the Revolving Credit
Commitment
of such Revolving Credit Lender shall be terminated as provided
herein, a fee
(an "L/C PARTICIPATION FEE") calculated on such Revolving Credit
Lender's Pro
Rata Percentage of the daily aggregate L/C Exposure (excluding the
portion
thereof attributable to unreimbursed L/C Disbursements) during the
preceding
quarter (or shorter period commencing with the date hereof or
ending with the
Maturity Date or the date on which all Letters of Credit have been
cancelled or
have expired and the Revolving Credit Commitments of all Revolving
Credit
Lenders shall have been terminated) at a rate per annum equal to
the Applicable
Percentage from time to time used to determine the interest rate on
Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to
the Issuing
Bank with respect to each Letter of Credit the standard fronting,
issuance and
drawing fees specified from time to time by the Issuing Bank (the
"ISSUING BANK
FEES"). All L/C Participation Fees and Issuing Bank Fees shall be
computed on
the basis of the actual number of days elapsed in a year of 360
days.
<PAGE>
30
(d)
All Fees shall be paid on the dates due, in immediately
available
funds, to the Administrative Agent for distribution, if and as
appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid
directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable
under any
circumstances.
SECTION 2.06. INTEREST ON LOANS. (a) Subject to the provisions of
Section
2.07, the Loans comprising each ABR Borrowing, including each
Swingline Loan,
shall bear interest (computed on the basis of the actual number of
days elapsed
over a year of 365 or 366 days, as the case may be, when the
Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360
days at all
other times and calculated from and including the date of such
Borrowing to but
excluding the date of repayment thereof) at a rate per annum equal
to the
Alternate Base Rate plus the Applicable Percentage in effect from
time to time.
(b)
Subject to the provisions of Section 2.07, the Loans comprising
each
Eurodollar Borrowing shall bear interest (computed on the basis of
the actual
number of days elapsed over a year of 360 days) at a rate per annum
equal to the
Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the
Applicable Percentage in effect from time to time.
(c)
Interest on each Loan shall be payable on the Interest Payment
Dates
applicable to such Loan except as otherwise provided in this
Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each
Interest Period or
day within an Interest Period, as the case may be, shall be
determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest
error.
SECTION 2.07. DEFAULT
INTEREST. Immediately upon the occurrence of an Event
of Default (until such Event of Default has been waived or cured),
the
outstanding principal amount of all Loans shall bear interest at
the rate
otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum.
SECTION 2.08. ALTERNATE RATE OF INTEREST. In the event, and on
each
occasion, that on the day two Business Days prior to the
commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent
shall have
determined that dollar deposits in the principal amounts of the
Loans comprising
such Borrowing are not generally available in the London interbank
market, or
that the rates at which such dollar deposits are being offered will
not
adequately and fairly reflect the cost to any Lender of making or
maintaining
its Eurodollar Loan during such Interest Period, or that reasonable
means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall,
as soon as practicable thereafter, give written or fax notice of
such
determination to the Borrower and the Lenders. In the event of any
such
determination, until the Administrative Agent shall have advised
the Borrower
and the Lenders that the circumstances giving rise to such notice
no longer
exist, any request by the Borrower for a Eurodollar Borrowing
pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR
Borrowing. Each
determination by the Administrative Agent under this Section 2.08
shall be
conclusive absent manifest error.
<PAGE>
31
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless
previously terminated, the Revolving Credit Commitments and the
Swingline
Commitment shall automatically terminate on the Maturity Date. The
L/C
Commitment shall automatically terminate on the earlier to occur of
(i) the
termination of the Revolving Credit Commitments and (ii) the date
30 days prior
to the Maturity Date. Notwithstanding the foregoing, all the
Commitments shall
automatically terminate at 5:00 p.m. (New York City time) on
December 31, 2005,
if the initial Credit Event shall not have occurred by such
time.
(b)
Upon at least three Business Days' prior irrevocable written or
fax
notice to the Administrative Agent, the Borrower may at any time in
whole
permanently terminate, or from time to time in part permanently
reduce, the
Revolving Credit Commitments or the Swingline Commitment; provided,
however,
that (i) each partial reduction of Commitments shall be in an
integral multiple
of $1,000,000 and in a minimum amount of $3,000,000 and (ii) the
Total
Commitment shall not be reduced to an amount that is less than the
Aggregate
Credit Exposure at the time.
(c) Each reduction in
the Revolving Credit Commitments hereunder shall be
made ratably among the Revolving Credit Lenders in accordance with
their
respective Revolving Credit Commitments. The Borrower shall pay to
the
Administrative Agent for the account of the Revolving Credit
Lenders, on the
date of each termination or reduction, the Commitment Fees on the
amount of the
Revolving Credit Commitments so terminated or reduced accrued to
but excluding
the date of such termination or reduction.
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS. The
Borrower shall
have the right at any time upon prior irrevocable written or fax
notice (or
telephonic notice promptly confirmed by written or fax notice) to
the
Administrative Agent (a) not later than 12:00 noon (New York City
time) one
Business Day prior to conversion, to convert any Eurodollar
Borrowing into an
ABR Borrowing, (b) not later than 12:00 noon (New York City time)
three Business
Days prior to conversion or continuation, to convert any ABR
Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a
Eurodollar
Borrowing for an additional Interest Period, and (c) not later than
12:00 noon
(New York City time) three Business Days prior to conversion, to
convert the
Interest Period with respect to any Eurodollar Borrowing to another
permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the
Lenders in accordance with the respective principal amounts of the
Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and
2.02(b)
regarding the principal amount and maximum number of Borrowings of
the
relevant Type;
(iii) each conversion shall be effected by each Revolving Lender
and
the
Administrative Agent by recording for the account of such
Revolving
Lender the
<PAGE>
32
new
Revolving Loan of such Revolving Lender resulting from such
conversion
and
reducing the Revolving Loan (or portion thereof) of such
Revolving
Lender being converted by an equivalent principal amount; accrued
interest
on
any Eurodollar Loan (or portion thereof) being converted shall be
paid
by
the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the
end
of the Interest Period applicable thereto, the Borrower shall pay,
upon
demand, any amounts due to the Revolving Lenders pursuant to
Section 2.15;
(v) any portion of a Borrowing maturing or required to be repaid
in
less
than one month may not be converted into or continued as a
Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted
into
or continued as a Eurodollar Borrowing by reason of the
immediately
preceding clause shall be automatically converted at the end of
the
Interest Period in effect for such Borrowing into an ABR Borrowing;
and
(vii) after the occurrence and during the continuance of a
Default
specified in clause (b) or (c) of Article VII (without regard to
any
applicable grace period in such clause (c)), no outstanding Loan
may be
converted into, or continued as, a Eurodollar Loan.
Each
notice pursuant to this Section 2.10 shall be irrevocable and
shall
refer to this Agreement and specify (i) the identity and amount of
the Borrowing
that the Borrower requests be converted or continued, (ii) whether
such
Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of
such
conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest
Period with
respect thereto. If no Interest Period is specified in any such
notice with
respect to any conversion to or continuation as a Eurodollar
Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one
month's
duration. The Administrative Agent shall advise the Lenders of any
notice given
pursuant to this Section 2.10 and of each Lender's portion of any
converted or
continued Borrowing. If the Borrower shall not have given notice in
accordance
with this Section 2.10 to continue any Borrowing into a subsequent
Interest
Period (and shall not otherwise have given notice in accordance
with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at
the end of the
Interest Period applicable thereto (unless repaid pursuant to the
terms hereof),
automatically be continued into an ABR Borrowing.
SECTION 2.11. OPTIONAL PREPAYMENT. (a) The Borrower shall have the
right at
any time and from time to time to prepay any Borrowing, in whole or
in part,
upon at least three Business Days' prior written or fax notice (or
telephonic
notice promptly confirmed by written or fax notice) in the case of
Eurodollar
Loans, or written or fax notice (or telephone notice promptly
confirmed by
written or fax notice) at least one Business Day prior to the date
of prepayment
in the case of ABR Loans, to the
<PAGE>
33
Administrative Agent before 12:00 noon (New York City time);
provided, however,
that each partial prepayment shall be in an amount that is an
integral multiple
of $1,000,000 and not less than $3,000,000.
(b)
Each notice of prepayment shall specify the prepayment date and
the
principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing
by the amount
stated therein on the date stated therein. All prepayments under
this Section
2.11 shall be subject to Section 2.15 but otherwise without premium
or penalty.
All prepayments under this Section 2.11 (other than prepayments of
ABR Revolving
Loans that are not made in connection with the termination or
permanent
reduction of the Revolving Credit Commitments) shall be accompanied
by accrued
and unpaid interest on the principal amount to be prepaid to but
excluding the
date of payment.
SECTION 2.12. MANDATORY PREPAYMENTS. (a) In the event of any
termination of
all the Revolving Credit Commitments, the Borrower shall, on the
date of such
termination, repay or prepay all its outstanding Revolving Credit
Borrowings and
all outstanding Swingline Loans and replace or cause to be
cancelled (or make
other arrangements satisfactory to the Administrative Agent and the
Issuing Bank
with respect to) all outstanding Letters of Credit. If, after
giving effect to
any partial reduction of the Revolving Credit Commitments, the
Aggregate Credit
Exposure would exceed the Total Commitment, then the Borrower
shall, on the date
of such reduction, repay or prepay Revolving Credit Borrowings or
Swingline
Loans (or a combination thereof) and, after the Revolving Credit
Borrowings and
Swingline Loans shall have been repaid or prepaid in full, replace
or cause to
be cancelled (or make other arrangements satisfactory to the
Administrative
Agent and the Issuing Bank with respect to) Letters of Credit in an
amount
sufficient to eliminate such excess.
(b)
All prepayments of Borrowings under this Section 2.12 shall be
subject
to Section 2.15, but shall otherwise be without premium or penalty,
and shall be
accompanied by accrued and unpaid interest on the principal amount
to be prepaid
to but excluding the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a)
Notwithstanding any other provision of this Agreement, if any
Change in Law
shall impose, modify or deem applicable any reserve, special
deposit or similar
requirement against assets of, deposits with or for the account of
or credit
extended by any Lender or the Issuing Bank (except any such reserve
requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or
the Issuing Bank or the London interbank market any other condition
affecting
this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit
or participation therein, and the result of any of the foregoing
shall be to
increase the cost to such Lender or the Issuing Bank of making or
maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing
or maintaining
any Letter of Credit or purchasing or maintaining a participation
therein or to
reduce the amount of any sum received or receivable by such Lender
or the
Issuing Bank hereunder (whether of principal, interest or
otherwise) by an
amount deemed by such Lender or the Issuing Bank to be material,
then the
Borrower will pay to such Lender or
<PAGE>
34
the Issuing Bank, as the case may be, upon demand such additional
amount or
amounts as will compensate such Lender or the Issuing Bank, as the
case may be,
for such additional costs incurred or reduction suffered.
(b)
If any Lender or the Issuing Bank shall have determined that any
Change
in Law regarding capital adequacy has or would have the effect of
reducing the
rate of return on such Lender's or the Issuing Bank's capital or on
the capital
of such Lender's or the Issuing Bank's holding company, if any, as
a consequence
of this Agreement or the Loans made or participations in Letters of
Credit
purchased by such Lender pursuant hereto or the Letters of Credit
issued by the
Issuing Bank pursuant hereto to a level below that which such
Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company
could have
achieved but for such Change in Law (taking into consideration such
Lender's or
the Issuing Bank's policies and the policies of such Lender's or
the Issuing
Bank's holding company with respect to capital adequacy) by an
amount deemed by
such Lender or the Issuing Bank to be material, then from time to
time the
Borrower shall pay to such Lender or the Issuing Bank, as the case
may be, such
additional amount or amounts as will compensate such Lender or the
Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such
reduction
suffered.
(c)
A certificate of a Lender or the Issuing Bank setting forth the
amount
or amounts (and the calculations thereof in reasonable detail)
necessary to
compensate such Lender or the Issuing Bank or its holding company,
as
applicable, as specified in paragraph (a) or (b) above shall be
delivered to the
Borrower and shall be conclusive absent manifest error. The
Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such
certificate
delivered by it within 10 days after its receipt of the same.
(d)
Failure or delay on the part of any Lender or the Issuing Bank
to
demand compensation for any increased costs or reduction in amounts
received or
receivable or reduction in return on capital shall not constitute a
waiver of
such Lender's or the Issuing Bank's right to demand such
compensation; provided
that the Borrower shall not be under any obligation to compensate
any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to
increased
costs or reductions with respect to any period prior to the date
that is 120
days prior to such request if such Lender or the Issuing Bank knew
or could
reasonably have been expected to know of the circumstances giving
rise to such
increased costs or reductions and of the fact that such
circumstances would
result in a claim for increased compensation by reason of such
increased costs
or reductions; provided further that the foregoing limitation shall
not apply to
any increased costs or reductions arising out of the retroactive
application of
any Change in Law within such 120-day period. The protection of
this Section
shall be available to each Lender and the Issuing Bank regardless
of any
possible contention of the invalidity or inapplicability of the
Change in Law
that shall have occurred or been imposed.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision
of this Agreement, if any Change in Law shall make it unlawful for
any Lender to
make or maintain any Eurodollar Loan or to give effect to its
obligations as
contemplated hereby
<PAGE>
35
with respect to any Eurodollar Loan, then, by written notice to the
Borrower and
to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter
(for
the duration of such unlawfulness) be made by such Lender
hereunder
(or
be continued for additional Interest Periods) and ABR Loans will
not
thereafter (for such duration) be converted into Eurodollar
Loans,
whereupon any request for a Eurodollar Borrowing (or to convert an
ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing
for
an additional Interest Period) shall, as to such Lender only, be
deemed
a
request for an ABR Loan (or a request to continue an ABR Loan as
such for
an
additional Interest Period or to convert a Eurodollar Loan into an
ABR
Loan, as the case may be), unless such declaration shall be
subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans
made
by it be converted to ABR Loans, in which event all such
Eurodollar
Loans shall be automatically converted to ABR Loans as of the
effective
date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii)
above, all
payments and prepayments of principal that would otherwise have
been applied to
repay the Eurodollar Loans that would have been made by such Lender
or the
converted Eurodollar Loans of such Lender shall instead be applied
to repay the
ABR Loans made by such Lender in lieu of, or resulting from the
conversion of,
such Eurodollar Loans.
(b)
For purposes of this Section 2.14, a notice to the Borrower by
any
Lender shall be effective as to each Eurodollar Loan made by such
Lender, if
lawful, on the last day of the Interest Period then applicable to
such
Eurodollar Loan; in all other cases such notice shall be effective
on the date
of receipt by the Borrower.
SECTION 2.15. INDEMNITY. The Borrower shall indemnify each Lender
against
any loss (other than loss of margin) or expense that such Lender
may sustain or
incur as a consequence of (a) any event, other than a default by
such Lender in
the performance of its obligations hereunder or an assignment
(other than
pursuant to Section 2.20) by such Lender, which results in (i) such
Lender
receiving or being deemed to receive any amount on account of the
principal of
any Eurodollar Loan prior to the end of the Interest Period in
effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the
conversion of
the Interest Period with respect to any Eurodollar Loan, in each
case other than
on the last day of the Interest Period in effect therefor, or (iii)
any
Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be
made pursuant to a conversion or continuation under Section 2.10)
not being made
after notice of such Loan shall have been given by the Borrower
hereunder (any
of the events referred to in this clause (a) being called a
"BREAKAGE EVENT") or
(b) any default in the making of any payment or prepayment required
to be made
hereunder. In the case of any Breakage Event, such loss shall
include an amount
equal to the excess, as reasonably determined by such Lender, of
(i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such
Breakage
Event for the period from the date of such Breakage Event to the
last
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36
day of the Interest Period in effect (or that would have been in
effect) for
such Loan over (ii) the amount of interest likely to be realized by
such Lender
in redeploying the funds released or not utilized by reason of such
Breakage
Event for such period. A certificate of any Lender setting forth
any amount or
amounts which such Lender is entitled to receive pursuant to this
Section 2.15
shall be delivered to the Borrower and shall be conclusive absent
manifest
error.
SECTION 2.16. PRO RATA TREATMENT. Except as provided below in this
Section
2.16 with respect to Swingline Loans and as required under Section
2.14, each
Borrowing, each payment or prepayment of principal of any
Borrowing, each
payment of interest on the Loans, each payment of the Commitment
Fees, each
reduction of the Revolving Credit Commitments, each conversion of
any Borrowing
to or continuation of any Borrowing as a Borrowing of any Type and
the
requirement to acquire participation interests in Swingline Loans
and L/C
Disbursements, shall be allocated pro rata among the Revolving
Credit Lenders in
accordance with their respective Revolving Credit Commitments (or,
if such
Revolving Credit Commitments shall have expired or been terminated,
in
accordance with the respective principal amounts of their
outstanding Revolving
Loans). For purposes of determining the available Revolving Credit
Commitments
of the Revolving Credit Lenders at any time, each outstanding
Swingline Loan
shall be deemed to have utilized the Revolving Credit Commitments
of the
Revolving Credit Lenders (including those Revolving Credit Lenders
which shall
not have made Swingline Loans) pro rata in accordance with such
respective
Revolving Credit Commitments. Each Revolving Credit Lender agrees
that in
computing such Revolving Credit Lender's portion of any Borrowing
to be made
hereunder, the Administrative Agent may, in its discretion, round
each Revolving
Credit Lender's percentage of such Borrowing to the next higher or
lower whole
dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if it
shall,
through the exercise of a right of banker's lien, setoff or
counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured
claim under
Section 506 of Title 11 of the United States Code or other security
or interest
arising from, or in lieu of, such secured claim, received by such
Lender under
any applicable bankruptcy, insolvency or other similar law or
otherwise, or by
any other means, obtain payment (voluntary or involuntary) in
respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid
principal
portion of its Loans and participations in L/C Disbursements shall
be
proportionately less than the unpaid principal portion of the Loans
and
participations in L/C Disbursements of any other Lender, it shall
be deemed
simultaneously to have purchased from such other Lender at face
value, and shall
promptly pay to such other Lender the purchase price for, a
participation in the
Loans and L/C Exposure of such other Lender, so that the aggregate
unpaid
principal amount of the Loans and L/C Exposure and participations
in Loans and
L/C Exposure held by each Lender shall be in the same proportion to
the
aggregate unpaid principal amount of all Loans and L/C Exposure
then outstanding
as the principal amount of its Loans and L/C Exposure prior to such
exercise of
banker's lien, setoff or counterclaim or other event was to the
principal amount
of all Loans and L/C Exposure outstanding prior to such exercise of
banker's
lien, setoff or counterclaim or other event; provided, however,
that if any such
purchase or purchases or adjustments shall be made pursuant to this
Section 2.17
and the payment
<PAGE>
37
giving rise thereto shall thereafter be recovered, such purchase or
purchases or
adjustments shall be rescinded to the extent of such recovery and
the purchase
price or prices or adjustment restored without interest. The
Borrower and
Holdings expressly consent to the foregoing arrangements and agree
that any
Lender holding a participation in a Loan or L/C Disbursement deemed
to have been
so purchased may exercise any and all rights of banker's lien,
setoff or
counterclaim with respect to any and all moneys owing by the
Borrower and
Holdings to such Lender by reason thereof as fully as if such
Lender had made a
Loan directly to the Borrower in the amount of such
participation.
SECTION 2.18. PAYMENTS. (a) The Borrower shall make each payment
(including
principal of or interest on any Borrowing or any L/C Disbursement
or any Fees or
other amounts) hereunder and under any other Loan Document not
later than 2:00
p.m. (New York City time) on the date when due in immediately
available dollars,
without setoff, defense or counterclaim. Each such payment (other
than (i)
Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii)
principal of and interest on Swingline Loans, which shall be paid
directly to
the Swingline Lender except as otherwise provided in Section
2.21(e)) shall be
made to the Administrative Agent at its offices at Eleven Madison
Avenue, New
York, NY 10010. The Administrative Agent shall promptly distribute
to each
Lender any payments received by the Administrative Agent on behalf
of such
Lender.
(b)
Unless the Administrative Agent shall have received notice from
the
Borrower prior to the date on which any payment is due to the
Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder
that the
Borrower will not make such payment, the Administrative Agent may
assume that
the Borrower has made such payment on such date in accordance
herewith and may,
in reliance upon such assumption, distribute to the Lenders or the
Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower
does not in
fact make such payment, then each of the Lenders or the Issuing
Bank, as the
case may be, severally agrees to repay the Administrative Agent
forthwith on
demand the amount so distributed to such Lender or the Issuing
Bank, in
immediately available funds with interest thereon, for each day
from and
including the date such amount is distributed to it but excluding
the date of
payment to the Administrative Agent, at the Federal Funds Rate.
(c)
Except as otherwise expressly provided herein, whenever any
payment
(including principal of or interest on any Borrowing or any Fees or
other
amounts) hereunder or under any other Loan Document shall become
due, or
otherwise would occur, on a day that is not a Business Day, such
payment may be
made on the next succeeding Business Day, and such extension of
time shall in
such case be included in the computation of interest or Fees, if
applicable.
SECTION 2.19. TAXES. (a) Any and all payments by or on account of
any
obligation of the Borrower or any other Loan Party hereunder or
under any other
Loan Document shall be made free and clear of and without deduction
for any
Indemnified Taxes or Other Taxes; provided that, if the Borrower or
any other
Loan Party shall be required to deduct any Indemnified Taxes or
Other Taxes from
such payments, then (i) the sum payable shall be increased as
necessary so that
after making all required
<PAGE>
38
deductions (including deductions applicable to additional sums
payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as
the case may
be) receives an amount equal to the sum it would have received had
no such
deductions been made, (ii) the Borrower or such Loan Party shall
make such
deductions and (iii) the Borrower or such Loan Party shall pay the
full amount
deducted to the relevant Governmental Authority in accordance with
applicable
law.
(b)
In addition, the Borrower shall pay any Other Taxes to the
relevant
Governmental Authority in accordance with applicable law.
(c)
The Borrower shall indemnify the Administrative Agent, each Lender
and
the Issuing Bank, within 10 days after written demand therefor, for
the full
amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with
respect to any
payment by or on account of any obligation of the Borrower or any
other Loan
Party hereunder or under any other Loan Document (including
Indemnified Taxes or
Other Taxes imposed or asserted
