Exhibit 10.4
EXECUTION COPY
--------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of
JULY 1 2005
among
eFUNDS CORPORATION
as the Borrower
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
and
BANK OF AMERICA, N.A. and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
----------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................... 1
SECTION 1.02. Classification of Loans and Borrowings.......................... 22
SECTION 1.03. Terms Generally................................................. 22
SECTION 1.04. Accounting Terms; GAAP.......................................... 22
ARTICLE II
The Credits
SECTION 2.01. Commitments..................................................... 22
SECTION 2.02. Loans and Borrowings............................................ 23
SECTION 2.03. Requests for Revolving Borrowings............................... 23
SECTION 2.04. Intentionally Omitted........................................... 24
SECTION 2.05. Swingline Loans................................................. 24
SECTION 2.06. Letters of Credit............................................... 26
SECTION 2.07. Funding of Borrowings........................................... 30
SECTION 2.08. Interest Elections.............................................. 30
SECTION 2.09. Termination and Reduction of Commitments........................ 32
SECTION 2.10. Repayment of Loans; Evidence of Debt............................ 32
SECTION 2.11. Prepayment of Loans............................................. 33
SECTION 2.12. Fees............................................................ 33
SECTION 2.13. Interest........................................................ 34
SECTION 2.14. Alternate Rate of Interest...................................... 35
SECTION 2.15. Increased Costs................................................. 36
SECTION 2.16. Break Funding Payments.......................................... 37
SECTION 2.17. Taxes........................................................... 37
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..... 38
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................. 40
SECTION 2.20. Increase of Commitments......................................... 41
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................................ 42
SECTION 3.02. Authorization; Enforceability................................... 42
SECTION 3.03. Governmental Approvals; No Conflicts............................ 43
i
SECTION 3.04. Financial Condition; No Material Adverse Effect................. 43
SECTION 3.05. Properties and Insurance........................................ 43
SECTION 3.06. Litigation, Contingent Obligations, Labor and Environmental
Matters......................................................... 43
SECTION 3.07. Compliance with Laws and Agreements............................. 44
SECTION 3.08. Investment and Holding Company Status........................... 44
SECTION 3.09. Taxes........................................................... 44
SECTION 3.10. ERISA........................................................... 44
SECTION 3.11. Disclosure...................................................... 44
SECTION 3.12. No Default...................................................... 45
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.................................................. 45
SECTION 4.02. Each Credit Event............................................... 48
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information...................... 48
SECTION 5.02. Notices of Material Events...................................... 50
SECTION 5.03. Existence; Conduct of Business.................................. 50
SECTION 5.04. Payment of Obligations.......................................... 50
SECTION 5.05. Maintenance of Properties; Insurance............................ 50
SECTION 5.06. Books and Records; Inspection Rights............................ 50
SECTION 5.07. Compliance with Laws............................................ 50
SECTION 5.08. Use of Proceeds................................................. 51
SECTION 5.09. Subsidiary Guaranty............................................. 51
SECTION 5.10. Pledge Agreements............................................... 51
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.................................................... 52
SECTION 6.02. Liens........................................................... 52
SECTION 6.03. Mergers; Sales of Assets and other Fundamental Changes.......... 53
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions....... 54
SECTION 6.05. Swap Agreements................................................. 55
SECTION 6.06. Restricted Payments............................................. 55
SECTION 6.07. Transactions with Affiliates.................................... 55
SECTION 6.08. Restrictive Agreements.......................................... 56
SECTION 6.09. Financial Covenants............................................. 56
ii
SECTION 6.10. Sale of Accounts................................................ 57
SECTION 6.11. Subordinated Indebtedness and Amendments to Subordinated
Note Documents.................................................. 57
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices......................................................... 64
SECTION 9.02. Waivers; Amendments............................................. 65
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................. 66
SECTION 9.04. Successors and Assigns.......................................... 67
SECTION 9.05. Survival........................................................ 70
SECTION 9.06. Counterparts; Integration; Effectiveness........................ 70
SECTION 9.07. Severability.................................................... 71
SECTION 9.08. Right of Setoff................................................. 71
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process...... 71
SECTION 9.10. WAIVER OF JURY TRIAL............................................ 72
SECTION 9.11. Headings........................................................ 72
SECTION 9.12. Confidentiality................................................. 72
SECTION 9.13. USA PATRIOT Act................................................. 73
iii
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.01 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Permitted Investments
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Commitment and Acceptance
Exhibit D -- Form of Subsidiary Guaranty
Exhibit E -- Form of Written Money Transfer Instruction
Exhibit F -- List of Closing Documents
Exhibit G -- Form of Promissory Note
iv
CREDIT AGREEMENT dated as of July 1 2005, among eFUNDS CORPORATION,
the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent and
Collateral Agent and BANK OF AMERICA, N.A. and ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Co-Syndication Agents.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms 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.
"Acquired Entity or Business" means any Person, business, property or
asset that was the subject of an Acquisition during any period and which was not
subsequently sold or otherwise disposed of by the Borrower or a Subsidiary
during such period.
"Acquisition" means any acquisition (whether by purchase, merger,
consolidation or otherwise) or series of related acquisitions by the Borrower or
any Subsidiary of all or substantially all of the assets of, or all or a
majority of the Equity Interests in, a Person or division or line of business of
a Person.
"Acquisition Consideration" means the sum of all consideration paid or
otherwise delivered or deliverable in connection with an Acquisition, including
any Contingent Payments, Indebtedness assumed or issued in connection with, or
resulting from, such Acquisition and the fair market value of any non-cash
consideration issued in connection with any Acquisition.
"Adjusted Consolidated EBITDA" means Consolidated Net Income plus, to
the extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes accrued, (iii)
depreciation, (iv) amortization, (v) extraordinary or non-recurring non-cash
losses incurred other than in the ordinary course of business and in an amount
not exceeding $2,000,000 in any period of four consecutive fiscal quarters, (vi)
non-cash charges solely with respect to the impairment of intangible assets
resulting from the discontinuation of use of the tradenames of the Borrower, and
(vii) non-cash charges arising from compensation expense as a result of the
adoption of the proposed amendment to Financial Accounting Standards Board
Statement 123, "Share Based Payments," which would require certain stock based
compensation to be recorded as expense within the Borrower's consolidated
statement of operations minus, (a) to the extent included in Consolidated Net
Income, extraordinary or non-recurring non-cash gains realized other than in the
ordinary course of business and (b) the amount of any subsequent cash payments
in respect of any non-cash charges described in the preceding clause (vii), all
calculated for the Borrower and its Subsidiaries in accordance with GAAP on a
consolidated basis; provided, that, there shall
be included (to the extent not already included) in determining Adjusted
Consolidated EBITDA for any period ending after the Effective Date the following
items attributable to any Significant Acquisition consummated during such
period: (a) the net income (or loss) of the related Acquired Entity or Business,
(b) the interest expense (including without limitation interest expense under
Capital Lease Obligations) that is treated as interest in accordance with GAAP
of such Acquired Entity or Business, (c) expense of such Acquired Entity or
Business for taxes accrued during such period, (d) depreciation during such
period, (e) amortization during such period, (f) extraordinary or non-recurring
non-cash losses incurred other than in the ordinary course of business and in an
amount not exceeding, when aggregated with the extraordinary or non-recurring
non-cash losses described in clause (v) above, $250,000 in any period of four
consecutive fiscal quarters minus extraordinary or non-recurring non-cash gains
realized other than in the ordinary course of business, in each case on a pro
forma basis reasonably acceptable to the Administrative Agent but without giving
effect to any projected synergies and based on the actual net income (or loss),
interest expense, tax expense, depreciation expense, non-cash losses and
non-cash gains of such Acquired Entity or Business for the entire period
(including the portion thereof occurring prior to the relevant Acquisition).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, 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.
"Agents" means the Administrative Agent and the Collateral Agent.
"Aggregate Commitment" is defined in Section 2.20(a).
"Alternate Base Rate" means, 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%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
2
"Applicable Pledge Percentage" means 100%, but 65% in the case of a
pledge of Equity Interests in a Foreign Subsidiary to the extent a 100% pledge
would cause a Deemed Dividend Problem.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurodollar Spread" or "Commitment Fee", as the
case may be, based upon the Leverage Ratio as reflected in the then most
recently delivered Financials:
Leverage Commitment ABR Eurodollar
Pricing Level: Ratio: Fee: Spread: Spread:
-------------- ---------------- ---------- ------- ----------
Level I < or = 0.75x 0.150% 0% 0.625%
Level II > 0.75x but 0.175% 0% 0.750%
< or= 1.25x
Level III > 1.25x but 0.200% 0% 0.875%
< or = 1.75x
Level IV > 1.75 but 0.250% 0% 1.00%
< or = 2.25
Level V > 2.25x 0.300% 0% 1.375%
For purposes of the foregoing,
(i) if at any time the Borrower fails to deliver the Financials
required under Section 5.01(a) or 5.01(b) on or before the date such
Financials are due, Pricing Level IV shall be deemed applicable for
the period commencing five (5) Business Days after such required date
of delivery and ending on the date which is five (5) Business Days
after such Financials are actually delivered, after which the Pricing
Level shall be determined in accordance with the table above as
applicable;
(ii) adjustments, if any, to the Pricing Level then in effect
shall be effective five (5) Business Days after the Administrative
Agent has received the applicable Financials (it being understood and
agreed that each change in Pricing Level shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change); and
(iii) each determination of the Applicable Rate made by the
Administrative Agent in accordance with the foregoing shall, if
reasonably determined, be conclusive and binding on the Borrower and
each Lender.
Notwithstanding the foregoing, Pricing Level III shall be deemed
to be applicable until the Administrative Agent's receipt of the
applicable Financials for the Borrower' fiscal quarter ending on or
about September 30, 2005 and
3
adjustments to the Pricing Level then in effect shall thereafter be
effected in accordance with the preceding provisions.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means eFunds Corporation, a Delaware corporation.
"Borrowing" means (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" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Chicago, Illinois are authorized or required by
law to remain closed; provided 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" means, without duplication, any expenditures
for any purchase or other acquisition of any asset which would be classified as
a fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP.
"Capital Lease Obligations" of any Person means 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.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the
4
Borrower; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (i) nominated
by the board of directors of the Borrower nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of the Borrower
by any Person or group.
"Change in Law" means (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 2.15(b), by any lending office of such Lender
or by such Lender's or the 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.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all pledged Equity Interests in or upon which a
security interest or Lien is from time to time granted to the Collateral Agent,
for the benefit of the Holders of Secured Obligations, whether under the Pledge
Agreements, under any of the other Collateral Documents or under any of the
other Loan Documents.
"Collateral Agent" means JPMorgan Chase Bank, N.A. in its capacity as
Collateral Agent for the Holders of Secured Obligations and any successor
Collateral Agent appointed pursuant to the terms of the Intercreditor Agreement.
"Collateral Documents" means all agreements, instruments and documents
executed in connection with this Agreement pursuant to which the Collateral
Agent is granted a security interest in Collateral, including, without
limitation, the Pledge Agreements and all other security agreements, loan
agreements, notes, guarantees, subordination agreements, pledges, powers of
attorney, consents, assignments, contracts, fee letters, notices, leases,
financing statements and all other written matter whether heretofore, now, or
hereafter executed by or on behalf of the Borrower or any of its Subsidiaries
and delivered to the Collateral Agent or any of the Lenders, together with all
agreements and documents referred to therein or contemplated thereby.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $150,000,000.
5
"Commitment Increase Notice" is defined in Section 2.20(a).
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Borrower and its Subsidiaries calculated
on a consolidated basis for such period.
"Consolidated EBITDA" means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes accrued, (iii)
depreciation, (iv) amortization, (v) extraordinary or non-recurring non-cash
losses incurred other than in the ordinary course of business and in an amount
not exceeding $2,000,000 in any period of four consecutive fiscal quarters, (vi)
non-cash charges solely with respect to the impairment of intangible assets
resulting from the discontinuation of use of the tradenames of the Borrower, and
(vii) non-cash charges arising from compensation expense as a result of the
adoption of the proposed amendment to Financial Accounting Standards Board
Statement 123, "Share Based Payments," which would require certain stock based
compensation to be recorded as expense within the Borrower's consolidated
statement of operations minus, (a) to the extent included in Consolidated Net
Income, extraordinary or non-recurring non-cash gains realized other than in the
ordinary course of business and (b) the amount of any subsequent cash payments
in respect of any non-cash charges described in the preceding clause (vii), all
calculated for the Borrower and its Subsidiaries in accordance with GAAP on a
consolidated basis.
"Consolidated EBITDAR" means, for any period, Consolidated EBITDA
plus, to the extent deducted from revenues in determining Consolidated EBITDA,
Consolidated Rent Expense, minus, to the extent not subtracted in determining
Consolidated EBITDA, the aggregate amount of all Restricted Payments (other than
Excluded Restricted Payments) by the Borrower or (other than with respect to
Restricted Payments ultimately made to a Loan Party) any Subsidiary during such
period, all calculated for the Borrower and its Subsidiaries in accordance with
GAAP on a consolidated basis.
"Consolidated Fixed Charges" means, with reference to any period and
without duplication, all payments by the Borrower and its Subsidiaries during
such period in respect of the sum of (i) principal required to be repaid of
Indebtedness with a tenor at its issuance date of 12 months or longer (but
excluding any voluntary prepayments on such Indebtedness), (ii) Capital Lease
Obligations, (iii) Consolidated Interest Expense, (iv) expense for taxes accrued
and (v) Consolidated Rent Expense.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense (including without limitation interest expense under
Capital Lease Obligations that is treated as interest in accordance with GAAP)
of the Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated in accordance
with GAAP on a consolidated basis (without duplication) for such period.
6
"Consolidated Rent Expense" means, with reference to any period, all
payments under Operating Leases to the extent deducted in computing Consolidated
Net Income, net of any related income from subleases, in each case calculated in
accordance with GAAP for the Borrower and its Subsidiaries on a consolidated
basis for such period.
"Consolidated Total Assets" means, as of the date of any determination
thereof, total assets of the Borrower and its Subsidiaries calculated in
accordance with GAAP on a consolidated basis as of such date.
"Consolidated Total Indebtedness" means at any time the aggregate
Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time.
"Contingent Payments" means any earnouts, holdbacks or other
contingent payments that may become payable to the sellers following the
consummation of an Acquisition that are not evidenced by bonds, debentures,
notes or similar instruments.
"Control" means 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 ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Co-Syndication Agent" means each of Bank of America, N.A. and ▇▇▇▇▇
Fargo Bank, National Association in its capacity as co-syndication agent for the
credit facility evidenced by this Agreement.
"Deemed Dividend Problem" means, with respect to any Foreign
Subsidiary, such Foreign Subsidiary's accumulated and undistributed earnings and
profits being deemed to be repatriated to the Borrower or the applicable parent
Domestic Subsidiary under Section 956 of the Code and the effect of such
repatriation causing materially adverse tax consequences to the Borrower or such
parent Domestic Subsidiary, in each case as determined by the Borrower in its
commercially reasonable judgment acting in good faith and in consultation with
its legal and tax advisors.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means a Subsidiary organized under the laws of a
jurisdiction located in the United States of America.
"EBITDA" of any Person means such Person's Net Income plus, to the
extent deducted from revenues in determining Net Income, such Person's (i)
Interest Expense, (ii) expense for taxes accrued, (iii) depreciation, (iv)
amortization, (v) extraordinary or non-recurring non-cash losses incurred other
than in the ordinary course of business minus, to the extent included in Net
Income, extraordinary or non-recurring non-cash gains realized other than in the
7
ordinary course of business, all calculated for such Person and its subsidiaries
in accordance with GAAP on a consolidated basis.
"Effective Commitment Amount" is defined in Section 2.20(a).
"Effective Date" means July 1 2005.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means 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" means (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;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower
8
or any ERISA Affiliate 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.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to such Loan, or the Loans comprising such Borrowing, bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Restricted Payments" means the $100,000,000 of Restricted
Payments made by the Borrower pursuant to the stock repurchase plan announced by
the Borrower on February 23, 2005.
"Excluded Taxes" means, 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 in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), 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 2.17(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 2.17(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain fee letter dated as of June 8, 2005 by
and among the Borrower, ▇.▇. ▇▇▇▇▇▇ Securities Inc. as arranger and the
Administrative Agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
9
"Financials" means the annual or quarterly financial statements, and
accompanying certificates and other documents, of the Borrower required to be
delivered pursuant to Section 5.01(a) or 5.01(b).
"First-Tier Foreign Subsidiary" means each Foreign Subsidiary with
respect to which any one or more of the Borrower and its Domestic Subsidiaries
directly owns or controls more than 50% of such Foreign Subsidiary's Equity
Interests.
"Foreign Lender" means 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 Pledge Event" means any time when, as of the most recent
fiscal quarter of the Borrower for which financial statements have been
delivered pursuant to Section 5.01, (i) the aggregate amount of EBITDA of the
Loan Parties and Pledged Subsidiaries and Subsidiaries of the Pledged
Subsidiaries is less than seventy-five percent (75%) of the Borrower's
Consolidated EBITDA for the period of four consecutive fiscal quarters ending
with the end of such quarter or (ii) the aggregate amount of consolidated total
assets of the Loan Parties and Pledged Subsidiaries and Subsidiaries of the
Pledged Subsidiaries is less than seventy-five percent (75%) of the Borrower's
Consolidated Total Assets as of such date.
"Foreign Subsidiary" means any Subsidiary which is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor 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 the guarantor, 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 thereof, (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 thereof, (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 or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business,
assignments of real property leases with recourse to such Person to the extent
such
10
assignments are entered into in the ordinary course of business consistent with
past practice, or any obligation with respect to working capital reserves
established in the ordinary course of business consistent with past practice and
related to settlement advances made to, or on behalf of, processing customers.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holders of Obligations" means the holders of the Obligations from
time to time and shall include (i) each Lender and the Issuing Bank in respect
of its Loans and LC Exposure, (ii) the Administrative Agent and the Lenders in
respect of all other present and future obligations and liabilities of the
Borrower and each Subsidiary of every type and description arising under or in
connection with the Credit Agreement or any other Loan Document, (iii) each
Lender and affiliate of such Lender in respect of Swap Agreements entered into
with such Person by the Borrower or any Subsidiary, (iv) each indemnified party
under Section 9.03 in respect of the obligations and liabilities of the Borrower
to such Person hereunder and under the other Loan Documents, and (v) their
respective successors and (in the case of a Lender, permitted) transferees and
assigns.
"Holders of Secured Obligations" means the Holders of Obligations and
the Holders of Term Facility Obligations.
"Holders of Term Facility Obligations" means the holders of the Term
Facility Obligations from time to time and shall include their respective
successors, transferees and assigns.
"Hostile Acquisition" means (a) the acquisition of the Equity
Interests of a Person through a tender offer or similar solicitation of the
owners of such Equity Interests which has not been approved (prior to such
acquisition) by the board of directors (or any other applicable governing body)
of such Person or by similar action if such Person is not a corporation and (b)
any such acquisition as to which such approval has been withdrawn.
"Indebtedness" of any Person means, 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 acquired by such Person if required to be classified as a liability in
accordance with GAAP, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding (i) current accounts
payable and other accrued liabilities incurred in the ordinary course of
business or incurred in connection with Permitted Acquisitions and (ii)
Contingent Payments associated with Permitted Acquisitions to the extent such
Contingent Payments are not classified as liabilities in accordance with GAAP)
if required to be classified as a liability in accordance with GAAP, (f) all
Indebtedness of others secured by (or for which the holder of
11
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
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) all Net ▇▇▇▇-to-Market Exposure of such Person. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including 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 ownership interest in or other
relationship with such entity. The Indebtedness of any Person shall not include
any liability arising under or related to any employee, officer or director
compensation plan of such Person, severance or income continuation amounts owing
to former officers, employees or directors or any surety bonds, performance
guarantees, operating leases or outsourcing and maintenance obligations.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated June 2005 relating to the Borrower and the Transactions.
"Intercreditor Agreement" means that certain Intercreditor Agreement
entered into by the Administrative Agent, the Collateral Agent and the Holders
of Term Facility Obligations in connection with this Agreement and the Term
Facility Documents, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Expense" means, with reference to any period, the interest
expense (including without limitation interest expense under Capital Lease
Obligations that is treated as interest in accordance with GAAP) of such Person
and its subsidiaries calculated on a consolidated basis for such period.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (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 prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six (or with
the consent of each Lender, twelve) months thereafter, as the Borrower may
elect; provided, that (i) 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, in the case of a Eurodollar Borrowing only, such next
succeeding Business
12
Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Lender Increase Notice" is defined in Section 2.20(a).
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" is defined in Section 6.9.01.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London
13
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of 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, other than
securities which are Permitted Investments, any purchase option, call or similar
right of a third party with respect to such securities. The interests of the
sellers of any Acquired Entity or Business pursuant to a Permitted Acquisition
in any escrow or similar depository account into which any Contingent Payments
may be deposited in connection with the Acquisition of such Entity or Business
shall not constitute a "Lien."
"Limited Equity Acquisition" means any acquisition (whether by
purchase, merger, consolidation or otherwise) or series of related acquisitions
by the Borrower or any Subsidiary of 50% or less of the Equity Interests in a
Person.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Loan Documents" means this Agreement, any promissory notes executed
and delivered pursuant to Section 2.10(e), the Subsidiary Guaranty, the
Collateral Documents, the Intercreditor Agreement and any and all other
instruments and documents executed and delivered in connection with any of the
foregoing.
"Loan Parties" means, collectively, the Borrower and the Subsidiary
Guarantors.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement and the
other Loan Documents.
"Maturity Date" means July 1 2010.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income" means, with reference to any period for any Person, the
net income (or loss) of such Person and its subsidiaries calculated on a
consolidated basis for such period.
"Net ▇▇▇▇-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Swap Agreements. "Unrealized losses" means
the fair market value of the cost to such Person of replacing the transaction
under any Swap Agreement as of the date of
14
determination (assuming such transaction were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such transaction as of the date of determination (assuming such
transaction were to be terminated as of that date).
"Obligations" means all Loans, LC Disbursements, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower or any
Subsidiary Guarantor to the Administrative Agent, any Lender, the Issuing Bank,
any Affiliate of the Administrative Agent or any Lender, the Issuing Bank, or
any indemnified Person hereunder, of any kind or nature, present or future,
arising under this Agreement, the Subsidiary Guaranty, any Collateral Document,
any Swap Agreement (to the extent such Swap Agreement is with a Lender or its
Affiliate) or any other Loan Document, whether or not evidenced by any note,
guaranty or other instrument, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Borrower or any Subsidiary
Guarantor under this Agreement or any other Loan Document.
"Operating Lease" of a Person means any lease of property (other than
a capital lease under GAAP) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" means 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 hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Percentage" is defined in Section 2.20(b).
"Permitted Acquisition" means (1) any Acquisition consented to in
writing by the Required Lenders, (2) the WildCard Acquisition and (3) any other
Acquisition (but excluding in any event a Hostile Acquisition) if, at the time
of and immediately after giving effect thereto, (a) no Default has occurred and
is continuing or would arise after giving effect thereto, (b) the principal
business of such Person shall be in the same line of business as, or otherwise
reasonably related to, a business in which the Borrower or a Subsidiary is
engaged on the Effective Date, (c) each Subsidiary formed for the purpose of or
resulting from such Acquisition shall, to the extent required by Section 5.09 be
a Subsidiary Guarantor and to the extent required by Section 5.10 be a Pledged
Subsidiary and all of the Equity Interest of such Subsidiary Guarantor or
Pledged Subsidiary shall be owned directly by the Borrower or, to the extent so
required by such definition, a Subsidiary Guarantor or Pledged Subsidiary, and
all actions required to be taken with respect to such acquired or newly formed
Subsidiary under Sections
15
5.09 and 5.10 shall have been taken, (d) for Significant Acquisitions, the
Borrower and the Subsidiaries are in compliance, on a pro forma basis acceptable
to the Administrative Agent after giving effect to such Acquisition (but without
giving effect to any synergies), with the covenants contained in Sections 5.09,
5.10 and 6.09 (provided that, with respect to determining pro forma compliance
with the financial covenants contained in Section 6.09, Adjusted Consolidated
EBITDA shall be substituted in lieu of Consolidated EBITDA for computing the
relevant calculations) recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available, as
if such Acquisition (and any related incurrence or repayment of Indebtedness,
with any new Indebtedness being deemed to be amortized over the applicable
testing period in accordance with its terms) had occurred on the first day of
each relevant period for testing such compliance, (e) no material challenge to
such Acquisition (excluding the exercise of appraisal rights) shall be pending
by any shareholder or director of the seller or Person to be acquired, (f) all
material governmental and corporate approvals required in connection therewith
shall have been obtained, (g) the sum of all Acquisition Consideration paid or
otherwise delivered in connection with any such Acquisition and all such
Acquisitions shall not exceed, on an aggregate basis during the term of this
Agreement, the Permitted Acquisition Amount and (h) the Borrower has delivered
to the Administrative Agent an officers' certificate certifying as to clauses
(a), (b), (c), (d) (if applicable), (e), (f) and (g) above, together with all
relevant financial information for the Person or assets to be acquired and
reasonably detailed calculations demonstrating satisfaction of the requirement
set forth in clause (d) above.
"Permitted Acquisition Amount" means (a) $200,000,000 of Acquisition
Consideration for all Permitted Acquisitions described in clause (3) of the
definition of "Permitted Acquisitions" during any period of twelve consecutive
calendar months less the amount of all Limited Equity Acquisitions made during
such period and (b) $500,000,000 of Acquisition Consideration for all Permitted
Acquisitions (as so described) during the term of this Agreement less the amount
of all Limited Equity Acquisitions made during the term of this Agreement.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
16
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
and
(g) any interest or title of a lessor under any operating lease
entered into in the ordinary course of business;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(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) obligations issued by any Federal agency of the United States of
America, in each case maturing within one year from the date of acquisition
thereof;
(c) 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 described on the Permitted Investments Schedule;
(d) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(e) 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 described in clause
(d) above;
(f) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company
Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and (iii) have
portfolio assets of at least $5,000,000,000;
(g) municipal investments and direct obligations of any State of the
United States of America, in each case with a rating of AAA or higher by
S&P or Aaa or higher by ▇▇▇▇▇'▇ and a maximum maturity of 12 months (for
securities where the interest rate is
17
adjusted periodically (e.g. floating rate securities), the reset date will
be used to determine the maturity date);
(h) investments in auction rate securities with a rating of AAA or
higher by S&P or Aaa or higher by ▇▇▇▇▇'▇ and a maximum maturity of one
year, for which the reset date will be used to determine the maturity date;
and
(i) to the extent not previously described in this definition,
investments described on the Permitted Investments Schedule.
"Permitted Investments Schedule" means the schedule attached as
Schedule 6.04 hereto, as the same may be modified from time to time in writing
by the Borrower and agreed to in writing by the Administrative Agent.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means 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 302 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.
"Pledge Agreements" means the pledge agreements, share mortgages,
charges and comparable instruments and documents from time to time executed
pursuant to the terms of Section 5.10 in favor of the Collateral Agent for the
benefit of the Holders of Secured Obligations as amended, restated, supplemented
or otherwise modified from time to time.
"Pledged Subsidiary" means each First-Tier Foreign Subsidiary all or a
portion of the Equity Interests of which has been pledged pursuant to a Pledge
Agreement in accordance with Section 5.10.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Proposed New Lender" is defined in Section 2.20(a).
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
18
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
the Borrower or any Subsidiary to any Person which is not a Subsidiary or the
Borrower, 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 such
Equity Interests in the Borrower or any option, warrant or other right to
acquire any such Equity Interests in the Borrower, or any loan, advance or
capital contribution made pursuant to Section 6.04(j).
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"S&P" means Standard & Poor's.
"Sale and Leaseback Transaction" means any sale or other transfer of
assets or property by any Person with the intent to lease any such asset or
property as lessee.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of the
Securities and Exchange Commission.
"Selling Lender" is defined in Section 2.20(b).
"Significant Acquisition" means any Acquisition with respect to which
the Acquisition Consideration exceeds $50,000,000.
"Significant Indebtedness" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $5,000,000. For purposes of determining
Significant Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
"Statutory Reserve Rate" means 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 to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements 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 or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
19
"Subordinated Indebtedness" of the Borrower or Subsidiary means any
Indebtedness of such Person the payment of which is subordinated to payment of
the obligations under the Loan Documents to the written satisfaction of, and the
terms and conditions of which are otherwise satisfactory to, the Required
Lenders.
"Subordinated Indebtedness Documents" means any document, agreement or
instrument evidencing any Subordinated Indebtedness or entered into in
connection with any Subordinated Indebtedness.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any Person the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other Person (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, in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such
date, 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" means any subsidiary of the Borrower.
"Subsidiary Guarantor" means each Domestic Subsidiary (i) the EBITDA
of which, as of the most recent fiscal quarter of the Borrower, for the period
of four consecutive fiscal quarters then ended, for which financial statements
have been delivered pursuant to Section 5.01 was greater than five percent (5%)
of the Borrower's Consolidated EBITDA for such period or (ii) the consolidated
total assets of which as of the end of such fiscal quarter were greater than
five percent (5%) of the Borrower's Consolidated Total Assets as of such date;
provided that, if at any time the aggregate amount of the EBITDA or consolidated
total assets of all Domestic Subsidiaries that are not Subsidiary Guarantors
exceeds ten percent (10%) of the Borrower's Consolidated EBITDA for any such
period or ten percent (10%) of the Borrower's Consolidated Total Assets as of
the end of any such fiscal quarter, the Borrower (or, in the event the Borrower
has failed to do so within ten days, the Administrative Agent) shall designate
sufficient Domestic Subsidiaries as "Subsidiary Guarantors" to eliminate such
excess, and such designated Subsidiaries shall for all purposes of this
Agreement constitute Subsidiary Guarantors. The Subsidiary Guarantors on the
Effective Date are identified as such in Schedule 3.01 hereto.
"Subsidiary Guaranty" means that certain Guaranty (and any and all
supplements thereto) executed by each Subsidiary Guarantor, in substantially the
form of Exhibit D attached hereto, and, in the case of any guaranty by a Foreign
Subsidiary, any other guaranty agreements as are reasonably requested by the
Administrative Agent and its counsel, in each case as amended, restated,
supplemented or otherwise modified from time to time.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value
20
or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Target" means WildCard Systems, Inc., a Florida corporation.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Facility" means (i) the $100,000,000 term loan facility
evidenced on the Effective Date by that certain Loan Agreement dated as of the
Effective Date by and among the Borrower, certain lenders party thereto and
JPMorgan Chase Bank, N.A., as administrative agent and (ii) any subsequent debt
facility incurred by the Borrower in replacement of such term loan facility
pursuant to a private placement transaction approved by the Administrative
Agent.
"Term Facility Documents" means the instruments and documents
evidencing the Term Facility.
"Term Facility Obligations" means the Indebtedness and other
obligations of the Borrower and its Subsidiaries under the Term Facility
Documents.
"Transactions" means the execution, delivery and performance by the
Loan Parties of this Agreement and the other Loan Documents, the borrowing of
Loans, the use of the proceeds thereof, the issuance of Letters of Credit
hereunder and the consummation of the WildCard Acquisition.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WildCard Acquisition" means the acquisition by the Borrower, directly
or indirectly, of all issued and outstanding stock of the Target.
"Withdrawal Liability" means 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.
21
SECTION 1.02. 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 "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to 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".
Unless the context requires otherwise (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), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have 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.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment and (b) the sum of the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and
22
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e). Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $100,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten (10) Eurodollar Revolving Borrowings
outstanding in the aggregate.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., Chicago, Illinois time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., Chicago, Illinois time, on the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.06(e) may be given not later
than 10:00 a.m., Chicago, Illinois time, on the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery, electronic communication in accordance with
the terms of Section 9.01(b) or telecopy to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
23
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Intentionally Omitted.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000
or (ii) the sum of the total Revolving Credit Exposures exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy or
electronic communication in accordance with the terms of Section 9.01(b)), not
later than 12:00 noon, Chicago, Illinois time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from the Borrower. The Swingline Lender shall
make each Swingline Loan available to the Borrower by means of a credit to the
general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
Chicago, Illinois time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, Chicago, Illinois time, on any
Business Day require the Lenders
24
to acquire participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent,
as applicable, if and to the extent such payment is required to be refunded to
the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
(d) The Swingline Lender may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced Swingline
Lender and the successor Swingline Lender; provided that if the Lender acting as
Swingline Lender is removed as the Administrative Agent pursuant to Article
VIII, such Lender may resign from its role as the Swingline Lender without the
consent of any other Person. The Administrative Agent shall notify the Lenders
of any such replacement of, or resignation by, the Swingline Lender. At the time
any such replacement or resignation shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced or resigned
Swingline Lender pursuant to Section 2.12. From and after the effective date of
any such replacement or resignation, (i) the successor Swingline Lender shall
have all the rights and obligations of the Swingline Lender under this Agreement
with respect to Swingline Loans to be made thereafter and (ii) references herein
to the term "Swingline Lender" shall be deemed to refer to such successor or to
any previous Swingline Lender, or to such successor and all previous Swingline
Lenders, as the context shall require. After the replacement of, or resignation
by, a Swingline Lender hereunder, the replaced or resigned Swingline Lender
shall remain a party hereto and shall continue to have all the rights and
obligations of a Swingline Lender under this Agreement with respect to
25
Swingline Loans made by it prior to such replacement, but shall not be required
to make additional Swingline Loans.
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein (including without limitation Section 5.08), the
Borrower may request the issuance of Letters of Credit for the account of the
Borrower or any Subsidiary Guarantor (it being understood that the applicant in
respect of a Letter of Credit may be any Subsidiary), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $25,000,000
and (ii) the sum of the total Revolving Credit Exposures shall not exceed the
total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension provided that such
renewal or extension does not extend beyond the date referenced in the following
clause (ii)) and (ii) the date that is five Business Days prior to the Maturity
Date; provided that a Letter of Credit having an expiry date later than five
Business Days prior to the Maturity Date (an "Extended Letter of Credit") may be
issued if cash collateral in an amount (the "Backstop Amount") of not less than
105% of the amount available to be drawn under such Extended Letter of Credit is
pledged to the Issuing Bank or a back-up letter of credit in an amount not less
than the Backstop Amount and otherwise reasonably satisfactory to the Issuing
Bank in respect of such Extended Letter of Credit is delivered to the Issuing
Bank.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the
26
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and
each Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, Chicago, Illinois time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., Chicago, Illinois time, on such date, or,
if such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, Chicago, Illinois time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 10:00 a.m., Chicago, Illinois time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.05 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of ABR Revolving Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.
27
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy or electronic communication in accordance with the terms of Section
9.01(b)) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and
28
including the date such LC Disbursement is made to but excluding the date that
the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement and Resignation of the Issuing Bank. The Issuing Bank
may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank;
provided that if the Lender acting as Issuing Bank is removed as the
Administrative Agent pursuant to Article VIII, such Lender may resign from its
role as the Issuing Bank without the consent of any other Person. The
Administrative Agent shall notify the Lenders of any such replacement of, or
resignation by, the Issuing Bank. At the time any such replacement or
resignation shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced or resigned Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement or
resignation, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of, or resignation by, an Issuing Bank hereunder,
the replaced or resigned Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent based upon a request of the Required Lenders (or, if the
maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits in Permitted Investments, which investments
shall be made at the Borrower' risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for
29
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Chicago, Illinois time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
Phoenix, Arizona or such other account as is designated by the Borrower in the
applicable Borrowing Request, all to the extent specified in a written money
transfer instruction in the form of Exhibit E, as supplemented from time to
time; provided that ABR Revolving Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate
30
Borrowing. This Section shall not apply to Swingline Borrowings, which may not
be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery, electronic communication in accordance with the terms of Section
9.01(b) or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
31
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures would
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least two Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is five (5) Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding.
(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, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and 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 for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain
32
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a single promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns)
substantially in the form of Exhibit G. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by a promissory note in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy or electronic communication in accordance with the terms
of Section 9.01(b)) of any prepayment hereunder (i) in the case of prepayment of
a Eurodollar Revolving Borrowing, not later than 11:00 a.m., Chicago, Illinois
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., Chicago,
Illinois time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, Chicago,
Illinois time, on the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date and the principal amount of each Borrowing
or portion thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.09, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.09.
Promptly following receipt of any such notice relating to a Revolving Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of the Commitment
of such Lender during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates; provided that, (i)
outstanding Letters of Credit shall be considered usage of the Commitment for
purposes of calculating the commitment fee and (ii) Swingline Loans shall not be
considered usage of the Commitment for purposes of calculating the commitment
fee. Accrued commitment fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of
33
365/366 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Revolving Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure and (ii) to the Issuing Bank (A) a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) in respect of standby Letters of Credit during the period from
and including the Effective Date to but excluding the later of the date of
termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal, extension, negotiation or transfer of any Letter
of Credit or processing of drawings thereunder and (B) a fee in accordance with
the Issuing Bank's customary commissions for commercial Letters of Credit.
Participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 365/366 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate; provided that a Swingline Loan may bear interest at
such other rate as is agreed to by the Swingline Lender and the Borrower.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
34
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone, electronic communication in accordance with the terms of
Section 9.01(b) or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made
35
as an ABR Borrowing unless a Eurodollar Borrowing is available for a different
Interest Period permitted hereunder which shall be specified to the Borrower;
provided that if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law generally
applicable to financial institutions of the same classification as a Lender or
the Issuing Bank shall:
(i) 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, such Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) 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 of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit 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), then the
Borrower will 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,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law generally applicable to financial institutions of the same classification as
such Lender or the Issuing Bank regarding capital requirements 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 by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, 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), then from time
to time the Borrower will 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 necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
36
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 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 required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower promptly and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower 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 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 shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
37
(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 hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
38
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 1:00 p.m. Chicago, Illinois time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its main office at Chicago,
Illinois, except payments to be made directly to the Issuing Bank or Swingline
Lender as expressly provided herein and except that payments pursuant to
Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the
39
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) 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 has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld and shall not be required in the event that the Lender
being replaced is also then acting as the Administrative Agent, (ii) such Lender
shall have received payment of an
40
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.20. Increase of Commitments. At any time, the Borrower may
request that the total Commitments for all the Lenders (the "Aggregate
Commitment") be increased; provided that, without the prior written consent of
all of the Lenders, the Aggregate Commitment shall at no time exceed
$200,000,000. Such request shall be made in a written notice given to the
Administrative Agent and the Lenders by the Borrower not less than ten (10)
Business Days prior to the proposed effective date of such increase, which
notice (a "Commitment Increase Notice") shall specify the amount of the proposed
increase in the Aggregate Commitment and the proposed effective date of such
increase. The Borrower may notify the Administrative Agent of any financial
institution that shall have agreed to become a "Lender" party hereto (a
"Proposed New Lender") in connection with the Commitment Increase Notice and any
Proposed New Lender shall be consented to by the Administrative Agent and the
Issuing Bank (which consent shall not be unreasonably withheld or delayed). The
Administrative Agent shall notify the Borrower and the Lenders on or before the
Business Day immediately prior to the proposed effective date of the amount of
each Lender's and Proposed New Lenders' Commitment (the "Effective Commitment
Amount") and the amount of the Aggregate Commitment, which amount shall be
effective on the following Business Day. Any increase in the Aggregate
Commitment shall be subject to the following conditions precedent: (A) the
Borrower shall have obtained the consent thereto of each Subsidiary Guarantor
and its reaffirmation of the Loan Document(s) executed by it, which consent and
reaffirmation shall be in writing and in form and substance reasonably
satisfactory to the Administrative Agent, (B) as of the date of the Commitment
Increase Notice and as of the proposed effective date of the increase in the
Aggregate Commitment, all representations and warranties under Article III shall
be true and correct in all material respects as though made on such date (except
for representations and warranties for which exceptions thereto have been
disclosed in writing to the Administrative Agent and which have been approved in
writing by the Required Lenders) and no event shall have occurred and then be
continuing which constitutes a Default or Event of Default, (C) the Borrower,
the Administrative Agent and each Proposed New Lender or Lender that shall have
agreed to provide a "Commitment" in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit C, (D) counsel for the Borrower shall have
provided to the Administrative Agent supplemental opinions in form and substance
reasonably satisfactory to the Administrative Agent, (E) the Borrower and the
Proposed New Lender shall otherwise have executed and delivered such other
instruments and documents as may be required under Article IV or that the
Administrative Agent shall have reasonably requested in connection with such
increase and (F) the Administrative Agent shall have administered the
reallocation of the Revolving Credit Exposures on the effective date of such
increase ratably among the Lenders (including new Lenders) after giving effect
to such increase. The Borrower hereby agrees to compensate each
41
Lender for all losses, expenses and liabilities incurred by such Lender in
connection with the sale and assignment of any Eurocurrency Loan hereunder on
the terms and in the manner as set forth in Section 2.16 hereof. Upon
satisfaction of the conditions precedent to any increase in the Aggregate
Commitment, the Administrative Agent shall promptly advise the Borrower and each
Lender of the effective date of such increase. Upon the effective date of any
increase in the Aggregate Commitment that is supported by a Proposed New Lender,
such Proposed New Lender shall be a party to this Agreement as a Lender and
shall have the rights and obligations of a Lender hereunder. Nothing contained
herein shall constitute, or otherwise be deemed to be, a commitment on the part
of any Lender to increase its Commitment at any time.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and its Subsidiaries
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required. Schedule
3.01 hereto (as supplemented from time to time) identifies each Subsidiary, the
jurisdiction of its incorporation or organization, as the case may be, the
percentage of issued and outstanding shares of each class of its capital stock
or other equity interests owned by the Borrower and the other Subsidiaries and,
if such percentage is not 100% (excluding directors' qualifying shares as
required by law), a description of each class issued and outstanding. All of the
outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable
and all such shares and other equity interests indicated on Schedule 3.01 as
owned by the Borrower or another Subsidiary are owned, beneficially and of
record, by the Borrower or any Subsidiary free and clear of all Liens (other
than Liens created by the Collateral Documents). Other than pursuant to
stock-based compensation plans and Equity Interests of the Borrower or its
Subsidiaries issuable as Acquisition Consideration in connection with pending or
completed Permitted Acquisitions, there are no outstanding commitments or other
obligations of the Borrower or any Subsidiary to issue, and no options, warrants
or other rights of any Person to acquire, any shares of any class of capital
stock or other equity interests of the Borrower or any Subsidiary.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
42
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing (other
than Form 8-K filings to be filed with the SEC by the Borrower within 5 Business
Days of the Effective Date) with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
bylaws or other organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by the Borrower or any
of its Subsidiaries, and (d) will not result in the creation or imposition of
any Lien (other than Liens permitted under Section 6.02(b)) on any asset of the
Borrower or any of its Subsidiaries, other than pursuant to the Collateral
Documents.
SECTION 3.04. Financial Condition; No Material Adverse Effect. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2004, reported on by KPMG LLP, independent
public accountants, and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended March 31, 2005, certified by its chief financial officer.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 2004, there has been no event or circumstance
which has resulted in, or could reasonably be expected to result in, a Material
Adverse Effect.
SECTION 3.05. Properties and Insurance. (a) The Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
The Borrower maintains, and has caused each Subsidiary to maintain, with
financially sound and reputable insurance companies insurance on all their real
and personal property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
(b) The Borrower and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation, Contingent Obligations, Labor and
Environmental Matters. (a) There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) which could reasonably be
43
expected to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions. Neither the Borrower nor any Subsidiary has any
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 3.04.
(b) There are no labor controversies pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) which could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(c) Except with respect to any other matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or
44
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. No Default. The Borrower is in full compliance with this
Agreement and no Default or Event of Default has occurred and is continuing.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received the favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of the General Counsel of the Borrower and ▇▇▇▇▇▇ &
Whitney LLP, counsel for the Loan Parties, addressing the matters set forth
on Exhibit B, and covering such other matters relating to the Loan Parties,
this Agreement or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests each such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, this Agreement or the Transactions,
as set forth in Exhibit F and all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the Chief Executive Officer or a Financial
Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced,
45
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received reasonably
satisfactory results of due diligence investigation of the Target, the
Borrower and their respective subsidiaries, including, without limitation,
contingent liabilities (e.g., environmental, retiree medical benefits,
ERISA, etc.) and contractual obligations. All financial, accounting and tax
aspects of the WildCard Acquisition must be reasonably acceptable to the
Administrative Agent.
(g) The Administrative Agent and the Lenders shall have received
evidence satisfactory to them that the Target's and the Borrower's
respective directors and, to the extent required, shareholders shall have
approved the WildCard Acquisition; and all regulatory and legal approvals
for the WildCard Acquisition shall have been obtained.
(h) There shall exist an absence of any injunction or temporary
restraining order which, in the judgment of the Administrative Agent or the
Lenders would prohibit the making of the Loans or the consummation of the
WildCard Acquisition; and there shall exist an absence of litigation which
would reasonably be expected to result in a material adverse effect on the
Target and its subsidiaries.
(i) The WildCard Acquisition shall have been consummated on terms
reasonably acceptable to the Administrative Agent and substantially
concurrently with the making of the initial Loans.
(j) The Administrative Agent shall have received the audited financial
statements of the Target for the fiscal year ending December 31, 2004.
(k) The Administrative Agent shall have received pro forma opening
financial statements ("Pro Forma Opening Statements") giving effect to the
WildCard Acquisition and projections ("Updated Projections") updating the
projections dated as of January, 2005 ("Earlier Projections") previously
provided to the Administrative Agent, together with such information as the
Administrative Agent may request to confirm the tax, legal and business
assumptions made in such Pro Forma Opening Statements and Updated
Projections. The Pro Forma Opening Statements and Updated Projections must
demonstrate, in the reasonable judgment of the Administrative Agent and the
Lenders, together with all other information then available to the
Administrative Agent and the Lenders, that the ability of the Borrower and
its Subsidiaries to repay their debts and satisfy their respective other
obligations as and when due and to comply with Section 6.09 has not changed
in any material respect from the Earlier Projections.
(l) All legal (including tax implications) and regulatory matters
shall be satisfactory to the Administrative Agent and the Lenders.
(m) The agreement or agreements evidencing the WildCard Acquisition
(collectively, the "Acquisition Agreement") contains terms and conditions
acceptable to the Administrative Agent and the Lenders (including, without
limitation, the consideration to be paid in the WildCard Acquisition), the
representations and warranties
46
contained in the Acquisition Agreement shall be true and correct as of the
date of the Acquisition Agreement, the conditions precedent in the
Acquisition Agreement shall have been satisfied and the Administrative
Agent and the Lenders shall have received, to the extent delivered in
connection with the WildCard Acquisition, an opinion letter of counsel
satisfactory to them concerning the enforceability of the Acquisition
Agreement and its compliance with all applicable law.
(n) The amounts and forms of the consideration paid in connection with
the WildCard Acquisition shall be acceptable to the Administrative Agent
and the Lenders.
(o) The Administrative Agent and the Lenders shall have received
opinions of value, solvency and other appropriate factual information and
advice in form and substance satisfactory to them and from the chief
financial officer of the Borrower supporting the conclusions that, after
giving effect to the WildCard Acquisition, the Borrower is solvent and will
be solvent subsequent to incurring the indebtedness in connection with the
WildCard Acquisition, will be able to pay its debts and liabilities as they
become due and will not be left with unreasonably small capital with which
to engage in its business.
(p) The Administrative Agent shall have received a copy of any
fairness opinion issued relating to the terms of the WildCard Acquisition.
(q) Simultaneously with the making of the initial Loans, all
obligations under the existing loan facilities of the Target and its
subsidiaries shall be repaid pursuant to payoff letters in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel as well as repayments of all obligations under that certain Credit
Agreement dated as of February 18, 2005 by and among the Borrower, the
lenders party thereto and JPMorgan Chase Bank, N.A. as administrative
agent; provided that the Target may continue to be obligated under certain
secured indebtedness of the Target with respect to limited recourse
equipment financing agreements in existence on the date of the WildCard
Acquisition.
(r) No Default or Event of Default shall exist on the Effective Date.
No material adverse change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of the
Borrower or any of its Subsidiaries shall have occurred since December 31,
2004.
(s) The Administrative Agent shall have determined that there is an
absence of any material adverse change or disruption in primary or
secondary loan syndication markets, financial markets, or capital markets
generally that would likely impair syndication of the credit facility
evidenced hereby.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to
47
Section 9.02) at or prior to 3:00 p.m., Chicago, Illinois time, on August 1,
2005 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty the Borrower
on the date thereof as to the matters specified in paragraphs (a) and (b) of
this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent for distribution to each Lender:
(a) within the later of (i) 90 days after the end of each fiscal year
of the Borrower and (ii) the date of submission to the SEC of the
Borrower's annual financial report on Form 10K, its audited consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by KPMG LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
provided that, the delivery to the Administrative Agent of copies of the
Borrower's Annual Report on Form 10-K shall satisfy the requirements of
this clause (a);
(b) within the later of (i) 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower and (ii) the date
of submission to the SEC of
48
the Borrower's quarterly financial report on Form 10-Q, its consolidated
balance sheet and related statements of operations and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes, provided that, the delivery to the Administrative
Agent of copies of the Borrower's quarterly financial report to the SEC on
Form 10-Q shall satisfy the requirements of this clause (b);
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating (A) compliance with Sections 5.10,
6.01, 6.03(v), 6.04, 6.06 and 6.09 and (B) the determination of the
Applicable Rate and (iii) stating whether any change in GAAP or in the
application thereof that has a material financial impact to the Borrower's
consolidated financial results not described in the financial statements
delivered pursuant to clause (a) or (b), above, has occurred since the date
of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) to the extent requested by the Administrative Agent, within 90
days after the beginning of each fiscal year of the Borrower, a certificate
of a Financial Officer of the Borrower accompanied by a reasonably detailed
business plan and forecast (including a projected consolidated balance
sheet, income statement and statement of cash flows) of the Borrower for
such fiscal year;
(e) as soon as available, but in any event within 30 days after the
creation, sale or dissolution of any Subsidiary, an updated Schedule 3.01
hereto reflecting appropriate changes thereto;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as
the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
49
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent for distribution to each Lender prompt, and in any
event within 5 Business Days after occurrence, written notice of the following:
(a) the occurrence of any Default; and
(b) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
50
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only to finance the WildCard Acquisition, other Permitted Acquisitions and
expenses incurred in connection therewith and to finance the working capital
needs and other general corporate purposes of the Borrower and its Subsidiaries
in the ordinary course of business. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any
event within thirty (30) days (or such later date as may agreed upon by the
Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary
qualifies independently as, or is designated by the Borrower as, a Subsidiary
Guarantor pursuant to the definition of "Subsidiary Guarantor"), the Borrower
shall provide the Administrative Agent with written notice thereof setting forth
information in reasonable detail describing the material assets of such Person
and shall cause each such Subsidiary which also qualifies or is designated by
the Borrower as a Subsidiary Guarantor to deliver to the Administrative Agent
the Subsidiary Guaranty pursuant to which such Subsidiary agrees to be bound by
the terms and provisions of thereof, such Subsidiary Guaranty to be accompanied
by, to the extent requested by the Administrative Agent, appropriate corporate
resolutions, other corporate documentation and legal opinions in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
SECTION 5.10. Pledge Agreements. The Borrower shall execute or cause
to be executed, by no later than thirty (30) days (or such later date as is
agreed upon by the Administrative Agent acting in consultation with the Lenders)
after (i) each Foreign Pledge Event and (ii) the consummation of any Acquisition
pursuant to which the certificate described under clause (h) of the definition
of Permitted Acquisition demonstrates that a Foreign Pledge Event will occur as
a result of such acquisition, a Pledge Agreement in favor of the Collateral
Agent for the benefit of the Holders of Secured Obligations with respect to the
Applicable Pledge Percentage of the Equity Interests in each First-Tier Foreign
Subsidiary and all to the extent necessary or appropriate so that a Foreign
Pledge Event no longer exists or, notwithstanding such Acquisition, will not
exist, in each case after giving effect to such pledges; provided that no such
pledge of the Equity Interests in a First-Tier Foreign Subsidiary shall be
required hereunder to the extent such pledge is prohibited by applicable law or
the Administrative Agent and its counsel reasonably determine that such pledge
would not provide material Collateral for the benefit of the Holders of Secured
Obligations pursuant to legally binding, valid and enforceable Pledge
Agreements. The Borrower further agrees to deliver to the Collateral Agent all
such Pledge Agreements and other related Collateral Documents, together with
appropriate corporate resolutions and other corporate documentation (including,
to the extent requested by the Administrative Agent, legal opinions, stock
certificates representing the Equity Interests subject to such pledge, stock
powers with respect thereto executed in blank, and such other documents as shall
be reasonably requested to perfect the Lien of such pledge) in each case in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel, and in a manner that the Administrative Agent shall be reasonably
satisfied that the Collateral Agent has a first priority perfected pledge of or
charge over the Collateral related thereto.
51
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder and Indebtedness created under the
Term Facility;
(b) Subordinated Indebtedness in an aggregate principal amount not to
exceed $25,000,000;
(c) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
(d) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary (provided that not more
than $50,000,000 in loans or advances may be made and remain outstanding,
during the term of this Agreement, by any Loan Party to a Person which is
not a Loan Party);
(e) secured Indebtedness, not otherwise permitted by this Section
6.01, in an aggregate principal amount not to exceed $15,000,000 at any
time outstanding;
(f) Indebtedness secured by Liens permitted under Section 6.02(c);
(g) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary,
all to the extent permitted by this Section 6.01, provided that, with
respect to a guarantee of Subordinated Indebtedness, such guarantee is
subordinated similarly to such Subordinated Indebtedness;
(h) Contingent Payments; and
(i) other unsecured Indebtedness, not otherwise permitted by this
Section 6.01, in an aggregate principal amount not exceeding $10,000,000 at
any time outstanding.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
52
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) licenses, leases or subleases granted to other Persons in the
ordinary course of business and not interfering in any material respect
with the businesses of the Borrower or any Subsidiary;
(e) customary bankers' Liens and rights of setoff arising by operation
of law and incurred on deposits made in the ordinary course of business;
(f) Liens created by the Collateral Documents; and
(g) other Liens securing Indebtedness permitted under Section 6.01(e).
SECTION 6.03. Mergers; Sales of Assets and other Fundamental Changes.
(a) Unless consented to in writing by the Required Lenders, the Borrower will
not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and
Leaseback Transaction) of (in one transaction or in a series of transactions)
any of its assets (other than (1) sales, leases, transfers or other dispositions
of inventory in the ordinary course of business consistent with past practice,
(2) licenses, leases and subleases permitted by Section 6.02(e) and (3) sales or
dispositions of obsolete, damaged or worn-out equipment disposed of in the
ordinary course of business), or any of the stock of any of its Subsidiaries (in
each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Person may merge into
the Borrower or a Subsidiary Guarantor in a transaction in which the Borrower or
such Subsidiary Guarantor is the surviving entity or, in the case of a Person
merging with a Subsidiary Guarantor, such Person becomes a Subsidiary Guarantor
in accordance with the terms of Section 5.09 (provided that, in connection with
the WildCard Acquisition, any such Person shall become a Subsidiary Guarantor
53
substantially concurrently with the effectiveness of such merger), (ii) any
Subsidiary may merge into another Subsidiary in a transaction in which the
surviving entity is a Subsidiary (provided that any such merger involving the
Borrower or a Subsidiary Guarantor shall result with the Borrower or such
Subsidiary Guarantor as the surviving entity and a merger of the Borrower and a
Subsidiary Guarantor must result in the Borrower as the surviving entity), (iii)
any Loan Party may sell, transfer, lease or otherwise dispose of its assets to
another Loan Party, (iv) any Subsidiary may liquidate or dissolve if the
Borrower reasonably determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, (v) the Borrower or any Subsidiary may otherwise
sell, transfer, lease or dispose (including pursuant to a Sale and Leaseback
Transaction) of its assets so long as the assets sold or disposed by the
Borrower and its Subsidiaries in any fiscal year do not exceed, in the
aggregate, 10% of Consolidated Total Assets for the then most recently completed
fiscal year of the Borrower; provided that any such merger involving a Person
that is not a wholly owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 6.04, (vi) the Borrower may make
dispositions of cash equivalent investments assumed pursuant to a Permitted
Acquisition and replaced with cash or Permitted Investments and (vii) the sale
or discount without recourse of accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses (and
businesses reasonably related thereto) of the type conducted by the Borrower and
its Subsidiaries on the date of execution of this Agreement.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries;
(c) loans, advances or capital contributions made by the Borrower to
any Subsidiary and made by any Subsidiary to the Borrower or any other
Subsidiary (provided that not more than an aggregate of $50,000,000 in loans,
advances or capital contributions may be made and remain outstanding, during the
term of this Agreement, by Loan Parties to Subsidiaries which are not Loan
Parties);
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
54
(e) extensions of trade credit in the ordinary course of business and
settlement advances made to, or on behalf of, processing customers in the
ordinary course of business consistent with past practice;
(f) loans and advances to employees of the Borrower or any Subsidiary
in the ordinary course of business generally consistent with past practice;
(g) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of and other disputes with, customers and
suppliers arising in the ordinary course of business;
(h) (i) Permitted Acquisitions and (ii) so long as the aggregate
outstanding amount thereof does not exceed $125,000,000, Limited Equity
Acquisitions;
(i) other investments, loans and advances by the Borrower in or to
entities other than its Subsidiaries in an aggregate outstanding amount not to
exceed $20,000,000; and
(j) loans, advances or capital contributions made by any Loan Party to
a Subsidiary which is not a Loan Party (in excess of such loans, advances or
capital contributions permitted by Section 6.04(c)) so long as no Default or
Event of Default has occurred and is continuing prior to making such loans,
advances or capital contributions or would arise after giving effect thereto.
SECTION 6.05. Swap Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the Borrower or
any Subsidiary has actual exposure regardless of maturity (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b)
Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or
investment of the Borrower or any Subsidiary.
SECTION 6.06. Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) the Borrower may
declare and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (b) Subsidiaries may declare and pay
dividends ratably with respect to their Equity Interests, (c) the Borrower may
make Restricted Payments pursuant to and in accordance with stock option and
other employee benefit plans or in connection with the severance or termination
of employees of the Borrower or its Subsidiaries, and (d) the Borrower may make
any other Restricted Payment so long as no Default or Event of Default has
occurred and is continuing prior to making such Restricted Payment or would
arise after giving effect thereto.
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at
55
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) advances to officers, directors or employees of the Borrower or any
Subsidiary to the extent permitted by Section 6.04, (c) employment,
indemnification, and compensation arrangements (including arrangements made with
respect to bonuses and equity-based awards) entered into in the ordinary course
of business with members of the Board of Directors, officers and employees of
the Borrower or a Subsidiary, (d) transactions between or among the Borrower and
its wholly owned Subsidiaries not involving any other Affiliate, and (e) any
Restricted Payment permitted by Section 6.06.
SECTION 6.08. Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement or by
the Term Facility Documents, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.08 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases,
contracts or other agreements restricting the assignment thereof.
SECTION 6.09. Financial Covenants.
SECTION 6.09.01 Maximum Leverage Ratio. The Borrower will not permit
the ratio (the "Leverage Ratio"), determined as of the end of each of its fiscal
quarters ending on and after June 30, 2005, of (i) Consolidated Total
Indebtedness to (ii) Consolidated EBITDA for the period of 4 consecutive fiscal
quarters ending with the end of such fiscal quarter, all calculated for the
Borrower and its Subsidiaries on a consolidated basis, to be greater than 2.50
to 1.0.
Notwithstanding the foregoing, for purposes of determining the Leverage Ratio
pursuant to this Section, any Indebtedness incurred by the Borrower hereunder in
order to make settlement advances as contemplated by Section 6.04(e) shall not
be included in the calculation of Consolidated Total Indebtedness to the extent
that such Indebtedness is repaid within 5 days of the incurrence thereof.
SECTION 6.09.02 Minimum Fixed Charge Coverage Ratio. The Borrower will
not permit the ratio (the "Fixed Charge Coverage Ratio"), determined as of the
end of each of its fiscal quarters ending on and after June 30, 2005 for the
period of 4 consecutive fiscal quarters ending with the end of such fiscal
quarter, of (i) Consolidated EBITDAR to (ii) Consolidated
56
Fixed Charges, all calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be less than 1.75 to 1.0.
SECTION 6.10. Sale of Accounts. The Borrower will not, nor will it
permit any Subsidiary to, sell or otherwise dispose of any of its notes
receivable or accounts receivable, with or without recourse, except as permitted
under Section 6.03(a)(vii).
SECTION 6.11. Subordinated Indebtedness and Amendments to Subordinated
Note Documents. The Borrower will not, and will not permit any Subsidiary to,
directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness or
any Indebtedness from time to time outstanding under the Subordinated
Indebtedness Documents. Furthermore, the Borrower will not, and will not permit
any Subsidiary to, amend the Subordinated Indebtedness Documents or any
document, agreement or instrument evidencing any Indebtedness incurred pursuant
to the Subordinated Indebtedness Documents (or any replacements, substitutions,
extensions or renewals thereof) or pursuant to which such Indebtedness is issued
where such amendment, modification or supplement provides for the following or
which has any of the following effects:
(a) increases the overall principal amount of any such Indebtedness or
increases the amount of any single scheduled installment of principal or
interest;
(b) shortens or accelerates the date upon which any installment of
principal or interest becomes due or adds any additional mandatory
redemption provisions;
(c) shortens the final maturity date of such Indebtedness or otherwise
accelerates the amortization schedule with respect to such Indebtedness;
(d) increases the rate of interest accruing on such Indebtedness;
(e) provides for the payment of additional fees or increases existing
fees;
(f) amends or modifies any financial or negative covenant (or covenant
which prohibits or restricts the Borrower or any Subsidiary from taking
certain actions) in a manner which is more onerous or more restrictive in
any material respect to the Borrower or such Subsidiary or which is
otherwise materially adverse to the Borrower, any Subsidiary and/or the
Lenders or, in the case of any such covenant, which places material
additional restrictions on the Borrower or such Subsidiary or which
requires the Borrower or such Subsidiary to comply with more restrictive
financial ratios or which requires the Borrower to better its financial
performance, in each case from that set forth in the existing applicable
covenants in the Subordinated Indebtedness Documents or the applicable
covenants in this Agreement; or
(g) amends, modifies or adds any affirmative covenant in a manner
which (i) when taken as a whole, is materially adverse to the Borrower, any
Subsidiary and/or the Lenders or (ii) is more onerous than the existing
applicable covenant in the Subordinated Indebtedness Documents or the
applicable covenant in this Agreement.
57
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five
Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement, the
Subsidiary Guaranty, any Pledge Agreement, any other Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement, the Subsidiary Guaranty, any other Loan Document
or any amendment or modification thereof or waiver thereunder, shall prove to
have been materially incorrect when made or deemed made;
(d) (i) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.02, 5.03 (with respect to the
Borrower's existence), 5.08, 5.09 or 5.10 or in Article VI or (ii) any Loan
Document shall for any reason not be or shall cease to be in full force and
effect or is declared to be null and void, or the Borrower or any Subsidiary
takes any action for the purpose of terminating, repudiating or rescinding any
Loan Document or any of its obligations thereunder;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan Document
(other than those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after the earlier to
occur of (i) notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender) or (ii) a Financial Officer
of the Borrower becomes aware of any such breach;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Significant Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Significant
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Significant Indebtedness or any trustee or agent on its
or their behalf to cause any Significant Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled
58
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur.
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together
59
with accrued interest thereon and all fees and other Obligations accrued
hereunder and under the other Loan Documents, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
Obligations accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent and Collateral Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the JPMorgan Chase Bank, N.A. as Administrative Agent and Collateral Agent
hereunder and under each other Loan Document, and each of the Lenders and the
Issuing Bank authorizes each of the Agents to enter into the Intercreditor
Agreement on behalf of such Lender and the Issuing Bank (each Lender and the
Issuing Bank hereby agreeing to be bound by the terms of the Intercreditor
Agreement as if it were a party thereto) and to take such actions on its behalf
and on behalf of the Holders of Secured Obligations and to exercise such powers
as are delegated to the Agents by the terms hereof and the terms of the other
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The Administrative Agent shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.
No Agent shall have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) no Agent
shall be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, no Agent shall have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of
its Subsidiaries that is communicated to or obtained by the bank serving as
either Agent or any of its Affiliates in any capacity. No Agent shall be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to such Agent by the Borrower or a Lender, and neither shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this
60
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent or (vi) the perfection or priority of any of the Liens on any of the
Collateral.
The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Either Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more subagents appointed by such
Agent. The Agents and any such subagent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
subagent and to the Related Parties of the Agents and any such subagent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as an Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
The Administrative Agent may be removed at any time with or without cause by
written notice received by the Administrative Agent from the Borrower and the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right, with the consent of the Borrower, which consent shall not
be unreasonably withheld or delayed, to appoint a successor; provided, that if
any Event of Default has occurred and is continuing, no consent of the Borrower
shall be required. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the such
removal or resignation, then the retiring or removed Administrative Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent with the consent of the Borrower; provided, that if an
Event of Default has occurred and is continuing, no consent of the Borrower
shall be required. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation or removal hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in
61
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
None of the Lenders, if any, identified in this Agreement as a
Co-Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to the relevant Lenders in
their capacity as Co-Syndication Agents as it makes with respect to the
Administrative Agent in the preceding paragraph.
Except with respect to the exercise of setoff rights of any Lender,
including the Issuing Banks, in accordance with Section 9.08, the proceeds of
which are applied in accordance with this Agreement, each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against the
Borrower or with respect to any Loan Document, without the prior written consent
of the Required Lenders or, as may be provided in this Agreement or the other
Loan Documents, with the consent of the Administrative Agent.
The Lenders, including the Issuing Banks, are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Agents shall have the exclusive
right on behalf of the Lenders to enforce the payment of the principal of and
interest on any Loan or any Letter of Credit after the date such principal or
interest has become due and payable pursuant to the terms of this Agreement.
In its capacity, the Collateral Agent is a "representative" of the
Holders of Secured Obligations within the meaning of the term "secured party" as
defined in the Illinois Uniform Commercial Code. Each Lender authorizes the
Collateral Agent to enter into each of the Collateral Documents to which it is a
party and to take all action contemplated by such documents. Each Lender agrees
that no Holder of Secured Obligations (other than the Collateral Agent) shall
have the right individually to seek to realize upon the security granted by any
Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Collateral Agent for the benefit of the
Holders of Secured Obligations upon the terms of the Collateral Documents. In
the event that any Collateral is hereafter pledged by any Person as collateral
security for the Obligations, the Collateral Agent is hereby authorized, and
hereby granted a power of attorney, to execute and deliver on behalf of the
Holders of Secured Obligations any Loan Documents necessary or appropriate to
grant and perfect a Lien on such Collateral in favor of the Collateral Agent on
behalf of the Holders of Secured Obligations. The Lenders hereby authorize the
Collateral Agent, at its option and in its
62
discretion, to release any Lien granted to or held by the Collateral Agent upon
any Collateral (i) upon termination of the Commitments and payment and
satisfaction of all of the Obligations (other than contingent indemnity
obligations and Obligations in respect of Swap Agreements) at any time arising
under or in respect of this Agreement or the Loan Documents or the transactions
contemplated hereby or thereby; (ii) as permitted by, but only in accordance
with, the terms of the applicable Loan Document; or (iii) if approved,
authorized or ratified in writing by the Required Lenders, unless such release
is required to be approved by all of the Lenders hereunder. Upon request by the
Collateral Agent at any time, the Lenders will confirm in writing the Collateral
Agent's authority to release particular types or items of Collateral pursuant
hereto. Upon any sale or transfer of assets constituting Collateral which is
permitted pursuant to the terms of any Loan Document, or consented to in writing
by the Required Lenders or all of the Lenders, as applicable, and upon at least
five Business Days' prior written request by the Borrower to the Collateral
Agent, the Collateral Agent shall (and is hereby irrevocably authorized by the
Lenders to) execute such documents as may be necessary to evidence the release
of the Liens granted to the Collateral Agent for the benefit of the Holders of
Secured Obligations herein or pursuant hereto upon the Collateral that was sold
or transferred; provided, however, that (i) the Collateral Agent shall not be
required to execute any such document on terms which, in the Collateral Agent's
reasonable opinion, would expose the Collateral Agent to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens upon (or obligations of
the Borrower or any Subsidiary in respect of) all interests retained by the
Borrower or any Subsidiary, including (without limitation) the proceeds of the
sale, all of which shall continue to constitute part of the Collateral.
The Borrower, on its behalf and on behalf of its Subsidiaries, and
each Lender, on its behalf and on the behalf of its affiliated Holders of
Secured Obligations, hereby irrevocably constitute the Collateral Agent as the
holder of an irrevocable power of attorney (fonde de pouvoir within the meaning
of Article 2692 of the Civil Code of Quebec) in order to hold hypothecs and
security granted by the Borrower or any Subsidiary on property pursuant to the
laws of the Province of Quebec to secure obligations of the Borrower or any
Subsidiary under any bond, debenture or similar title of indebtedness issued by
the Borrower or any Subsidiary in connection with this Agreement, and agree that
the Collateral Agent may act as the bondholder and mandatary with respect to any
bond, debenture or similar title of indebtedness that may be issued by the
Borrower or any Subsidiary and pledged in favor of the Holders of Secured
Obligations in connection with this Agreement. Notwithstanding the provisions of
Section 32 of the An Act respecting the special powers of legal persons
(Quebec), JPMorgan Chase Bank, N.A. as Collateral Agent may acquire and be the
holder of any bond issued by the Borrower or any Subsidiary in connection with
this Agreement (i.e., the fonde de pouvoir may acquire and hold the first bond
issued under any deed of hypothec by the Borrower or any Subsidiary).
The Collateral Agent is hereby authorized to execute and deliver any
documents necessary or appropriate to create and perfect the rights of pledge
for the benefit of the Holders of Secured Obligations including a right of
pledge with respect to the entitlements to profits, the balance left after
winding up and the voting rights of the Borrower as ultimate parent of any
subsidiary of the Borrower which is organized under the laws of the Netherlands
and the Equity Interests of which are pledged in connection herewith (a "Dutch
Pledge"). Without prejudice to the provisions of this Agreement and the other
Loan Documents, the parties hereto acknowledge
63
and agree with the creation of parallel debt obligations of the Borrower or any
relevant Subsidiary as will be described in any Dutch Pledge (the "Parallel
Debt"), including that any payment received by the Collateral Agent in respect
of the Parallel Debt will - conditionally upon such payment not subsequently
being avoided or reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency, preference, liquidation or similar laws of general
application - be deemed a satisfaction of a pro rata portion of the
corresponding amounts of the Obligations, and any payment to the Holders of
Secured Obligations in satisfaction of the Obligations shall - conditionally
upon such payment not subsequently being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency, preference,
liquidation or similar laws of general application - be deemed as satisfaction
of the corresponding amount of the Parallel Debt. The parties hereto acknowledge
and agree that, for purposes of a Dutch Pledge, any resignation by the
Collateral Agent is not effective until its rights under the Parallel Debt are
assigned to the successor Collateral Agent.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy or electronic
communication in accordance with the terms of Section 9.01(b), as follows:
(i) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer and
Director of Treasury (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), Email addresses:
▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇), with a copy, in the
case of notices of Default, to the Borrower's General Counsel, at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), Email address:
▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
(ii) if to the Administrative Agent or Collateral Agent, to JPMorgan
Chase Bank, N.A., Loan and Agency Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇, Email address: ▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇), with copies to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Telecopy No. (612)
221-1115, Email address: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇);
(iii) if to the Issuing Bank, to JPMorgan Chase Bank, N.A., Loan and
Agency Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Email
address: ▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇);
64
(iv) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇,
Email address: ▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇); and
(v) if to any other Lender, to it at its address (or telecopy number
or e-mail address) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number or
e-mail address for notices and other communications hereunder by notice to the
other parties hereto. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that (1)
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any
65
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender or (vi) other than pursuant to a transaction permitted by the terms
of this Agreement or any other Loan Document, release all or substantially all
of the Collateral which is subject to the Loan Documents; (2) no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the Administrative Agent,
the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may
be and (3) anything herein to the contrary notwithstanding, the consent of the
Borrower shall not be required for any amendment to this Agreement made pursuant
to the provisions of the Fee Letter that provide for amendments or modifications
to the Credit Agreement without the consent of the Borrower.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and
their Affiliates, including the reasonable fees, charges and disbursements of
counsel for each Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, the Issuing Bank or any Lender,
including the reasonable fees, charges and disbursements of any counsel for
either Agent, the Issuing Bank or any Lender, in connection with the enforcement
or protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) The Borrower shall indemnify the Agents, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of the Loan Documents or any agreement
or instrument contemplated thereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding
66
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. A Person seeking to be indemnified under this Section 9.03
shall notify the Borrower of any event requiring indemnification within 30 days
following such Person's receipt of notice of commencement of any action or
proceeding, or such Person's obtaining knowledge of the occurrence of any other
event, giving rise to a claim for indemnification hereunder, and furthermore
such Person agrees to notify the Borrower from time to time of the status of any
such action or proceeding; provided, that the failure to so notify the Borrower
shall not affect the Borrower's duty or obligations under this Section 9.03.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Agents, the Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
relevant Agent, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the relevant Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
15 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
67
(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee;
(B) the Administrative Agent; and
(C) the Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire and shall agree to
be bound by Section 9.12 hereof.
For the purposes of this Section 9.04(b), the term "Approved Fund" has
the following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
68
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed
to make any payment required to be made by it pursuant to Section 2.05(c),
2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have
no obligation to accept such Assignment and Assumption and record the
information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(b) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender
69
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(c) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the Fee
Letter and any other letter agreements with respect to fees
70
payable to the Administrative Agent, and other matters described therein
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or electronic communication in accordance with the terms of Section
9.01(b) shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the internal laws (including, without limitation, 735 ILCS Section 105/5-1 et
seq, but otherwise without regard to the conflict of laws provisions) of the
State of Illinois, but giving effect to federal laws applicable to national
banks.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any United States
federal or Illinois state court sitting in Chicago, Illinois, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Illinois State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
71
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors who request the Information in
order to implement the terms of this Agreement and establish, administer and
enforce rights or remedies with respect to the credit facility hereunder (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) (i) to any other party to this
Agreement which has agreed to be bound by the terms of this Section and (ii) to
any prospective or proposed Lender which has agreed to be bound by an agreement
containing confidentiality provisions substantially the same as this paragraph
or otherwise acceptable to the Borrower, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the
72
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower, which source is not known by the relevant officers and
employees of the Administrative Agent, the Issuing Bank or such Lender involved
in the credit facility evidenced hereby to be bound by a confidentiality
agreement with the Borrower. For the purposes of this Section, "Information"
means (i) the commitment letter, term sheet and fee letters entered into in
connection herewith, (ii) all financial information and projections as has been
requested by the Administrative Agent from the Borrower in connection with the
arrangement and syndication of the credit facility evidenced hereby and (iii)
all other information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section (i) shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information and
(ii) agrees that money damages would not be a sufficient remedy for any breach
of agreement under this paragraph by such Person or its agents, advisors or
employees and that, in addition to all other available legal or equitable
remedies, the Borrower shall be entitled to equitable relief, including
injunction and specific performance, for any breach of the provisions of this
Section, without proof of actual damages.
SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.
[Signature Pages to Follow]
73
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
eFUNDS CORPORATION, as the Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and CEO
Signature Page to Credit Agreement
JPMORGAN CHASE BANK, N.A.,
as a Lender and as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Credit Agreement
BANK OF AMERICA, N.A.
individually and as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Credit Agreement
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
individually and as Co-Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
SUNTRUST BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Managing Director
Signature Page to Credit Agreement
COMERICA WEST INCORPORATED,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
NATIONAL BANK OF ARIZONA,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President,
Director of Corporate Lending
Signature Page to Credit Agreement
SCHEDULE 2.01
COMMITMENTS
LENDER COMMITMENT
------ ------------
JPMorgan Chase Bank, N.A. $ 33,500,000
Bank of America, N.A. $ 28,750,000
▇▇▇▇▇ Fargo Bank, National Association $ 28,750,000
SunTrust Bank $ 21,500,000
Comerica West Incorporated $ 12,500,000
KeyBank, National Association $ 12,500,000
National Bank of Arizona $ 12,500,000
AGGREGATE COMMITMENTS $150,000,000
The following Schedules and Exhibits have been omitted from this Exhibit:
Schedule 3.01 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Permitted Investments
Schedule 6.08 -- Existing Restrictions
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Commitment and Acceptance
Exhibit D -- Form of Subsidiary Guaranty
Exhibit E -- Form of Written Money Transfer Instruction
Exhibit F -- List of Closing Documents
Exhibit G -- Form of Promisory Note
The registrant will furnish supplementally a copy of any omitted Schedule or
Exhibit to the Securities and Exchange Commission upon the request of the
Commission.