Exhibit 99.2
ALL OBLIGATIONS HEREUNDER CONSTITUTE DESIGNATED "SENIOR INDEBTEDNESS" WITHIN THE
MEANING OF ANY INDENTURES RESPECTING SUBORDINATED DEBT OF THE BORROWER
(INCLUDING, WITHOUT LIMITATION, THAT CERTAIN INDENTURE DATED AS OF APRIL 4, 2001
WITH BANKERS TRUST COMPANY, AS TRUSTEE, AS AMENDED)
________________________________________________________________________________
________________________________________________________________________________
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 13, 2003
by and among
NCO GROUP, INC., as Borrower
and
THE FINANCIAL INSTITUTIONS party hereto from time to time as Lenders
and
CITIZENS BANK OF PENNSYLVANIA, as Administrative Agent
and
SUCH CO-ARRANGERS, CO-DOCUMENTATION AGENTS,
CO-AGENTS AND OTHER AGENTS
AS MAY BE APPOINTED
FROM TIME TO TIME
________________________________________________________________________________
CREDIT AGREEMENT
THIS SIXTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August
13, 2003, by and between NCO GROUP, INC., a Pennsylvania corporation ("NCOG" or
the "Borrower") and the Lenders referred to on the signature pages hereto
(together with other lenders party hereto from time to time pursuant to Section
11.9 (Successors and Assigns) below, and their successors and assigns, the
"Lenders"), CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania state-chartered bank
("Citizens") for itself and as Administrative Agent for the other Lenders (in
such capacity, together with its successors and assigns in such capacity, the
"Administrative Agent"), CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania
state-chartered bank, as issuer of Letters of Credit hereunder (in such
capacity, together with its successors and assigns in such capacity, the
"Issuer") and as a Co-Arranger, WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Co-Arranger and Syndication Agent, FLEET NATIONAL BANK, GENERAL ELECTRIC CAPITAL
CORPORATION, KEYBANK NATIONAL ASSOCIATION and NATIONAL CITY BANK, as
Co-Documentation Agents, and SOVEREIGN BANK, as Co-Agent (such Co-Arrangers,
Co-Documentation Agents and Co-Agent, collectively, the "Co-Agents").
Recitals:
A. NCO Financial Systems, Inc. ("NCO Financial") and Mellon Bank, N.A.
("Mellon") entered into that certain Credit Agreement dated as of July 28, 1995
("Original Credit Agreement"), pursuant to which Mellon made available to NCO
Financial certain credit facilities. The Original Credit Agreement was amended
and restated on September 5, 1996 (the "1996 Credit Agreement") pursuant to
which NCO Financial, NCOG, NCO Funding, Inc., and NCO of New York, Inc. each
became parties to the 1996 Credit Agreement, and further amended on September
11, 1996, December 13, 1996, and February 11, 1998. The 1996 Credit Agreement
was amended and restated as of March 23, 1998 (the "March 1998 Credit
Agreement") and further clarified by those certain Closing Memoranda dated May
5, 1998 and May 29, 1998. The March 1998 Credit Agreement was amended and
restated as of November 30, 1998 (the "November 1998 Credit Agreement"),
pursuant to which all U.S. subsidiaries as of that date (other than the then
"Excluded Subsidiaries," as defined therein) of NCOG became parties to the
November 1998 Credit Agreement. The November 1998 Credit Agreement was modified
by a Closing Memorandum dated November 30, 1998, a Global Amendment dated as of
January 11, 1999 and a First Amendment dated February 11, 1999. The November
1998 Credit Agreement was amended and restated as of May 20, 1999 (the "May 1999
Credit Agreement") under which the credit facilities were increased and
restructured. The May 1999 Credit Agreement was modified by a Closing Memorandum
dated as of May 20, 1999. In preparation for syndication of the new reducing
revolving credit facility, certain other changes were made in an interim draft
of the May 1999 Credit Agreement dated as of July 23, 1999; these changes were
made retroactive to May 20, 1999 and approved by NCOG by letter dated as of July
27, 1999. The May 1999 Credit Agreement, as amended, was further amended and
restated as of December 31, 1999 (as amended, including without limitation as
amended on October 31, 2002, the "Existing Credit Agreement") under which the
credit facilities were further restructured and otherwise modified.
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B. The Borrower has requested that the Existing Credit Agreement and
existing Loan Documents be further modified, amended and restated, and the
Lenders have agreed to amend and restate the Existing Credit Agreement, upon the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the
Borrower and the Lenders agree that the Credit Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
CREDIT FACILITIES
1.1 Loans.
(a) RC Loans. Upon the terms and subject to the conditions of this
Agreement (including all conditions precedent in Section 3.1 (Conditions to
Initial Loans)), each Lender agrees to make, from time to time during the period
from and including the Closing Date to but excluding the Maturity Date, one or
more revolving credit loans ("RC Loans") to the Borrower in an aggregate unpaid
principal amount not exceeding at any time such ▇▇▇▇▇▇'s RC Commitment (if any)
as set forth on Schedule 1.1 at such time; provided, however, that the Borrower
shall not request, and the Lenders shall have no obligation to make, any RC
Loans at any time in excess of the Available RC Commitment. The total amount of
the RC Commitment of all Lenders on the Closing Date is $50,000,000.00. Up to
$10,000,000.00 of the Available RC Commitment (the "Letter of Credit Sublimit")
may be used for the issuance of stand-by Letters of Credit upon the terms and
conditions set forth herein. The RC Loans shall be borrowed, accrue interest and
be repaid as set forth below. The RC Loans shall be evidenced by the RC Notes.
(b) Term Loan. Upon the terms and subject to the conditions of this
Agreement (including all conditions precedent in Section 3.1 (Conditions to
Initial Loans)), each Lender agrees to make, on the Closing Date, a term loan
(the "Term Loan") to the Borrower in an original principal amount equal to such
▇▇▇▇▇▇'s Term Loan Commitment (if any) as set forth on Schedule 1.1. The total
amount of the Term Loan made by Lenders on the Closing Date is $150,000,000.00.
The Term Loan shall be borrowed, accrue interest and be repaid as set forth
below. The Borrower shall not be permitted to re-borrow any amounts repaid under
the Term Loan. The Term Loan shall be evidenced by the Term Loan Notes.
1.2 Manner Of Borrowing.
(a) Notice of Borrowing. The Borrower shall give the Administrative
Agent notice (which shall be irrevocable), in the case of Prime Rate Loans, no
later than 12:00 p.m. (Philadelphia, Pennsylvania time) on the Business Day for
the making of such Loans and, in the case of LIBO Rate Loans, 12:00 p.m.
(Philadelphia, Pennsylvania, time) three (3) Business Days before the requested
date for the making of such Loans. Each such notice shall be in the form of
Exhibit B hereto and shall specify (i) the requested date for the making of such
Loan(s) which date shall be a Business Day (and in the case of the Term Loan,
shall be the Closing Date), (ii) the Type or Types of Loans requested and (iii)
the amount of each such Type of Loan, which in the case of RC Loans shall be
$1,000,000.00 or any integral multiple of $500,000.00 in excess thereof (except
that the amount of a requested RC Loan may be less if the amount requested is
equal to the total Available RC Commitment). Upon receipt of any such notice,
the Administrative Agent shall promptly notify each applicable Lender of the
contents thereof and of the amount and Type of each Loan to be made by such
Lender on the requested date specified therein. Notwithstanding the foregoing,
the Administrative Agent in its sole discretion may agree to different timing of
notices for borrowings on the Closing Date.
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(b) Funding by ▇▇▇▇▇▇▇. Not later than 1:00 p.m. (Philadelphia,
Pennsylvania time) on each requested date for the making of Loans, each Lender
shall make available to the Administrative Agent, in Dollars and in funds
immediately available to the Administrative Agent at the office designated by
the Administrative Agent, the Loans to be made by such Lender on such date,
provided, however, that if a Lender does not receive timely notice from the
Administrative Agent as set forth in paragraph (a) above, such Lender shall fund
the required amount promptly upon receipt of such notice. The obligations of the
Lenders hereunder are several; accordingly, any ▇▇▇▇▇▇'s failure to make any
Loan to be made by it on the requested date therefor shall not relieve any other
Lender of its obligation to make any Loan to be made by it on such date, but the
latter shall not be liable for the former's failure.
(c) Permitted Assumption as to Funding. Unless the Administrative
Agent shall have received notice from a Lender prior to 1:00 p.m. (Philadelphia,
Pennsylvania time) on the requested date for the making of any Loan that such
Lender will not make available to the Administrative Agent the Loan requested to
be made by it on such date, the Administrative Agent may assume that such ▇▇▇▇▇▇
has made such Loan available. The Administrative Agent in its sole discretion
and in reliance upon such assumption, may make available to the Borrower on the
requested date a corresponding amount on behalf of such Lender. If and to the
extent such Lender shall not have made available to the Administrative Agent the
Loans requested to be made by such Lender on such date and the Administrative
Agent shall have so made available to the Borrower a corresponding amount on
behalf of such Lender, (i) such Lender shall, on demand, pay to the
Administrative Agent such corresponding amount together with interest thereon,
for each day from the date such amount shall have been so made available by the
Administrative Agent to the Borrower until the date such amount shall have been
paid in full to the Administrative Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter at the
Prime Rate, and (ii) the Administrative Agent shall be entitled to all interest
payable by Borrower on such amount for the period commencing on the date such
amount was advanced by the Administrative Agent to but not including the date on
which such amount is received by the Administrative Agent from such Lender.
Moreover, any Lender that shall have failed to make available the required
amount shall not be entitled to vote on such matters as Lenders, Majority
Lenders or Super Majority Lenders are otherwise entitled to vote on or consent
to or approve under this Agreement and the other Loan Documents until such
amount with interest is paid in full to the Administrative Agent by such ▇▇▇▇▇▇.
Without limiting any obligations of any Lender pursuant to this paragraph (c),
if such Lender does not pay such corresponding amount promptly upon the
Administrative Agent's demand therefor, the Administrative Agent shall notify
the Borrower and the Borrower shall promptly repay such corresponding amount to
the Administrative Agent together with accrued interest thereon at the
applicable rate or rates on such Loans.
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(d) Disbursements of Funds to Borrower. All amounts made available
to the Administrative Agent in accordance with paragraph (b) above shall be
disbursed by the Administrative Agent promptly but in any event not later than
3:00 p.m. (Philadelphia, Pennsylvania time) on the requested date therefor in
Dollars, in funds immediately available to the Borrower by crediting such amount
to an account of Borrower at the Administrative Agent's Domestic Lending Office
or in such other manner as may be agreed to by ▇▇▇▇▇▇▇▇ and the Administrative
Agent.
1.3 Repayments.
(a) Repayments of RC Loans. The aggregate outstanding principal
amount of the RC Loans shall mature and become due and payable, and shall be
repaid by the Borrower, on the Maturity Date. Borrower shall also repay
immediately the amount by which the outstanding RC Loans plus the Contingent
Reimbursement Obligations plus any unreimbursed Drawings exceeds the RC
Commitment at any time following a reduction in the RC Commitment.
(b) Repayment of Term Loan. Principal of the Term Loan shall be due
and payable in quarterly installments on each Quarterly Payment Date, commencing
with September 30, 2003, through and including the Maturity Date. Assuming there
is no prepayment of the Term Loan, each quarterly installment shall be in the
amount of $6,250,000.00 (prepayments shall be applied as set forth in section
1.4(b) (Application and Timing of Prepayments) or as elsewhere provided in this
Agreement). Borrower shall also make a final payment of any outstanding
principal, all accrued and unpaid interest on the Term Loan and other
outstanding Obligations on the Maturity Date.
1.4 Voluntary Prepayments.
(a) Optional Prepayments. The Borrower may, at any time and from
time to time, prepay the Loans in whole or in part, without premium or penalty
(but with any payment required under Section 2.4 (Breakage)), except that any
optional prepayment (other than a prepayment of all outstanding Loans, or a
prepayment designated for application to the RC Loans) shall be in an aggregate
principal amount of $5,000,000.00 or any integral multiple thereof, and any
optional prepayment designated for application to the RC Loans (other than a
prepayment of all outstanding RC Loans) shall be in an aggregate principal
amount of $500,000.00 or any integral multiple thereof. Amounts to be so prepaid
shall irrevocably be due and payable on the date specified in the applicable
notice of prepayment delivered pursuant to paragraph (b) of this Section 1.4
together with interest thereon as provided in Section 1.7 (Interest), other
fees, charges and expenses set forth herein and together with any payment
required under Section 2.4 (Breakage).
(b) Application and Timing of Prepayments.
(i) Notice. The Borrower shall give the Administrative Agent
notice of each prepayment of Loans, which notice, in the case of a prepayment of
Prime Rate Loans, shall be given no later than 1:00 p.m. (Philadelphia,
Pennsylvania time) one (1) Business Day before and, in the case of a prepayment
of LIBO Rate Loans, no later than 12:00 P.M. (Philadelphia, Pennsylvania, time)
three (3) Business Days before, the date of such prepayment. Each such notice of
prepayment shall be in the form of Exhibit C hereto and shall specify (i) the
date such prepayment is to be made, and (ii) the amount and Type and, in the
case of any LIBO Rate Loan, the last day of the applicable Interest Period for
the Loan to be prepaid. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each applicable Lender of the contents thereof.
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(ii) Timing and Application of Prepayments of Loans. Except as
otherwise provided in this Agreement (including without limitation as specified
by Section 7.3 (Application of Proceeds)), any prepayments of Loans pursuant to
the terms hereof (whether voluntary or involuntary) shall be applied in the
following order:
(1) first, prepayments shall be applied against any
interest, breakage and other fees, charges and expenses due and
payable in respect of the Loans prepaid and Commitments being
reduced;
(2) second, prepayments shall be applied against the Term
Loan (reducing the Term Loan by a corresponding amount in the
inverse order of maturity); and
(3) third, prepayments shall be applied against the RC
Loans but with no corresponding reduction in the RC Commitment
unless such payment is made in accordance with Section 1.6(c);
provided, however, that notwithstanding the foregoing, in the
case of optional prepayments designated for application to the
RC Loans, prepayments shall be applied first as described in
clause (1) above, and then as provided in clause (3) above.
Any excess shall be applied to any other amounts owing in
respect of the Obligations (first to interest, fees and
indemnities and then to principal and other amounts) and, if
all such Obligations have been then paid in full, then any
excess amount shall be returned to Borrower or as otherwise
required by applicable Law. In the case of a prepayment applied
against principal of the Loans, the payment will, unless
otherwise directed by the Borrower in writing (which direction
shall be irrevocable when given) be applied first to Prime Rate
Loans and then to LIBO Rate Loans with Interest Periods
expiring at the time of such payment, and the excess, if any,
will be held by the Administrative Agent in an interest-bearing
cash collateral account (or such other account as is agreed
between the Borrower and the Administrative Agent) for
application to LIBO Rate Loans as their successive Interest
Periods expire.
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1.5 Payments By The Borrower In General.
(a) Time, Place and ▇▇▇▇▇▇. All payments due to the Administrative
Agent and the Lenders under the Loan Documents shall be made to the
Administrative Agent at the office designated by the Administrative Agent on the
signature pages hereto or to such other Person or at such other address as the
Administrative Agent may designate by written notice to ▇▇▇▇▇▇▇▇. Until further
notice from the Administrative Agent and except as otherwise provided herein,
all such payments shall be made by charging the Borrower's deposit account with
the Administrative Agent as provided in Section 1.5(c). Except as otherwise set
forth in this Agreement, a payment shall not be deemed to have been made on any
day unless such payment has been received by the required Person, at the
required place of payment, in Dollars in funds immediately available to such
Person, no later than 1:00 p.m. (Philadelphia, Pennsylvania time) on such day;
provided, however, that the failure of the Borrower to make any such payment by
such time shall not constitute an Event of Default hereunder so long as such
payment is received no later than 3:00 p.m. (Philadelphia, Pennsylvania time) on
such day, but any such payment received later than 1:00 p.m. (Philadelphia,
Pennsylvania time) on such day shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on the amount paid,
provided further, that any such payment made with the proceeds of Loans shall be
deemed to have been made on the date of the making of such Loans, so long as
such proceeds are immediately so applied and are not otherwise disbursed to the
Borrower.
(b) No Reductions. All payments due to the Administrative Agent or
any Lender under this Agreement and the other Loan Documents, shall be made by
the Borrower without any reduction or deduction whatsoever, including any
reduction or deduction for any charge, set-off, holdback, recoupment or
counterclaim (whether sounding in tort, contract or otherwise).
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent to charge any amounts due under this
Agreement against any or all of the demand deposit or other accounts (other than
accounts containing escrow or trust funds) of Borrower with the Administrative
Agent (whether maintained at a branch or office located within or without the
United States), with the Borrower remaining liable for any deficiency. The
Administrative Agent shall give the Borrower one day prior notice of the amount
to be charged; provided, however, that advance notice shall not be required to
charge any amount due for principal of the Term Loan, interest or the Unused
Fee, and the Administrative Agent shall only advise of such charge after such
charge has been made.
(d) Extension of Payment Dates if Not a Business Day. Whenever any
payment to the Administrative Agent or any Lender under the Loan Documents would
otherwise be due (except by reason of acceleration) on a day that is not a
Business Day, such payment shall instead be due on the next succeeding Business
Day unless, in the case of a payment of the principal of LIBO Rate Loans, such
extension would cause payment to be due in the next succeeding calendar month,
in which case such due date shall be advanced to the next preceding Eurodollar
Business Day. If the due date for any payment under the Loan Documents is
extended (whether by operation of any Loan Document, applicable Law or
otherwise), such payment shall bear interest for such extended time at the rate
of interest applicable hereunder.
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(e) Disbursement of Payments to Lenders. The Administrative Agent
shall promptly distribute to each applicable Lender its ratable share of each
payment received by the Administrative Agent under the Loan Documents for the
account of such Lender by crediting an account of such Lender at the
Administrative Agent's office or by wire transfer to an account of such Lender
at an office of any other commercial bank located in the United States or at any
Federal Reserve Bank designated by such Person. Unless the Administrative Agent
shall have received notice from Borrower prior to the date on which any payment
is due to any Lenders under the Loan Documents that the Borrower will not make
such payment in full, the Administrative Agent may assume that the Borrower has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent, in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each applicable Lender on such due date,
a corresponding amount with respect to the amount then due to such Person. If
and to the extent that the Borrower shall not have so made such payment in full
to the Administrative Agent, and the Administrative Agent shall have so
distributed to such Lender or Lenders a corresponding amount, such Lender shall,
on demand, repay to the Administrative Agent the amount so distributed together
with interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Person repays such amount to the Administrative
Agent, at the Federal Funds Rate until (and including) the third Business Day
after demand is made and thereafter at the Prime Rate. Moreover, any Lender that
shall have failed to make available the required amount shall not be entitled to
vote on such matters as Lenders, Majority Lenders or Super Majority Lenders are
otherwise entitled to vote on or consent to or approve under this Agreement and
the other Loan Documents until such amount with interest is paid in full to the
Administrative Agent by such ▇▇▇▇▇▇. Nothing in this Section 1.5 shall relieve
the Borrower from any payment obligations.
(f) Breakage Costs on LIBO Rate Loans. Any repayment or prepayment
of a LIBO Rate Loan made on a day other than the last day of the applicable
Interest Period therefor shall be subject to payments in respect of breakage
costs as required to be paid in respect thereof pursuant to Section 2.4
(Breakage) below.
1.6 Mandatory Prepayments and RC Commitment Reductions.
(a) [Intentionally Omitted].
(b) Mandatory Prepayments Upon Certain Events.
(i) Debt or Equity Offerings. At the time of any offering of
debt or equity by Borrower (other than an issuance of debt under Section 6.3
(Indebtedness), or equity in connection with (x) a Permitted Acquisition, (y) a
Permitted NCOP Purchase Transaction, or (z) a transaction permitted under
Section 6.11 (Stock Issuances)), Borrower shall make a mandatory prepayment of
the Loans, which payment shall be applied in the order provided in Section
1.4(b)(ii) hereof, in an amount equal to fifty percent (50%) of the net cash
proceeds received therefrom.
(ii) Permitted NCPM Sale Transaction. The following prepayment
provisions shall apply with respect to any Permitted NCPM Sale Transaction:
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a. If it is a sale of an interest in NCPM equal to or
greater than the amount of the Closing Date NCPM Interest, then Borrower shall
promptly make a mandatory prepayment of the Loans in an amount equal to the
Maximum NCPM Investment Amount. The prepayment shall first be applied against
the Term Loans, together with accrued interest thereon, in the inverse order of
maturity, until paid in full, and then to the RC Loans, together with accrued
interest thereon, but with no corresponding reduction in the RC Commitment. In
addition, an amount equal to the amount of any net cash proceeds of such
Permitted NCPM Sale Transaction in excess of the Maximum NCPM Investment Amount
shall be used to prepay RC Loans to the extent that there are any then
outstanding, but with no corresponding reduction in the RC Commitment.
b. If it is a sale of an interest in NCPM less than the
amount of the Closing Date NCPM Interest, then the Borrower shall promptly make
a mandatory prepayment of the Loans in an amount equal to the lesser of (such
lesser amount being, the "Adjusted Actual Proceeds")(i) the actual net cash
proceeds received from the sale and (ii) the Proportionate NCPM Investment
Amount, provided, however, at the time of any sale of the remaining interest in
NCPM pursuant to paragraph (a) above, the Borrower shall make a mandatory
prepayment of the Loans in an amount that, when added to the Adjusted Actual
Proceeds applied as set forth above in this paragraph (b), shall equal the
Proportionate NCPM Investment Amount at the time of prior partial sale.
Prepayments under this paragraph (b) shall first be applied against the Term
Loans, together with accrued interest thereon, in the inverse order of maturity,
until paid in full, and then to the RC Loans, together with accrued interest
thereon, but without any reduction in the RC Commitment. In addition, an amount
equal to the amount of any net cash proceeds of such Permitted NCPM Sale
Transaction in excess of the Proportionate NCPM Investment Amount, if any, shall
be used to prepay RC Loans to the extent that there are any then outstanding,
but with no corresponding reduction in the RC Commitment.
c. Notwithstanding the foregoing, if the Borrower has
made optional prepayments of the Term Loans under Section 1.4(a) (Optional
Prepayments) above or mandatory prepayments of the Term Loans pursuant to
paragraph (iii) (Prepayment Upon Termination of NCPM/NCOG Credit Agreement)
below (but in the case of an optional prepayment pursuant to Section 1.4(a)
above, only to the extent that it has not previously been applied as a reduction
in the amount payable pursuant to subsection (iii) (Prepayment Upon Termination
of NCPM/NCOG Credit Agreement) below pursuant to clause (b) thereof) so long as
no Event of Default shall be in existence at the time of the sale or be created
by such sale the aggregate amount of all such optional and mandatory prepayments
shall be deemed to be an advance payment of amounts due under this subsection
(ii) and reduce by a corresponding amount Borrower's mandatory prepayment
obligation hereunder.
d. For the sale of clarity, the Borrower shall not be
required pursuant to this clause (ii) or the following clause (iii) to prepay
the Loans in an amount greater than the Maximum NCPM Investment Amount.
(iii) Prepayment Upon Termination of NCPM/NCOG Credit
Agreement.
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a. It is understood that at any time that the NCPM/NCOG
Credit Agreement shall be terminated, the Lenders shall be entitled to a
repayment of the Loans in an amount equal to the Debt Portion of the NCPM
Investment to the extent that the Loans were not previously prepaid in respect
of such amount in connection with a sale of NCPM as provided above. Inasmuch as
the Maximum NCPM Investment Amount was derived from a combination of the equity
investment of the Borrower in NCPM and the debt investment in NCPM in the form
of the NCPM/NCOG Credit Agreement, the Debt Portion of the NCPM Investment, to
the extent not previously used to repay the Loans, shall serve to reduce the
amount of the Loans at the time of the termination of the NCPM/NCOG Credit
Agreement. Accordingly,
(A) if at the time that the NCPM/NCOG Credit
Agreement is terminated, the Borrower shall have prepaid the
Loans by an amount equal to the Maximum NCPM Investment Amount
pursuant to paragraph (ii) (Permitted NCPM Sale Transaction)
above, no further prepayment of the Loans shall be required in
connection with the termination of the facility; and
(B) if at the time that the NCPM/NCOG Credit
Agreement is terminated, the Borrower shall not have prepaid the
Loans by an amount equal to the Maximum NCPM Investment Amount
pursuant to paragraph (ii) (Permitted NCPM Sale Transaction)
above, then the Borrower shall, concurrent with the terminations
of the facility prepay the Loans by and amount equal to the
Requisite Payment Amount on Termination of NCPM Facility.
Prepayments under this paragraph (iii) shall first be applied against the Term
Loans, together with accrued interest thereon, in the inverse order of maturity,
until paid in full, and then to the RC Loans, together with accrued interest
thereon, but without any reduction in the RC Commitment.
b. Notwithstanding the foregoing, if the Borrower has made
optional prepayments of the Term Loans under Section 1.4(a) (Optional
Prepayments) above, to the extent that it has not applied such optional
prepayments against its obligations to prepay Loans pursuant to paragraph (ii)
(Permitted NCPM Sales Transaction) above, so long as no Event of Default shall
be in existence at the time of the termination of the NCPM/NCOG Credit Agreement
or be created by such termination, the aggregate amount of such optional
prepayments shall be deemed to be an advance payment of amounts due under this
subsection (iii) and reduce by a corresponding amount Borrower's mandatory
prepayment obligation hereunder.
(c) Optional RC Commitment Reduction or Termination. The
Borrower may reduce or terminate the RC Commitment by giving the Administrative
Agent notice (which shall be irrevocable) thereof no later than 11:00 a.m.
(Philadelphia, Pennsylvania, time) on the third Business Day (fifth Business Day
for termination of the RC Commitment) before the requested date of such
reduction or termination, provided, that each partial reduction of the RC
Commitment shall be in an amount equal to $5,000,000.00 or any integral multiple
of $1,000,000.00 in excess thereof and, provided, further, that no reduction
shall reduce the RC Commitment to an amount less than the aggregate of the
principal amount of all RC Loans outstanding on such date (after giving effect
to any repayment or prepayment of RC Loans made on or prior to such date) plus
the Contingent Reimbursement Obligations plus the amount of any unreimbursed
Drawings. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Lender of the contents thereof and the amount (based on a
pro rata reduction to each Lender's RC Commitment) to which such Lender's RC
Commitment is to be reduced.
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(d) No Reinstatement of RC Commitment. Once reduced
hereunder, the RC Commitment shall not be restored without the written consent
of all Lenders.
1.7 Interest.
(a) Interest Rates in General. Subject to the terms and conditions
of this Agreement, each Loan, at the option of the Borrower, shall bear interest
on the outstanding principal amount thereof until paid in full at a rate per
annum equal to (i) the Prime Rate as in effect from time to time plus the
Applicable Margin or (ii) the applicable LIBO Rate for a specified Interest
Period plus the Applicable Margin.
(b) Election of LIBO Rate. Unless otherwise designated by the
Borrower as a LIBO Rate Loan in accordance with this paragraph (b), each Loan
shall be deemed to be a Prime Rate Loan as more fully set forth below.
(i) Prime Rate Unless Otherwise Designated. Prime Rate Loans
shall continue as Prime Rate Loans unless and until such Loans are converted
into Loans of another Type. LIBO Rate Loans for any Interest Period shall
continue as Loans of such Type until the end of the then current Interest Period
therefor, at which time they shall be automatically converted into Prime Rate
Loans unless Borrower shall have given the Administrative Agent notice in
accordance with clause (ii) below requesting that such Loans continue as LIBO
Rate Loans for another Interest Period of a specified duration.
(ii) Election of LIBO Rate. To elect a LIBO Rate, Borrower
shall give the Administrative Agent notice (which shall be irrevocable) no later
than 12:00 p.m. (Philadelphia, Pennsylvania, time) three (3) Eurodollar Business
Days before the requested date of the funding, conversion or continuation which
date shall be a Eurodollar Business Day. Each such notice shall be in the form
of Exhibit D hereto and shall specify (A) the requested date of such funding,
conversion or continuation, (B) whether the subject Loan is a new advance or an
existing Loan that is to be converted or continued, (C) in the case of any LIBO
Rate Loan being continued, the last day of the current Interest Period, and (D)
the amount of, and the desired Interest Period for, the Loan subject to such
LIBO Rate election, provided that the Borrower shall not be entitled to select
an Interest Period for any Loan which shall end on a date later than the
Maturity Date. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each applicable Lender of the contents thereof.
(iii) LIBO Rate Suspended During Event of Default.
Notwithstanding anything to the contrary contained in clause (i) or (ii) of this
paragraph (b), so long as an Event of Default shall have occurred and be
continuing, the Administrative Agent may (and, at the request of the Majority
Lenders, shall) notify Borrower that Loans may only be converted into or
continued upon the expiration of the applicable current Interest Period therefor
as Prime Rate Loans or Loans of such specified Types as shall be acceptable to
the Majority Lenders. Thereafter, until no Event of Default shall continue to
exist, Loans may not be converted into or continued as Loans of any Type other
than Prime Rate Loans or one or more of such specified Types.
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(iv) Limitation on Types of Loans. Notwithstanding anything to
the contrary contained in this Agreement, the Borrower shall borrow, prepay,
convert and continue Loans in a manner such that (A) unless otherwise agreed to
by the Administrative Agent, the aggregate principal amount of LIBO Rate Loans
of the same Type shall, at all times, be not less than $1,000,000.00 and (B)
there shall be, at any one time, no more than ten (10) Interest Periods for LIBO
Rate Loans in effect.
(v) Flexibility as to Source. Each Lender may fund LIBO Rate
Loans from any source that such Lender deems (in its sole discretion)
appropriate without loss of any rights hereunder.
(c) Interest Payment Dates. Interest shall be payable, (i) in the
case of Prime Rate Loans, monthly in arrears on each Monthly Payment Date, (ii)
in the case of LIBO Rate Loans, on the last day of each applicable Interest
Period (and, in the case of any LIBO Rate Loan having an Interest Period longer
than three months, on each three month anniversary of the first day of such
Interest Period) and (iii) in the case of any Loan, when such Loan shall be due
(whether at maturity, upon mandatory prepayment, by reason of notice of
prepayment or acceleration or otherwise) or converted, but only to the extent
then accrued on the amount then so due or converted.
(d) Default Rate. At any time that an Event of Default shall have
occurred and shall be continuing, at the Administrative Agent's option (or at
the direction of the Majority Lenders) but without notice to Borrower or any
other Person, any amount payable hereunder and under each other Loan Document
shall bear interest (whether before or after judgment), payable on demand, at a
rate per annum equal to the applicable Default Rate. Any such determination by
the Administrative Agent or Majority Lenders may be applied retroactively to the
date of the Event of Default.
1.8 Fees.
(a) Unused Fee. The Borrower shall pay to the Administrative Agent,
for the ratable account of each Lender with an RC Commitment, an unused fee
("Unused Fee") calculated at a rate per annum equal to the percentage amount set
forth below, under the caption "Unused Fee" opposite the relevant Consolidated
Funded Debt/Consolidated EBITDA Ratio, on the average daily unused amount of
such Lender's RC Commitment for each day from and including the Closing Date to
but excluding the Maturity Date:
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Consolidated Funded Debt/
Consolidated EBITDA Ratio Unused Fee
------------------------- ----------
< 2.0 .375%
> 2.0 and < 2.5 .375%
> 2.50 .500%
The Unused Fee shall be payable in arrears (i) on successive Monthly Payment
Dates beginning with the first Monthly Payment Date after the Closing Date (ii)
on the date of any reduction of the RC Commitment (to the extent accrued and
unpaid on the amount of such reduction) and (iii) on the Maturity Date. The
Unused Fee shall be adjusted on the first Business Day of the month after
delivery of each Officer's Compliance Certificate under Section 5.1 (Basic
Reporting Requirements) or in the event of any Permitted Acquisition, on the
first Business Day of the month after closing and delivery of the Pro-Forma
Covenant Compliance Certificate required for the acquisition. If an Officer's
Compliance Certificate is required to be delivered pursuant to Section 5.1
(Basic Reporting Requirements) and is not delivered by its deadline, then five
(5) Business Days after notice to Borrower the Unused Fee shall be the highest
percentage specified above until the Officer's Compliance Certificate is so
delivered. Notwithstanding the foregoing, the Unused Fee will be fixed at .500%
from the Closing Date through February 28, 2004.
(b) Letter of Credit Fees. The Borrower shall pay to the Issuer for
the ratable benefit of the Lenders with an RC Commitment, a "Letter of Credit
Fee" on the face amount of each Letter of Credit at a rate per annum equal to
2.00%. Such fee shall be payable upon issuance of each Letter of Credit and, if
the Letter of Credit is "evergreen", on each anniversary of such issuance for so
long as the Letter of Credit remains outstanding. The Borrower shall also pay to
the Issuer for the Issuer's sole account the Issuer's then in effect standard
document preparation fees and reasonable administrative expenses payable with
respect to Letters of Credit.
(c) Other Fees. The Borrower shall pay to the Administrative Agent
for the sole account of the Administrative Agent, such fees, including an annual
Administrative Agent's fee, as have been or may be agreed to in writing by the
Borrower and the Administrative Agent in connection with this Agreement and the
transactions contemplated by this Agreement.
1.9 Computation Of Interest And Fees. Interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed. Interest and fees for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof.
1.10 Promissory Notes; Records Of Account. Each Lender's Loans and the
Borrower's obligations to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of the
Administrative Agent and such Lender and a single RC Note or Term Loan Note, as
applicable, payable to the order of such Lender. The records of each Lender
shall be prima facie evidence of such ▇▇▇▇▇▇'s Loans and, in each case, of
accrued interest thereon and all payments made in respect thereto. In the event
that there is any dispute concerning the amount of any such obligations, the
amount of each Lender's Commitment and the amount of outstanding Obligations of
each and every Type shall at all times be ascertained from the records of the
Administrative Agent, which shall be conclusive absent manifest error. Notes may
become Registered Notes pursuant to the terms of Section 1.13(a) below.
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1.11 Pro Rata Treatment. Except to the extent otherwise provided
herein, Loans shall be made by, and principal, interest and fees in respect
thereof shall be paid or repaid to, the Lenders pro rata in accordance with
their respective Commitments, if any, in such Loans.
1.12 Taxes On Payments.
(a) Taxes Payable by the Borrower. If any Tax is required to be
withheld or deducted from, or is otherwise payable by the Borrower in connection
with, any payment due to the Administrative Agent or any Lender that is not a
"United States Person" (as such term is defined in Section 7701(a)(30) of the
Code), the Borrower (i) shall, if required, withhold or deduct the amount of
such Tax from such payment and, in any case, pay such Tax to the appropriate
taxing authority in accordance with applicable Law and (ii) except in the case
of any Bank Tax, shall pay to such Lender or the Administrative Agent such
additional amounts as may be necessary so that the net amount received by such
Person with respect to such payment, after withholding or deducting all Taxes
required to be withheld or deducted (including Taxes on additional amounts
payable under this paragraph (a)), is equal to the full amount payable
hereunder. If any Tax is withheld or deducted from, or is otherwise payable by
the Borrower in connection with, any payment due to any Lender or the
Administrative Agent hereunder, the Borrower shall furnish to such Person the
original or a certified copy of a receipt (if any) for such Tax from the
applicable taxing authority or other evidence of payment thereof satisfactory to
such Person within 30 days after the date of such payment (or, if such receipt
shall not have been made available by such taxing authority within such time,
the Borrower shall use reasonable efforts to promptly obtain and furnish such
receipt). If the Borrower fails to pay any such Taxes when due to the
appropriate taxing authority or fail to remit to any Lender or the
Administrative Agent the required receipts or other evidence of payment thereof
satisfactory to such Person, the Borrower shall indemnify such Person for any
Taxes, interest, penalties or additions to Tax that may become payable by such
Person as a result of any such failure.
(b) Taxes Payable by any Lender or the Administrative Agent. The
Borrower shall, promptly upon request by any Lender or the Administrative Agent
that is not a United States Person, pay to such Person an amount equal to (i)
all Taxes (other than Bank Taxes and without duplication of amounts paid
pursuant to the preceding paragraph (a)) payable by such Person with respect to
any payment due to such Person hereunder and (ii) all Taxes (other than Bank
Taxes) payable by such Person as a result of payments made by the Borrower
(whether made to a taxing authority or to such Person pursuant to the preceding
paragraph (a) or this paragraph (b)).
(c) Credits and Deductions. If any Lender or the Administrative
Agent is, in its sole opinion, able to apply for any refund, offset, credit,
deduction or other reduction in Taxes by reason of any payment made by the
Borrower under the preceding paragraph (a) or (b), such Lender or the
Administrative Agent, as the case may be, shall use reasonable efforts to obtain
such refund, offset, credit, deduction or other reduction and, upon receipt
thereof, will pay to the Borrower such amount, not exceeding the increased
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amount paid by the Borrower, as is equal to the net after-tax value to such
Lender or the Administrative Agent, in its sole opinion, of such part of such
refund, offset, credit, deduction or other reduction as it considers to be
allocable to such payment by the Borrower, having regard to all of such Person's
dealings giving rise to similar refunds, offsets, credits, deductions or other
reductions in relation to the same tax period and to the cost of obtaining the
same; provided, however, that if such Person has made a payment to the Borrower
pursuant to this paragraph (c) and the applicable refund, offset, credit,
deduction or other reduction in Tax is subsequently disallowed, the Borrower
shall, promptly upon request by the Administrative Agent or such Lender refund
to such Person that portion of such payment determined by such Person, in its
sole opinion, relating to such disallowance; and provided, further that (i) the
Administrative Agent or such Lender, as the case may be, shall not be obligated
to disclose to the Borrower any information regarding its Tax affairs or
computations and (ii) nothing in this paragraph (c) shall interfere with the
right of such Person to arrange its Tax affairs as it deems appropriate.
(d) Exemption from U.S. Withholding Taxes. Each Lender that is not
a United States Person shall submit to the Borrower and the Administrative
Agent, on or before the fifth day prior to the first Monthly Payment Date
occurring after the Closing Date (or, in the case of a Person that is not a
United States Person and that became a Lender by assignment, promptly upon such
assignment), two duly completed and signed copies of either (A) Form 1001 of the
United States Internal Revenue Service Form W-9, W-8ECI or W-8BEN, or other
applicable form prescribed by the Internal Revenue Service of the United States,
certifying in either case that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes, or are subject to such tax at a reduced rate under
an applicable tax treaty, or Form W-8BEN or other applicable form or a
certificate of the Lender indicating that no such exemption or reduced rate is
allowable with respect to such payments. Each Lender which so delivers a Form
W-8BEN, W-9, or W-8ECI further undertakes to deliver to each of the Borrower and
the Agent two additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, either certifying that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes or are
subject to such tax at a reduced rate under an applicable tax treaty or stating
that no such exemption or reduced rate is allowable. The Agent shall be entitled
to withhold United States federal income taxes at the full withholding rate
unless the Lender establishes an exemption or at the applicable reduced rate as
established pursuant to the above provisions. Upon the request of the Borrower
or the Administrative Agent, each Lender that is a United States Person shall
submit to the Borrower and the Administrative Agent a certificate to the effect
that it is a United States Person.
(e) Survival. Obligations under this Section 1.12 shall survive
payment of the Loans and the other Obligations.
1.13 Registered Notes And Loans.
(a) Request for Registration. Any Lender may request the Borrower
(through the Administrative Agent), and the Borrower agrees thereupon, to
register such Loans as provided in Section 1.13(c) and to issue such ▇▇▇▇▇▇'s
Note(s), evidencing such Loans, or to exchange such Note(s) for new Note(s),
registered as provided in Section 1.13(c) (each, a "Registered Note"). A
Registered Note may not be exchanged for a Note that is not in registered form.
A Registered Note shall be deemed to be and shall be a Note for all purposes of
this Agreement and the other Loan Documents.
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(b) Delivery of Tax Forms. Each Non-U.S. Lender that requests or
holds a Registered Note pursuant to Section 1.13(a) or registers its Loans
pursuant to Section 1.13(a) (a "Registered Lender") (or, if such Registered
Lender is not the beneficial owner thereof, such beneficial owner) shall deliver
to Borrower (with a copy to the Administrative Agent) prior to or at the time
such Non-U.S. Lender becomes a Registered Lender, the applicable form described
in Section 1.12(d) (or such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States) together
with an annual certificate stating that such Registered Lender or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and is not otherwise described in Section 881(c)(3) of
the Code. Each Registered Lender or beneficial owner, as the case may be, shall
promptly notify Borrower (with a copy to the Administrative Agent) if at any
time such Registered Lender or beneficial owner, as the case may be, determines
that it is no longer in a position to provide such previously delivered
certificate to the Borrower (or any other form of certification adopted by the
relevant taxing authorities of the United States for such purposes).
(c) Registration of Loans. The Administrative Agent, acting, for
this purpose, as agent of the Borrower, shall, upon request of any Registered
Lender, enter in the Register the name, address and taxpayer identification
number (if provided) of the Registered Lender or beneficial owner, as the case
may be. In addition to the requirements of Section 11.9 (Successors and
Assigns), a Registered Note and the Loans evidenced thereby (or such Loans
pending delivery of such Registered Note) or any other Loans registered pursuant
to Section 1.13(a) above may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer of such Registered Note
and/or the Loans so registered on the Register (and each such Registered Note
shall expressly so provide). Any assignment or transfer of all or part of such
Loans and such Registered Note shall be registered on the Register only upon
compliance with the provisions of Section 11.9 (Successors and Assigns) and, in
the case of Registered Notes, surrender for registration of assignment or
transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer fully executed by)
the Registered Lender thereof, and thereupon one or more new Registered Notes in
the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s) and, if less than all of such Registered Notes is
thereby being assigned or transferred, the assignor or transferor.
1.14 Issuance Of Letters Of Credit.
(a) In General. Upon the terms and subject to the conditions of
this Agreement, the Issuer shall, from time to time, from the Closing Date to
the date which is 90 days prior to the Maturity Date (or such shorter time
period as to which the Administrative Agent and Issuer may agree, in their sole
and absolute discretion), issue one or more stand-by Letters of Credit for the
account of ▇▇▇▇▇▇▇▇, provided that the sum of the Contingent Reimbursement
Obligations (after giving effect to the requested Letter of Credit) plus the
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aggregate unpaid amount of all Drawings under Letters of Credit shall not exceed
the Letter of Credit Sublimit and provided, further, that the face amount of the
Letter of Credit so requested shall not exceed the Lenders' Available RC
Commitments at such time. Each Letter of Credit shall be in a form and shall
contain such terms as shall be reasonably satisfactory to the Issuer. Letters of
Credit shall be issued only on a Business Day and shall be used for the general
corporate purposes of the Borrower or for such other purposes as shall be
acceptable to the Issuer in its sole discretion. The issuance of a Letter of
Credit, or any unreimbursed Drawing thereunder, shall reduce the Available RC
Commitment by an amount equal to the Contingent Reimbursement Obligations under
such Letter of Credit or the amount of such unreimbursed Drawing, as the case
may be.
(b) Terms. Each Letter of Credit shall be denominated only in
Dollars and shall expire on or before the first anniversary of the issuance
thereof and in any event not later than the fifth Business Day preceding the
Maturity Date (or such later Business Day as to which the Administrative Agent
and Issuer may agree, in their sole and absolute discretion, provided that in
all instances Letters of Credit expiring later than the Maturity Date shall be
cash collateralized on terms acceptable to the Issuer and to the extent of 105%
of the Contingent Reimbursement Obligations). No Letter of Credit shall have an
expiration date which is extendable under an "evergreen" or similar provision
unless the Issuer expressly agrees to the same in its sole discretion in any
particular case. All other extensions and renewals are also at the sole
discretion of the Issuer. For purposes of Section 3.2 (Conditions to All Loans)
only, any extension of the expiry date of a Letter of Credit to a date beyond
the first anniversary of the issuance thereof shall constitute an "issuance" of
such Letter of Credit for all purposes hereof.
(c) Form of Request. The Borrower shall request the issuance of a
Letter of Credit by furnishing to the Agent and the Issuer, at least five
Business Days before the requested date of such issuance (or at such later time
as shall be acceptable to the Issuer), such notice thereof as shall be
reasonably satisfactory to the Issuer to which shall be attached a certificate
of the chief financial officer representing that the Borrower is not, and after
giving effect to the additional Indebtedness will not be, in Default hereunder.
(d) Participation by ▇▇▇▇▇▇▇. Upon the date of issuance of a
Letter of Credit, the Issuer shall be deemed to have granted to each Lender
(other than the Issuer), and each Lender (other than the Issuer) shall be deemed
to have acquired from the Issuer without further action by any party hereto, a
participation in such Letter of Credit and any Drawings that may at any time be
made thereunder, to the extent of such ▇▇▇▇▇▇'s pro rata share of the RC
Commitment.
(e) Notice of Drawings. The Issuer shall promptly notify Borrower
of its receipt of each Drawing request with respect to a Letter of Credit,
stating the date and amount of the Drawing requested thereby and the date and
amount of each Drawing disbursed pursuant to such request. The failure of the
Issuer to give, or delay in giving, any such notice shall not release or
diminish the obligations hereunder of the Borrower in respect of such Drawing.
(f) Reimbursement of Drawings by ▇▇▇▇▇▇▇▇. If at any time Borrower
receives notice of a Drawing, the Borrower shall reimburse such Drawing by
paying to the Issuer in immediately available funds the amount of the payment
made by the Issuer with respect to such Drawing, together with interest thereon
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at a rate per annum equal to the Prime Rate from the day that the Drawing is
made until the day such reimbursement is made if such Drawing is not reimbursed
on the day the Drawing is made. Such reimbursement shall be made by the Borrower
to the Issuer no later than one (1) Business Day following the Business Day that
Borrower receives the relevant notice of Drawing if such notice is received on
or prior to 10:00 a.m. (Philadelphia, Pennsylvania time) and no later than two
(2) Business Days following the date that ▇▇▇▇▇▇▇▇ receives the relevant notice
of Drawing if such notice is received after 10:00 a.m. (Philadelphia,
Pennsylvania time). If the Borrower shall fail to make any payment required by
this paragraph (f) at the time specified, and if at such time, there shall be
any RC Commitment, the Administrative Agent may (but is not obligated to) assume
that the Borrower intends to use the proceeds of RC Loans to make such payment,
subject to the then Available RC Commitment. In reliance on such assumption, the
Administrative Agent may (but is not obligated to) notify the Lenders (and
Borrower) that notwithstanding the Borrower's failure to provide notice pursuant
to Section 1.2(a), such notice is deemed given pursuant to this paragraph (f)
requesting an RC Loan bearing interest at the Prime Rate in an amount sufficient
to make the payments required by this paragraph. Such notice from the
Administrative Agent shall be treated by the Lenders in the same manner as a
notice from the Borrower under Section 1.2(a). The Administrative Agent may, at
the direction of the Issuer, apply the proceeds of such RC Loans to satisfy the
requirements of this paragraph.
(g) Obligations of Lenders to Issuer. In the event that the
Borrower shall fail to make any payment when due pursuant to the preceding
paragraph (f) and for so long as such failure shall be continuing, the Issuer
may give notice of such failure to the Administrative Agent and each Lender,
which notice shall include, in the case of a Lender, the amount of such ▇▇▇▇▇▇'s
participating interest in such Drawing, whereupon each such Lender (other than
the Issuer) shall promptly remit such amount to the Administrative Agent for the
account of the Issuer as provided in this paragraph (g). Each Lender (other than
the Issuer) shall, in the event it receives such notice from the Issuer at or
before 12:00 noon (Philadelphia, Pennsylvania time) on any Business Day, fund
its participation in any unreimbursed Drawing by remitting to the Administrative
Agent, no later than 2:00 p.m. (Philadelphia, Pennsylvania time) on such day, in
immediately available funds its share of the reimbursement obligations in
respect of each Drawing. In the event that the Administrative Agent receives
such funds from a Lender at or before 2:00 p.m. (Philadelphia, Pennsylvania
time) on any day, the Administrative Agent shall make available the amount
thereof to the Issuer, in immediately available funds no later than 3:00 p.m.
(Philadelphia, Pennsylvania time) on that same day. Any amount payable by a
Lender to the Administrative Agent for the account of the Issuer under this
paragraph (g), and any amount payable by the Administrative Agent to the Issuer
under this paragraph (g), shall bear interest for each day from the date due
(and including such day if paid after 2:00 p.m. (Philadelphia, Pennsylvania
time) in the case of any such payment by a Lender to the Administrative Agent,
or 3:00 p.m. (Philadelphia, Pennsylvania time), in the case of any such payment
by the Administrative Agent to the Issuer, on such day) until the date it is
received by the Issuer at a rate equal to the Federal Funds Rate until (and
including) the third Business Day after the date due and thereafter at the Prime
Rate. Moreover, any Lender that shall have failed to make available the required
amount shall not be entitled to vote on such matters, other than those set forth
in Section 11.8 (Successors and Assigns), as Lenders, Majority Lenders or Super
Majority Lenders are otherwise entitled to vote on or consent to or approve
under this Agreement and the other Loan Documents until such amount with
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interest is paid in full to the Administrative Agent by such ▇▇▇▇▇▇. Each Lender
shall, upon the demand of the Issuer, reimburse the Issuer, through the
Administrative Agent to the extent that the Issuer has not been reimbursed by
the Borrower after demand therefor, for the reasonable costs and expenses
(including reasonable legal fees) incurred by it (other than as a result of its
willful misconduct or gross negligence as finally determined by a court of
competent jurisdiction) in connection with the collection of amounts due under,
the administration of, and the preservation and enforcement of any rights
conferred by, the Letters of Credit or the performance of the Issuer's
obligations under this Agreement in respect thereof on a pro rata basis relative
to such ▇▇▇▇▇▇'s pro rata share of the RC Commitment (as of the time such costs
and expenses are incurred). The Issuer shall refund through the Administrative
Agent any costs and expenses reimbursed by such ▇▇▇▇▇▇ that are subsequently
recovered from the Borrower in an amount equal to such ▇▇▇▇▇▇'s ratable share
thereof.
(h) Cash Collateral. It is intended that at all times that the
Borrower shall have any Contingent Reimbursement Obligations or other
obligations (including obligations in respect of fees) relating to Letters of
Credit, there shall be sufficient availability under the RC Commitment to
reimburse the Issuer (and the Lenders) out of proceeds of RC Loans. Accordingly,
in the event that there shall, at any time, be insufficient availability under
the RC Commitment (after giving effect to all outstanding RC Loans, Contingent
Reimbursement Obligations and unreimbursed Drawings under Letters of Credit) to
do so (whether because the amount of the RC Commitment is reduced pursuant to a
mandatory reduction or is terminated at maturity, upon acceleration or otherwise
or because the amount of outstanding RC Loans, Contingent Reimbursement
Obligations and unreimbursed Drawings under Letters of Credit exceed the amount
of the RC Commitment for any other reason), the Borrower shall forthwith pay to
the Administrative Agent an amount sufficient to cure such deficiency. Such
amount shall be maintained by the Administrative Agent in an interest-bearing
cash collateral account in the name of and for the benefit of the Issuer and the
Lenders to secure such payment obligations of the Borrower. Upon receipt of a
notice from the Issuer that there are unreimbursed Drawings or other amounts due
in respect of such Letters of Credit (which notice shall set forth the amount of
such unreimbursed Drawings or other obligations) the Administrative Agent shall
promptly disburse from the cash collateral account the amount specified in the
notice and shall pay such amount to the Issuer and Lenders ratably in accordance
with the respective amounts owing to each such Person, first, for fees and
indemnities until the same are paid in full and, second, for unreimbursed
Drawings. The Administrative Agent and the Issuer may rely on their records as
to any amounts so owing and shall be fully protected in doing so. Such records
shall be conclusive, absent manifest error. At any time that the RC Commitment
again becomes available for reimbursement of Drawings under outstanding Letters
of Credit such that (i) the sum of the RC Commitment at that time and the amount
in the cash collateral account exceeds (ii) the sum of all outstanding RC Loans,
the Contingent Reimbursement Obligations and the amount of all unreimbursed
Drawings, then, upon written request of Borrower (which request shall (A)
represent that there exists no Default or Event of Default and (B) specify the
amount of such excess), the Administrative Agent shall release such excess
amount to the Borrower from the cash collateral account. If all Obligations
(other than Obligations constituting contingent obligations under
indemnification provisions which survive indefinitely, so long as no unsatisfied
claim has been made under any such indemnification provision) have been
indefeasibly paid in full in cash, all RC Commitments have terminated and all
Letters of Credit have expired, promptly following demand by Borrower, the
Administrative Agent shall release to the Borrower all remaining funds in the
Letter of Credit cash collateral account.
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(i) Obligations Absolute. The obligation of Borrower and each
Lender to make available to the Issuer the amounts set forth in this Section
1.14 shall be absolute, unconditional and irrevocable under any and all
circumstances without reduction for any set-off or counterclaim of any nature
whatsoever, and may not be terminated, suspended or delayed for any reason
whatsoever, shall not be subject to any qualification or exception and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances, including any of the following circumstances:
(1) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or
other right which Borrower may have at any time against a
beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the
Issuer, any Lender or any other Person, whether in
connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated
transactions (including any underlying transaction between
Borrower and the beneficiary named in any such Letter of
Credit);
(3) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any
respect;
(4) the surrender or impairment of any security for
the performance or observance of any of the terms of any
of the Loan Documents; or
(5) the occurrence of any Default or Event of
Default.
(j) Limitations on Liability; Protection of Issuer,
Administrative Agent and ▇▇▇▇▇▇▇.
(1) Limitation on Liability of Lenders. Without
affecting any rights any Lenders may have under applicable
Law, ▇▇▇▇▇▇▇▇ agrees that none of the Lenders, the Issuer,
the Administrative Agent or their respective officers or
directors shall be liable or responsible for, and the
obligations of the Borrower to the Lenders, the Issuer and
the Administrative Agent hereunder shall not in any manner
be affected by: (A) the use that may be made of any Letter
of Credit or the proceeds thereof by the beneficiary
thereof or any other Person or any acts or omissions of
such beneficiary or any other Person; (B) the validity,
sufficiency or genuineness of documents presented in
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connection with any Drawing, or of any endorsements
thereon, even if such documents should, in fact, prove to
be in any or all respects, invalid, insufficient,
fraudulent or forged; or (C) any other circumstances
whatsoever in making or failing to make payment under any
Letter of Credit or any other action taken or omitted to
be taken by any Person under or in connection with any
Letter of Credit, except that the Borrower shall have a
claim against the Issuer and the Issuer shall be liable to
the Borrower, in each case to the extent and only to the
extent of any damages suffered by the Borrower that it
proves are caused by the Issuer's willful misconduct or
gross negligence. In furtherance and not in limitation of
the foregoing, in determining whether to pay under any
Letter of Credit, the Issuer shall not have any obligation
relative to the other Lenders other than to determine that
any documents required to be delivered under such Letter
of Credit appear to have been delivered and that they
appear to comply on their face with the requirements of
such Letter of Credit, regardless of any notice or
information to the contrary. Any action taken or omitted
to be taken by the Issuer under or in connection with any
Letter of Credit (if taken or omitted in the absence of
gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction) shall not
create for the Issuer any resulting liability to Borrower
or any Lender.
(2) Indemnification and Expenses. In addition to any
other amounts payable under this Agreement, the Borrower
agrees to protect, indemnify, pay and hold the Issuer and
each Lender harmless from and against any and all claims,
costs, charges and expenses (including reasonable
attorneys' fees) which the Issuer may incur or be subject
to as a consequence, direct or indirect, of (A) the
issuance of, or payment of any drawing under, any Letter
of Credit, other than as a result of the gross negligence
or willful misconduct of the Issuer and/or such Lender as
finally determined by a court of competent jurisdiction or
(B) the failure of the Issuer to honor a Drawing under any
Letter of Credit as a result of any act or omission of any
present or future government or Governmental Authority.
(3) Issuer Not Responsible. In furtherance of the
foregoing limitations on liability, the Issuer shall not
be responsible for: (A) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document
submitted by any party in connection with the issuance of
Letters of Credit; (B) the validity or sufficiency of any
instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in
part; (C) errors, omissions, interruptions, or delays in
transmissions or delivery of any messages, by mail, cable,
telecopy, telex or otherwise, whether or not in cipher;
(D) the misapplication by the beneficiary of any Letter of
Credit or the proceeds of any drawing under such Letter of
Credit; or (E) any consequence arising from causes beyond
the control of the Issuer, including any governmental
acts; except, in the case of this paragraph (3), for
damages proven to be caused by the Issuer's gross
negligence or willful misconduct.
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ARTICLE II
YIELD PROTECTION AND BREAKAGE INDEMNITY
2.1 Mandatory Suspension And Conversion Of LIBO Rate Loans. Each
Lender's obligations to make, continue or convert into LIBO Rate Loans of any
Type shall be suspended, all such Lender's outstanding Loans of such Type shall
be converted into Prime Rate Loans on the last day of their applicable Interest
Periods (or, in the case of clause (c) below, on the last day such Lender may
lawfully continue to maintain Loans of such Type if earlier, or, in the case of
clause (d) below, on the day determined by such Lender to be the last Business
Day before the effective date of the applicable restriction), and all pending
requests for the making or continuation of or conversion into Loans of such Type
by such Lender shall be deemed requests for Prime Rate Loans, if:
(a) on or prior to the date required for the determination of a
LIBO Rate for any Interest Period, the Administrative Agent determines that for
any reason appropriate information is not available to it for purposes of
determining the LIBO Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a LIBO
Rate Loan, the Majority Lenders have informed the Administrative Agent of their
determination that the LIBO Rate as determined by the Administrative Agent for
such Interest Period would not accurately reflect the cost to such Lenders of
making, continuing or converting into a LIBO Rate Loan for such Interest Period;
(c) at any time such Lender determines that any Regulatory Change
makes it unlawful or impracticable for such Lender or its applicable Eurodollar
Lending Office to make, continue or convert into a LIBO Rate Loan of such Type,
or to comply with its obligations hereunder in respect thereof; or
(d) such Lender notifies the Administrative Agent of its
determination that (i) by reason of any Regulatory Change, such Lender or its
applicable Eurodollar Lending Office is restricted, directly or indirectly, in
the amount that it may hold of (A) a category of liabilities that includes
deposits by reference to which, or on the basis of which, the interest rate
applicable to LIBO Rate Loans of such Type is directly or indirectly determined
or (B) the category of assets that includes LIBO Rate Loans of such Type and
(ii) in connection therewith, such ▇▇▇▇▇▇ has elected not to make available
hereunder LIBO Rate Loans of such Type.
If, as a result of this Section 2.1, any Loan of any Lender that would otherwise
be made or maintained as or converted into a LIBO Rate Loan for any Interest
Period is instead made or maintained as or converted into a Prime Rate Loan,
then, unless the corresponding Loan of each of the other Lenders is also to be
made or maintained as or converted into a Prime Rate Loan, such Loan shall be
treated as being a LIBO Rate Loan of such Type for such Interest Period for all
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purposes of this Agreement (including the timing, application and proration
among the Lenders of interest payments, conversions and prepayments) except for
the calculation of the interest rate borne by such Loan. The Administrative
Agent shall promptly notify Borrower and each Lender of the existence or
occurrence of any condition or circumstance specified in clause (a) or (b)
above, and each Lender shall promptly notify Borrower and the Administrative
Agent of the existence, occurrence or termination of any condition or
circumstance specified in clause (c) or (d) above applicable to such Lender's
Loans, but the failure by the Administrative Agent or such Lender to give any
such notice shall not affect such Lender's rights hereunder.
2.2 Regulatory Changes. If in the determination of any Lender (a) any
Regulatory Change shall actually directly or indirectly
(i) reduce the amount of any sum received or receivable by such
Lender with respect to any LIBO Rate Loan or the return to be earned by such
Lender on any LIBO Rate Loan,
(ii) impose a cost on such Lender or any Affiliate of such
Lender that is attributable to the making or maintaining of, or such ▇▇▇▇▇▇'s
commitment to make or acquire, any LIBO Rate Loan,
(iii) require such Lender or any Affiliate of such Lender to
make any payment on or calculated by reference to any amount received by such
Lender in respect of its LIBO Rate Loans or its obligations to make LIBO Rate
Loans, or
(iv) reduce, or have the effect of reducing, the rate of return
on any capital such Lender or any Affiliate of such Lender is required to
maintain on account of any LIBO Rate Loan or such Lender's commitment to make
any LIBO Rate Loan
and (b) such reduction, increased cost or payment shall not be fully compensated
for by an adjustment in the applicable rates of interest payable under the Loan
Documents, then the Borrower shall pay to such Lender such additional amounts as
such Lender determines will fully compensate it for such reduction, increased
cost or payment. Such additional amounts shall be payable, in the case of those
applicable to prior periods, within 15 Business Days after request for such
payment by such Lender, accompanied by the certificate described in Section 2.5
(Determinations) and, in the case of those applicable to future periods, on the
dates specified, or determined in accordance with a method specified, by such
Lender, provided that the Borrower shall not be liable for any amount payable
with respect to any period more than 90 days before the date of such request or
certificate, or, if earlier the retroactive effective date of the Regulatory
Change if such Regulatory Change occurs during such 90-day period.
2.3 Capital And Reserve Requirements. If, in the determination of any
Lender, such Lender or any Affiliate thereof is required, under applicable Law
(including Regulation D), or interpretations, directives, requests and
governmental or regulatory guidelines (whether or not having the force of law),
to maintain capital or deposit any reserve on account of any Loan, or any
commitment to make any Loan, or to participate in any Letter of Credit then,
upon request by such Lender, the Borrower shall pay to such Lender such
additional amounts as such Person determines will fully compensate it for any
actual reduction in the rate of return on the capital that such Lender or such
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Affiliate thereof is so required to maintain. Such additional amounts shall be
payable, in the case of those applicable to prior periods, within 15 Business
Days after request by such Lender for such payment accompanied by the
certificate described in Section 2.5 (Determinations) (provided that the
Borrower shall not be liable for any amount payable with respect to any period
more than 90 days before the date of such request or certificate, or, if
earlier, the retroactive effective date of such determination if made during
such 90-day period), and, in the case of those relating to future periods, on
the dates specified, or determined in accordance with a method specified, by
such Lender.
2.4 Breakage. The Borrower shall pay to each Lender, upon request, such
amount as such Lender reasonably determines is necessary to compensate it for
any actual loss, cost or expense incurred by it as a result of (a) any payment,
prepayment or conversion of a LIBO Rate Loan on a date other than the last day
of an Interest Period for such LIBO Rate Loan or (b) a LIBO Rate Loan for any
reason (other than due to the action or inaction of the Administrative Agent or
Lenders) not being made or converted, or any payment of principal thereof or
interest thereon not being made, on the date determined therefor in accordance
with the applicable provisions of this Agreement. At the election of such
Lender, and without limiting the generality of the foregoing, but without
duplication, such compensation on account of losses may include an amount equal
to the excess of (i) the interest that would have been received from the
Borrower under this Agreement during the remainder of the applicable Interest
Period over (ii) the interest component of the return that such Lender
determines it could have obtained had it placed such amount on deposit in the
interbank Dollar market for a period equal to such remaining portion of the
Interest Period.
2.5 Determinations. In making the determinations contemplated by this
Article 2, each Lender shall make such estimates, assumptions, allocations and
the like that such Person in good faith determines to be appropriate, and such
Person's selection thereof in accordance with this Section 2.5, and the
determinations made by such Person on the basis thereof, shall be final, binding
and conclusive upon the Borrower, except, in the case of such determinations,
for manifest errors. Each Lender shall furnish to the Borrower, at the time of
any request for compensation under Section 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements), a certificate outlining in reasonable detail
the computation of any amounts claimed by it under this Article 2 and the
assumptions underlying such computations, which shall include a statement of an
officer of such Person certifying that such request for compensation is being
made pursuant to a policy adopted by such Person to seek such compensation
generally from customers similar to the Borrower and having similar provisions
in agreements with such Person.
2.6 Replacement Of Lenders. If any Lender requests compensation
pursuant to Sections 1.12 (Taxes on Payments), 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements), or such Lender's obligation to make or
continue Loans as LIBO Rate Loans shall be suspended pursuant to Section 2.1
(Mandatory Suspension and Conversion of LIBO Rate Loans) or such Lender has
defaulted on its obligations to make or participate in Loans pursuant to Section
1.2 (Manner of Borrowing), Borrower, upon three (3) Business Days' notice, may
require that such Lender transfer all of its right, title and interest under
this Agreement, such ▇▇▇▇▇▇'s Notes, if any, and the other Loan Documents to any
Eligible Institution identified by Borrower subject to
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(a) the consent of the Administrative Agent (which consent shall
not be unreasonably withheld),
(b) satisfaction of the other conditions specified in Section 11.9
(Successors and Assigns) below,
(c) the agreement of the proposed transferee to assume all of the
obligations of such Lender hereunder and under the other Loan Documents for
consideration equal to the outstanding principal amount of such ▇▇▇▇▇▇'s Loans,
interest thereon to the date of such transfer, and all other amounts payable
hereunder to such Lender to the date of transfer,
(d) such transferor Lender shall have been paid on or prior to the
date of such transfer all fees and other amounts payable to such transferor
hereunder including those amounts payable under said Sections 1.12 (Taxes on
Payments), 2.2 (Regulatory Changes) or 2.3 (Capital and Reserve Requirements),
as applicable (and including any fees accrued hereunder and any amounts that
would be payable under Section 2.4 (Breakage) as if all of such Lender's Loans
were being prepaid in full on such date) or arrangements reasonably satisfactory
to the transferor Lender shall have been made for such payments, and
(e) satisfaction of the condition that if the Lender being replaced
has requested compensation pursuant to Sections 1.12(Taxes on Payments), 2.2
(Regulatory Changes) or 2.3 (Capital and Reserve Requirements), the proposed
transferee's aggregate requested compensation, if any, pursuant to Sections
1.12(Taxes on Payments), 2.2 (Regulatory Changes) or 2.3 (Capital and Reserve
Requirements) with respect to such replaced Lender's Loans is lower than that of
the Lender replaced.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements of the Borrower contained in Sections 1.12 (Taxes on
Payments), 2.2 (Regulatory Changes), 2.3 (Capital and Reserve Requirements), 2.4
(Breakage), 11.12 (Indemnification) and 11.12 (Expenses) (without duplication of
any payments made to such Lender by the Borrower or the proposed transferee)
shall survive for the benefit of any Lender replaced under this Section 2.6 with
respect to the time prior to such replacement.
2.7 Change Of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Sections 1.12 (Taxes on
Payments), 2.1 (Mandatory Suspension and Conversion of LIBO Rate Loans), 2.2
(Regulatory Changes) or 2.3 (Capital and Reserve Requirements) with respect to
such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event, provided that such
designation is made on such terms that such Lender and its lending office suffer
no material economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 2.7 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Section 1.12
(Taxes on Payments), 2.1 (Mandatory Suspension and Conversion of LIBO Rate
Loans), 2.2 (Regulatory Changes) or 2.3 (Capital and Reserve Requirements).
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ARTICLE III
CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND FUNDINGS
3.1 Conditions To Initial Loans. The effectiveness of this Agreement
(other than this Article 3) and the obligation of the Lenders to make Loans and
of the Issuer to issue and maintain Letters of Credit on the Closing Date are
subject to the satisfaction, prior to or concurrently with the Closing Date, of
the following conditions precedent in each case to the satisfaction of the
Administrative Agent, in addition to the conditions precedent set forth in
Section 3.2 hereof (Conditions to All Loans):
(a) Agreement; Note. The Administrative Agent shall have received
this Agreement, Term Notes and RC Notes, in the form of Exhibits A-1 and A-2
hereto, each duly executed on behalf of ▇▇▇▇▇▇▇▇.
(b) Subsidiary Guaranty. The Administrative Agent shall have
received Guaranties in the form of Exhibit G attached hereto (each such
agreement, as it may be further amended, modified or supplemented from time to
time, a "Subsidiary Guaranty") duly executed and delivered on behalf of each of
the Guarantors.
(c) Certain Security Documents Pertaining to Personal Property. The
Administrative Agent shall have received the following documents (as amended,
modified or supplemented from time to time, each a "Security Document" and
collectively the "Security Documents"), each of which shall be in form and
substance satisfactory to the Administrative Agent (except for the certificates
representing the stock certificates and other instruments pledged pursuant to
such Security Documents and the stock powers delivered in connection therewith):
(i) Executed copies of each of the following:
(A) Second Amended and Restated Security Agreement, duly
executed on behalf of the Borrower and each Guarantor, in substantially the form
of Exhibit E attached hereto (such agreement as it may be further amended,
modified or supplemented from time to time, the "Security Agreement").
(B) Second Amended and Restated Stock Pledge Agreements,
duly executed on behalf of the Borrower and each Guarantor owning stock in a
U.S. Restricted Subsidiary or a First Tier Foreign Subsidiary, in substantially
the form of Exhibit F attached hereto (such agreements as they may be further
amended, modified or supplemented from time to time, the "Stock Pledge
Agreements").
(ii) Original certificates and instruments representing the
stock certificates and other instruments pledged pursuant to such Security
Documents, accompanied by duly executed instruments of transfer or assignments
in blank.
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(iii) Evidence of the completion of all recordings and filings
of or with respect to, and of all other actions with respect to, the above
Security Documents as may be necessary or, in the opinion of the Administrative
Agent, desirable to create or perfect the Liens created or purported to be
created by such Security Documents as valid, continuing and perfected Liens in
favor of the Administrative Agent securing the Obligations, prior to all other
Liens other than Permitted Liens; and evidence of the payment of any necessary
fee, tax or expense relating to such recording or filing. Without limitation of
the foregoing, the Administrative Agent shall receive:
(A) Financing statements or amendments thereto, and UCC
"in-lieu" statements, deemed necessary or desirable by Administrative Agent to
create, perfect or continue such Liens in favor of Citizens Bank of Pennsylvania
as Administrative Agent and representative of the Lenders.
(iv) Waivers of landlord's liens, warehouseman's liens and
similar rights, to the extent requested by the Administrative Agent.
(v) Evidence that all other actions necessary or, in the
opinion of the Administrative Agent, desirable to create, perfect or protect the
Liens created or purported to be created by the above Security Documents have
been taken.
(vi) A recent search of UCC, federal tax, and judgment dockets
and records and other appropriate registers (the scope of such search to be
satisfactory to Agent) shall have revealed no filings or recordings in effect
with respect to the Collateral purported to be covered by the above Security
Documents, except such as are acceptable to the Administrative Agent (it being
understood that such acceptance does not limit the obligations of the Borrower
and Guarantors with respect to the priority of the Liens in favor of the
Lenders), and the Administrative Agent shall have received a copy of the search
reports received as a result of the search and of the acknowledgment copies of
the financing statements or other instruments required to be filed or recorded
pursuant to this subsection bearing evidence of the recording of such statements
or instruments at each of such filing or recording places.
(d) Capitalization, Etc. The corporate and capital structure of the
Borrower and each Restricted Subsidiary shall be reasonably satisfactory to the
Administrative Agent.
(e) Corporate Proceedings. The Administrative Agent shall have
received certificates by the Secretary or Assistant Secretary of ▇▇▇▇▇▇▇▇ and
each Guarantor dated as of the Closing Date as to (i) true copies of the
articles of incorporation and by-laws (or other constituent documents) of each
such Person in effect on such date (which, in the case of articles of
incorporation or other constituent documents filed or required to be filed with
the Secretary of State or other Governmental Authority in its jurisdiction of
incorporation, shall be certified to be true, correct and complete by such
Secretary of State or other Governmental Authority not more than 30 days before
the Closing Date) or certificates from a Responsible Officer of the Borrower and
each Guarantor stating that the articles of incorporation and bylaws of such
Person have not been amended or modified since furnished to the Administrative
Agent in connection with the Existing Credit Agreement, (ii) true copies of all
corporate action taken by each such Person relative to this Agreement and the
other Loan Documents and (iii) the incumbency and signature of the respective
officer of each such Person executing this Agreement and the other Loan
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Documents, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Administrative Agent shall have received
certificates from the appropriate Secretaries of State or other applicable
Governmental Authorities dated within an acceptable period prior to the Closing
Date showing the good standing of the Borrower and each Guarantor in its state
of incorporation and state in which its chief executive office is located and,
if and to the extent required by the Administrative Agent, in each state in
which each such Person maintains material assets or conducts material
operations.
(f) Insurance. The Administrative Agent shall have received a
report from the insurance broker of the Borrower and Guarantors, addressed to
the Administrative Agent, satisfactory in form and substance to the
Administrative Agent, as to insurance matters pertaining to each such Person.
The Administrative Agent shall have received evidence satisfactory to it that
the insurance policies required by this Agreement and the other Loan Documents
have been obtained, containing the endorsements required hereby and thereby.
(g) Financial Statements. The Administrative Agent shall have
received copies of the financial statements and other information referred to in
Section 4.1 (Representations and Warranties) hereof.
(h) Legal Opinions of Counsel. The Administrative Agent shall have
received an opinion addressed to the Lenders, dated the Closing Date, of Blank
Rome LLP, counsel to the Borrower and Guarantors, in form and substance
satisfactory to the Administrative Agent and its counsel (which will be
substantially the same as the opinion issued in connection with the Existing
Credit Agreement, with appropriate additional provisions which address the
transactions described herein and revisions to the UCC).
(i) Responsible Officer Certificates. The Administrative Agent
shall have received certificates from a Responsible Officer of the Borrower and
each Guarantor as to such matters as the Administrative Agent may request.
(j) Fees, Expenses, etc. All fees, interest, expenses and other
amounts required to be paid to the Administrative Agent on behalf of the Lenders
under the Existing Credit Agreement, this Credit Agreement, or any other written
agreement on or prior to the Closing Date shall have been paid or received.
(k) Management Letters. The Administrative Agent shall have
received copies of the management letters issued by ▇▇▇▇▇▇▇▇'s certified public
accountants in connection with its audited financial statements dated December
31, 2002 or a letter from such accountants that no such management letters were
issued.
(l) No Material Adverse Effect. The Responsible Officer of ▇▇▇▇▇▇▇▇
and each Guarantor shall provide the Administrative Agent with a certificate
stating that since March 31, 2003, there has not occurred, or been threatened,
any event, act or condition which could have a Material Adverse Effect.
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(m) NCPM/NCOG Credit Agreement. The Administrative Agent shall have
received a copy of the second amendment to the NCPM/NCOG Credit Agreement and
the NCPM/NCOG Note, together with all documents and instruments executed and/or
delivered in connection therewith, and together with all schedules, amendments
and supplements thereto, certified by Borrower to be true, correct and complete,
and all of the foregoing shall be in form and substance satisfactory to the
Administrative Agent.
(n) Additional Matters. All corporate and other proceedings, and
all documents, instruments and other matters in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent.
3.2 Conditions To All Loans. The obligation of the Lenders to make any
Loan and of the Issuer to issue any Letter of Credit is subject to performance
by the Borrower and each Restricted Subsidiary of its obligations to be
performed hereunder or under the other Loan Documents on or before the date of
such Loan or Letter of Credit, satisfaction of the conditions precedent set
forth herein and in the other Loan Documents and to satisfaction of the
following further conditions precedent:
(a) Notice. Appropriate notice of such Loan or request for a Letter
of Credit, as applicable shall have been given by the Borrower to the
Administrative Agent as provided in Article 1 hereof.
(b) Representations and Warranties. Each of the representations and
warranties made by Borrower in Article 4 hereof shall be true and correct in all
material respects on and as of such date as if made on and as of such date, both
before and after giving effect to the Loans or the issuance of the Letter of
Credit requested to be made on such date (except to the extent the
representations expressly refer to an earlier period).
(c) No Defaults. No Event of Default or Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(d) No Violations of Law, etc. Neither the making nor use of the
Loans nor issuance of any Letter of Credit shall cause the Lenders to violate or
conflict with any Law.
(e) No Material Adverse Effect. There shall not have occurred, or
be threatened, any other event, act or condition which could have a Material
Adverse Effect since the date of the Borrower's most recent financial statements
delivered to the Administrative Agent.
Each request by Borrower for any Loan or for the issuance of a
Letter of Credit shall constitute a representation and warranty by Borrower that
the conditions set forth in this Section 3.2 have been satisfied as of the date
of such request. Failure of the Administrative Agent to receive notice from the
Borrower to the contrary before such Loan is made shall constitute a further
representation and warranty by the Borrower that the conditions referred to in
this Section 3.2 have been satisfied as of the date such Loan is made.
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3.3 Closing Date Funding Matters. Notwithstanding anything in this
Agreement to the contrary, each of the parties agree that on the Closing Date
there may be certain Loans made or repaid in a manner that is not ratable among
the Lenders in order to effect the purposes hereof to pay off or pay down
certain Lenders under the Existing Credit Agreement and cause the Lenders under
this Agreement to have such amounts of outstanding Loans as are contemplated
hereby. To the extent Interest Periods for any LIBO Rate Loans outstanding under
the Existing Credit Agreement have not expired as of the Closing Date, and the
Lender relating to such LIBO Rate Loan is a Lender hereunder, the parties will,
if practicable and approved by the Administrative Agent, make arrangements for
pay off of each such LIBO Rate Loan in a manner reasonably designed to minimize
expense to the Borrower under Section 2.4 (Breakage).
3.4 Closing Date Releases. Notwithstanding anything in this Agreement
to the contrary, each of the parties agree that on the Closing Date the
Administrative Agent shall have the authority and discretion to take such
actions and enter into such documents, instruments and agreements as it may deem
necessary or advisable to effectuate the termination of the Subfacility
Commitment and Subfacility Loans (each as defined in the Existing Credit
Agreement) and release of guarantees, subordinations and collateral security
therefor, as contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations And Warranties. The Borrower hereby represents and
warrants to the Lenders as follows:
(a) Corporate Status; Subsidiaries. The Borrower and each of its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each such Person
has corporate power and authority to own its property and transact the business
in which it is engaged or presently proposes to engage. The Borrower and each of
its Restricted Subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing (or foreign equivalent, if such exists) in
all jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary or advisable except where
the failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect. Schedule 4.1(a) hereof states as of the date hereof (i)
the jurisdiction of incorporation of the Borrower and each of its Subsidiaries,
(ii) the jurisdictions in which the Borrower and each Guarantor is qualified to
do business as a foreign corporation except where the failure to be so qualified
would not reasonably be expected to have a Material Adverse Effect, (iii) as to
each Subsidiary, whether it is a Restricted Subsidiary or an Unrestricted
Subsidiary, and (iv) as to each Subsidiary which is a Restricted Subsidiary,
whether it is a Guarantor. Borrower shall, promptly upon any change in fact set
forth therein, or upon request therefor from the Administrative Agent, provide
to the Administrative Agent a certified copy of an updated Schedule 4.1(a),
which upon approval by the Administrative Agent shall be deemed annexed hereto.
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(b) Corporate Power and Authorization. The Borrower and each
Guarantor has corporate power and authority to execute, deliver, perform, and
take all actions contemplated by each Loan Document to which it is a party, and
all such action has been duly and validly authorized by all necessary corporate
proceedings on its part. Without limitation of the foregoing, the Borrower and
each Guarantor has the corporate power and authority to borrow or to guaranty
the borrowings, as applicable, pursuant to the Loan Documents to the fullest
extent permitted hereby and thereby from time to time, and has taken all
necessary corporate action to authorize such borrowings or guaranty, as
applicable.
(c) Execution and Binding Effect. This Agreement and each other
Loan Document to which the Borrower or any Guarantor is a party has been duly
and validly executed and delivered by each such Person. This Agreement, and each
other Loan Document constitute, the legal, valid and binding obligation of each
such Person, enforceable against each such Person in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws of general application affecting the enforcement of
creditors' rights or by general principles of equity limiting the availability
of equitable remedies.
(d) Governmental Approvals and Filings. Except for filings which
have been duly made (or are being made on the Closing Date) pursuant to the
Security Documents, no approval, order, consent, authorization, certificate,
license, permit or validation of, or exemption or other action by, or filing,
recording or registration with, or notice to, any Governmental Authority
(collectively, "Governmental Action") is or will be necessary or advisable in
connection with the execution and delivery of any Loan Document, consummation of
the transactions herein or therein contemplated, performance of or compliance
with the terms and conditions hereof or thereof or to ensure the legality,
validity, binding effect, enforceability or admissibility in evidence hereof or
thereof, provided that Borrower may be required to file certain of the Loan
Documents with the Securities and Exchange Commission.
(e) Absence of Conflicts. Neither the execution and delivery of any
Loan Document, nor consummation of the transactions herein or therein
contemplated, nor performance of or compliance with the terms and conditions
hereof or thereof does or will
(i) violate or conflict with any Law, or
(ii) violate, conflict with or result in a breach of any term
or condition of, or constitute a default under, or result in (or give rise to
any right, contingent or otherwise, of any Person to cause) any termination,
cancellation, prepayment or acceleration of performance of, or result in the
creation or imposition of (or give rise to any obligation, contingent or
otherwise, to create or impose) any Lien upon any property of the Borrower or
any Restricted Subsidiary (except for any Lien in favor of the Lender securing
the Obligations) pursuant to, or otherwise result in (or give rise to any right,
contingent or otherwise, of any Person to cause) any change in any right, power,
privilege, duty or obligation of the Borrower or any Restricted Subsidiary under
or in connection with,
(A) the articles of incorporation or by-laws (or other
constituent documents) of the Borrower or any Restricted Subsidiary,
(B) any agreement or instrument creating, evidencing or
securing any Indebtedness to which the Borrower or any Restricted Subsidiary is
a party or by which any of them or any of their respective properties (now owned
or hereafter acquired) may be subject or bound, excluding in the case of
violations, conflicts or the like under this clause (B), those violations or
conflicts which are not material in nature, or
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(C) any other material agreement or instrument to which
the Borrower or any Restricted Subsidiary is a party or any of its properties
(now owned or hereafter acquired) may be subject or bound, excluding in the case
of violations, conflicts or the like under this clause (C), those violations or
conflicts which are not material in nature.
(f) Audited Financial Statements. The Borrower has heretofore
furnished to the Administrative Agent financial statements for ▇▇▇▇▇▇▇▇ and its
consolidated Subsidiaries as of December 31, 2002 and the related statements of
income, cash flows and changes in stockholders' equity for the fiscal year then
ended, as examined and reported on by ▇▇▇▇▇ & Young LLP, who delivered an
unqualified opinion in respect thereof. The financial statements present fairly
the financial condition of the Borrower and its consolidated Subsidiaries, as of
the end of such fiscal year, and the results of operations and cash flows for
such consolidated group the fiscal year then ended, all in conformity with GAAP.
(g) Interim Financial Statements. The Borrower has heretofore
furnished to the Administrative Agent interim company prepared financial
statements for the Borrower and its consolidated Subsidiaries, dated March 31,
2003 for the fiscal quarter then ending. Such financial statements present
fairly the financial condition of the Borrower and its consolidated
Subsidiaries, as of the end of such fiscal quarter and the results of operations
and cash flows for such consolidated group for such fiscal quarter, all in
conformity with GAAP, subject to normal and recurring year-end audit
adjustments, except that such interim financial statements do not contain
footnotes.
(h) Absence of Undisclosed Liabilities. Neither the Borrower nor
any Restricted Subsidiary has any liability or obligation of any nature whatever
(whether absolute, accrued, contingent or otherwise, whether or not due),
forward or long-term commitments or unrealized or anticipated losses from
unfavorable commitments, except (w) as disclosed in the financial statements
referred to in Sections 4.1(f) and (g) hereof, (x) matters that, individually or
in the aggregate, could not have a Material Adverse Effect, (y) as disclosed in
Schedule 4.1(h) hereof, and (z) liabilities, obligations, commitments and losses
incurred after December 31, 2002 in the ordinary course of business and
consistent with past practices.
(i) Absence of Material Adverse Changes. Since March 31, 2003,
there has been no change in the business, operations, or condition (financial or
otherwise) of the Borrower or any Restricted Subsidiary that could reasonably be
expected to have a Material Adverse Effect.
(j) Accurate and Complete Disclosure. All information (taken as a
whole) heretofore, contemporaneously or hereafter provided (orally or in
writing) by the Borrower or any Restricted Subsidiary to the Administrative
Agent pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby is or will be (as the case may be) true and
accurate in all material respects on the date as of which such information is
dated (or, if not dated, when received by the Administrative Agent as the case
may be) and does not or will not (as the case may be) omit to state any material
fact necessary to make such information (taken as a whole) not misleading at
such time in light of the circumstances in which it was provided. The Borrower
has disclosed to the Administrative Agent in writing every fact or circumstance
which has, or which could reasonably be expected to have, a Material Adverse
Effect.
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(k) Solvency. On and as of the Closing Date, and after giving
effect to all Loans and other obligations and liabilities being incurred on such
date in connection therewith, and on the date of each subsequent Loan or other
extension of credit hereunder and after giving effect to application of the
proceeds thereof in accordance with the terms of the Loan Documents, the
Borrower and Guarantors on a consolidated basis are and will be Solvent.
(l) Margin Regulations. No part of the proceeds of any Loan
hereunder will be used for the purpose of buying or carrying any "margin stock,"
as such term is used in Regulation U of the Board of Governors of the Federal
Reserve System, as amended from time to time, or to extend credit to others for
the purpose of buying or carrying any "margin stock". Neither the Borrower nor
any Restricted Subsidiary is engaged in the business of extending credit to
others for the purpose of buying or carrying "margin stock". Neither the
Borrower nor any Restricted Subsidiary owns any "margin stock". Neither the
making of any Loan nor any use of proceeds of any such Loan will violate or
conflict with the provisions of Regulation T, U or X of the Board of Governors
of the Federal Reserve System, as amended from time to time.
(m) Partnerships, Etc. Except as set forth on Schedule 4.1(m),
neither the Borrower nor any Restricted Subsidiary is a partner (general or
limited) of any partnership, is a party to any joint venture, or owns
(beneficially or of record) any equity or similar interest in any non-Subsidiary
Person (including but not limited to any interest pursuant to which the Borrower
or any Restricted Subsidiary has or may in any circumstance have an obligation
to make capital contributions to, or be generally liable for or on account of
the liabilities, acts or omissions of such other Person).
(n) [Intentionally Omitted].
(o) Ownership and Control. Schedule 4.1(o) hereof states as of the
date hereof the authorized capitalization of the Borrower and each Restricted
Subsidiary, the number of shares of each class of capital stock issued and
outstanding of each such Person and the number and percentage of outstanding
shares of each such class of capital stock and the names of the record owners of
such shares and the direct or indirect beneficial owners of such shares (except
that for Borrower the listing shall include only the names of any parties
beneficially owning, individually or through affiliates, more than 5% of
Borrower's stock). The outstanding shares of capital stock of the Borrower and
each Restricted Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable. Except as described in Schedule 4.1(o), there are
no options, warrants, calls, subscriptions, conversion rights, exchange rights,
preemptive rights or other rights, agreements or arrangements (contingent or
otherwise) which may in any circumstances now or hereafter obligate Borrower to
issue any shares of its capital stock or any other securities.
(p) Litigation. All pending actions, suits, proceedings or known
investigations which could reasonably be expected to result in liability not
covered by insurance in an amount equal to or greater than $1,000,000.00 are
disclosed on Schedule 4.1(p). To the best of ▇▇▇▇▇▇▇▇'s knowledge after due
inquiry, there is no pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against the Borrower or
any Restricted Subsidiary which could reasonably be expected to cause a Material
Adverse Effect.
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(q) Absence of Events of Default. No event has occurred and is
continuing and no condition exists which constitutes an Event of Default or
Default.
(r) Absence of Other Conflicts. Neither the Borrower nor any
Restricted Subsidiary is in violation of or conflict with, or is subject to any
contingent liability on account of any violation of or conflict with:
(i) other than violations or conflicts which are not material
in nature, any Law to the best of ▇▇▇▇▇▇▇▇'s knowledge, after due inquiry,
(ii) its articles of incorporation or by-laws (or other
constituent documents), or
(iii) other than violations or conflicts which are not material
in nature, any material agreement or instrument or arrangement to which it is
party or by which it or any of its properties (now owned or hereafter acquired)
may be subject or bound.
(s) Insurance. The Borrower and each Restricted Subsidiary
maintains with financially sound and reputable insurers insurance with respect
to its properties and business and against at least such liabilities, casualties
and contingencies and in at least such types and amounts as is customary in the
case of corporations engaged in the same or a similar business or having similar
properties similarly situated. Schedule 4.1(s) hereof sets forth a list of all
such insurance currently maintained by the Borrower and each Guarantor, setting
forth the identity of the insurance carrier, the type of coverage, the amount of
coverage and the deductible.
(t) Title to Property. The Borrower and each Restricted Subsidiary
has good and marketable title in fee simple to all real property owned or
purported to be owned by it and good title to all other property of whatever
nature owned or purported to be owned by it, including but not limited to all
property reflected in the most recent audited balance sheet referred to in
Section 4.1(f) hereof or submitted pursuant to Section 5.1(a) hereof, as the
case may be (except as sold or otherwise disposed of in the ordinary course of
business or as otherwise permitted hereunder after the date of such balance
sheet), in each case free and clear of all Liens, other than Permitted Liens.
(u) Intellectual Property. The Borrower and each Restricted
Subsidiary owns, or is licensed or otherwise has the right to use, all the
patents, trademarks, service marks, names (trade, service, fictitious or
otherwise), copyrights, technology (including but not limited to computer
programs and software), processes, data bases and other rights, free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without material conflict with the rights of others. Except as
described in Schedule 4.1(u), neither the Borrower nor any Guarantor as of the
Closing Date owns any patents, trademarks or copyrights.
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(v) Taxes. All tax and information returns required to be filed by
or on behalf of the Borrower and each Restricted Subsidiary have been properly
prepared, executed and filed. All taxes, assessments, fees and other
governmental charges upon the Borrower and each Restricted Subsidiary or upon
any of their respective properties, incomes, sales or franchises which are due
and payable have been paid other than those not yet delinquent and payable
without premium or penalty, and except for those being diligently contested in
good faith by appropriate proceedings, and in each case adequate reserves and
provisions for taxes have been made on the books of each such Person. The
reserves and provisions for taxes on the books of the Borrower and each
Restricted Subsidiary are adequate for all open years and for its current fiscal
period. Neither the Borrower nor any Restricted Subsidiary has knowledge of any
proposed additional assessment or basis for any additional assessment greater
than $750,000 for additional taxes (whether or not reserved against).
(w) Employee Benefits. Except as set forth on Schedule 4.1(w),
neither the Borrower nor any Guarantor as of the Closing Date has a Plan or
Plans.
(x) Environmental Matters.
(i) The Borrower and its Restricted Subsidiaries, and each of
their respective Environmental Affiliates, is and has been in full compliance
with all applicable Environmental Laws, except for (x) matters set forth in
Schedule 4.1(x) hereof and (y) matters which, individually or in the aggregate,
could not have a Material Adverse Effect. There are to the Borrower's knowledge
after due inquiry no circumstances that may prevent or interfere with such full
compliance in the future.
(ii) The Borrower and its Restricted Subsidiaries, and each of
their respective Environmental Affiliates, has all Environmental Approvals
necessary or desirable for the ownership and operation of their respective
properties, facilities and businesses as presently owned and operated and as
presently proposed to be owned and operated, except for (x) matters set forth in
Schedule 4.1(x) hereof and (y) matters which, individually or in the aggregate,
could not have a Material Adverse Effect.
(iii) There is no Environmental Claim pending or, to the
knowledge of Borrower after due inquiry, threatened, and there are no past or
present acts, omissions, events or circumstances that could form the basis of
any Environmental Claim, against the Borrower or any of its Restricted
Subsidiaries or any of their respective Environmental Affiliates, except for (x)
matters set forth in Schedule 4.1(x) hereof, and (y) matters which, if adversely
decided, individually or in the aggregate, could not have a Material Adverse
Effect.
(iv) No facility or property now or previously owned, operated
or leased by the Borrower or any of its Restricted Subsidiaries or any of their
respective Environmental Affiliates is an Environmental Cleanup Site. Neither
the Borrower nor any of its Restricted Subsidiaries nor any of their respective
Environmental Affiliates has directly transported or directly arranged for the
transportation of any Environmental Concern Materials to any Environmental
Cleanup Site. No Lien exists, and to Borrower's knowledge no condition exists
which could result in the filing of a Lien, against any property of the Borrower
or any of its Restricted Subsidiaries or any of their respective Environmental
Affiliates under any Environmental Law.
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(y) Business Interruptions. Within two (2) years prior to the
Closing Date, none of the business, property or operations of the Borrower or
any Restricted Subsidiary has been materially and adversely affected in any way
by any casualty, strike, lockout, combination of workers, order of the United
States of America, or any state or local government, or any political
subdivision or agency thereof, directed against such Person. To the best of
▇▇▇▇▇▇▇▇'s knowledge, there are no pending or threatened labor disputes,
strikes, lockouts or similar occurrences or grievances against the business
being operated by the Borrower or any Restricted Subsidiary.
(z) Names. In the five (5) years prior to the Closing Date, neither
the Borrower nor any Guarantor has conducted business under or used any names
(whether corporate or assumed) except for its present corporate name and those
names listed in Schedule 4.1(z) attached hereto (which list shall be organized
by each such Person's true, legal name) and made a part hereof. The Borrower and
each Guarantor is the sole owner of its name and any and all business done and
all invoices using such name or any names listed in Schedule 4.1(z) represent
sales and business of such Person and are owned solely by such Person.
(aa) Regulation O. No director, executive officer or principal
shareholder of the Borrower or any Restricted Subsidiary is a director,
executive officer or principal shareholder of any Lender. For the purposes
hereof the terms "director" (when used with reference to any Lender), "executive
officer" and "principal shareholder" have the respective meanings assigned
thereto in Regulation O issued by the Board of Governors of the Federal Reserve
System.
4.2 Representations And Warranties Absolute. The representations and
warranties of the Borrower set forth in this Article 4 are unaffected by any
prior or subsequent investigation by, or knowledge of, the Administrative Agent
or any Lender.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Loan shall remain unpaid, any Letter of Credit is
outstanding or any Lender shall have any Commitment under this Agreement,
Borrower shall comply, and shall cause each other Person(s) specified to comply,
with the following covenants:
5.1 Basic Reporting Requirements.
(a) Annual Audit Reports. As soon as practicable, and in any event
within 90 days after the close of each fiscal year of the Borrower, the Borrower
shall furnish to the Administrative Agent and each of the Lenders consolidated
statements of income, cash flows and changes in stockholders' equity of the
Borrower and its consolidated Subsidiaries for such fiscal year and a
consolidated balance sheet of the Borrower and its Subsidiaries as of the close
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of such fiscal year, and notes to each, all in reasonable detail, setting forth
in comparative form the corresponding figures for the preceding fiscal year,
together with all management letters issued, or letters stating that no
management letters are being issued, in connection therewith. Such financial
statements shall be accompanied by an opinion of ▇▇▇▇▇ & Young LLP or other
independent certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Administrative
Agent. A copy of the opinion of such accountants shall be delivered to the
Administrative Agent and each of the Lenders and signed by such accountants.
Such opinion shall be free of exceptions or qualifications not acceptable to the
Administrative Agent in its reasonable discretion and in any event shall be free
of any exception or qualification which is of "going concern" or like nature or
which relates to a limited scope of examination. Such opinion in any event shall
contain a written statement of such accountants substantially to the effect that
(i) such accountants examined such financial statements in accordance with
generally accepted auditing standards and accordingly made such tests of
accounting records and such other auditing procedures as such accountants
considered necessary under the circumstances and (ii) in the opinion of such
accountants such financial statements present fairly the financial position of
the Borrower and its Subsidiaries as of the end of such fiscal year and the
results of their operations and their cash flows and changes in stockholders'
equity for such fiscal year, in conformity with GAAP. For so long as NCPM is a
consolidated Subsidiary of Borrower, such financial statements shall be
accompanied by unaudited statements of income of the Borrower and its
consolidated Subsidiaries separately showing consolidation of the income
statements of NCPM and the Borrower in conformity with GAAP, duly completed and
signed by the Chief Financial Officer of Borrower.
(b) Quarterly Financial Statements. As soon as practicable but in
any event within 45 days after the end of each quarter, the Borrower shall
furnish to the Administrative Agent and each of the Lenders financial statements
in the form filed with ▇▇▇▇▇▇▇▇'s Form 10-Q filing with the Securities and
Exchange Commission. For so long as NCPM is a consolidated Subsidiary of
Borrower, such financial statements shall be accompanied by unaudited statements
of income of the Borrower and its consolidated Subsidiaries separately showing
the consolidation of the income statements of NCPM and the Borrower in
conformity with GAAP, duly completed and signed by the Chief Financial Officer
of Borrower.
(c) Quarterly Compliance Certificates. The Borrower shall deliver
to the Administrative Agent and each of the Lenders a Quarterly Compliance
Certificate in substantially the form set forth as Exhibit I hereto, duly
completed and signed by the Chief Financial Officer of Borrower concurrently
with the delivery of the financial statements referred to in subsections (a) and
(b). The Quarterly Compliance Certificate shall confirm that the unamortized
remaining invested balance of all acquired delinquent pools of Accounts of
Borrower and its consolidated Subsidiaries does not exceed the then applicable
amount specified in Section 6.13 (Acquired Delinquent Pools of Accounts).
(d) Annual Budget. As soon as practicable, and in any event within
45 days after the start of each fiscal year, the Borrower shall deliver to the
Administrative Agent (for delivery to the Lenders) a consolidated annual budget,
which shall include the annual projections of profit and loss statements,
balance sheets and cash flow reports and for so long as NCPM is a Consolidated
Subsidiary of Borrower, shall separately show the consolidation of the projected
profit and loss statements of NCPM and the Borrower (prepared on an annual
basis) for the succeeding fiscal year, together with a statement of the
assumptions and estimates upon which such projections are based in form and
substance consistent with past practice. The projections shall be accompanied by
a cover letter stating that such projections, estimates and assumptions, as of
the date of preparation thereof, are reasonable, made in good faith, consistent
with the Loan Documents, and represent the Borrower's best judgment as to such
matters.
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(e) Commercial Finance Reports. Within 30 days of a request by the
Administrative Agent, the Borrower shall furnish to the Administrative Agent a
report of a Responsible Officer of the Borrower setting forth information as to
(i) receivables, and (ii) payables (which may include, among other things, a
breakout of aging and payments).
(f) Certain Other Reports and Information. Promptly upon their
becoming available to the Borrower, the Borrower shall deliver to the
Administrative Agent a copy of (i) all regular or special reports, registration
statements and amendments to the foregoing which the Borrower shall file with
the Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) all reports, proxy statements, financial statements
and other information distributed by the Borrower to its stockholders,
bondholders or the financial community generally, and (iii) all accountants'
management letters pertaining to, all other reports submitted by accountants in
connection with any audit of, and all other material reports from outside
accountants with respect to, the Borrower.
(g) Further Information. The Borrower will promptly furnish to the
Administrative Agent or any Lender such other information pertaining to the
business of Borrower and its Subsidiaries and in such form as the Administrative
Agent or any Lender may reasonably request from time to time.
(h) Notice of Certain Events. Promptly upon becoming aware of any
of the following, the Borrower shall give the Administrative Agent notice
thereof, together with a written statement of a Responsible Officer of the
Borrower setting forth the details thereof and any action with respect thereto
taken or proposed to be taken by the Borrower:
(i) Any Event of Default or Default.
(ii) Any material adverse change in the business, operations or
condition (financial or otherwise) of the Borrower, any Restricted Subsidiary or
any Unrestricted Subsidiary.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Borrower or any Restricted Subsidiary, except for matters that if adversely
decided, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(iv) Any material violation, breach or default by the Borrower
or any Restricted Subsidiary under any agreement or instrument which could
reasonably be expected to have a Material Adverse Effect.
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(v) Any material amendment or supplement to, or extension,
renewal, refinancing, or refunding of, or waiver by any other party thereto of
any right under or conditions of, any agreement or instrument creating,
evidencing or securing any Indebtedness of the Borrower or any Restricted
Subsidiary in excess of $500,000.00; any agreement or instrument material to the
business, operations or condition (financial or otherwise) of the Borrower and
Guarantors taken as a whole, and any negotiations pertaining to any of the
foregoing.
(vi) Any Pension-Related Event. Such notice shall be
accompanied by: (A) a copy of any notice, request, return, petition or other
document received by the Borrower or any Restricted Subsidiary or any Controlled
Group Member from any such Person, or which has been or is to be filed with or
provided to any Person (including without limitation the Internal Revenue
Service, PBGC or any Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (B) in the
case of any Pension-Related Event with respect to a Plan, the most recent Annual
Report (5500 Series), with attachments thereto, and the most recent actuarial
valuation report, for such Plan, if not previously provided.
(vii) Any Environmental Claim pending or threatened against the
Borrower or any Restricted Subsidiary, or any past or present acts, omissions,
events or circumstances (including but not limited to any dumping, leaching,
deposition, removal, abandonment, escape, emission, discharge or release of any
Environmental Concern Material at, on or under any facility or property now or
previously owned, operated or leased by the Borrower or any Restricted
Subsidiary that could form the basis of such Environmental Claim, which
Environmental Claim, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(i) Visitation; Verification. Borrower shall, and shall cause each
Restricted Subsidiary to, permit such Persons as the Administrative Agent or any
Lender may designate from time to time to visit and inspect any of the
properties of the Borrower and each Restricted Subsidiary, to examine its books
and records and take copies and extracts therefrom and to discuss its affairs
with its directors, officers, employees and independent accountants at such
times and as often as the Administrative Agent may reasonably request. Borrower
hereby authorizes such officers, employees and independent accountants to
discuss with the Administrative Agent the affairs of the Borrower and the
Restricted Subsidiaries. The Administrative Agent shall have the right to
examine accounts, inventory and other properties and liabilities of the Borrower
and each Restricted Subsidiary from time to time, and Borrower and each
Restricted Subsidiary shall cooperate with the Administrative Agent in such
examination.
5.2 Insurance. The Borrower shall, and shall cause each Restricted
Subsidiary to, maintain insurance covering the properties (including tangible
Collateral) and business against fire, flood, casualty and such other hazards
and risks (including the risk of business interruption from a casualty event) as
may be reasonably acceptable to the Administrative Agent in such amounts, with
such deductibles and with such insurers as may be reasonably acceptable to the
Administrative Agent. In addition:
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(a) Administrative Agent as Loss Payee and Additional Insured. All
casualty insurance policies covering tangible Collateral shall contain standard
Loss Payable Clauses issued in favor of the Administrative Agent for the benefit
of the Lenders under which all losses thereunder shall be paid to the
Administrative Agent for the Lenders as their interests may appear. All other
insurance policies of the Borrower or any Guarantor shall name the
Administrative Agent as an additional insured on behalf of the Lenders as their
interests may appear. Such policies shall expressly provide that the requisite
insurance cannot be altered or canceled without thirty (30) days prior written
notice to the Administrative Agent and shall insure the Lenders notwithstanding
the act or neglect of the insured.
(b) Administrative Agent's Right to Purchase Insurance. In the
event the Borrower or any Guarantor fails to procure or cause to be procured any
such insurance or to timely pay or cause to be paid the premium(s) on any such
insurance, the Administrative Agent may do so for the Borrower or any Guarantor
but each such Person shall continue to be liable for the cost of such insurance.
(c) Disposition of Insurance Proceeds. The Borrower, for itself and
each Guarantor, hereby appoints the Administrative Agent as its
attorney-in-fact, exercisable at the Administrative Agent's option, to endorse
any check which may be payable to the Borrower or any Guarantor in order to
collect the proceeds of such insurance. In the absence of a Default or Event of
Default, the Administrative Agent shall turn over to the Borrower all insurance
proceeds the Administrative Agent receives. The Borrower may use the proceeds
for the repair, reconstruction or replacement of Collateral, toward the
replacement of lost revenues, for working capital, or for any other proper
business purpose; provided that any proceeds that remain unused (i) more than 12
months after the Borrower receives them or (ii) at the time a Default or Event
of Default exists shall be applied immediately as the Majority Lenders may in
their discretion direct, including against the Obligations and as a permanent
reduction of the RC Commitment.
(d) Evidence of Insurance. The Borrower shall, and shall cause each
Guarantor to, promptly furnish to the Administrative Agent from time to time
upon request the policies under which the required insurance is issued,
certificates of insurance, loss payable endorsements, and such other information
relating to such insurance as the Administrative Agent may request, and provide
such other insurance and endorsements as are required by this Agreement and the
other Loan Documents.
5.3 Payment Of Taxes And Other Potential Charges And Priority Claims.
The Borrower shall, and shall cause each Restricted Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties attach thereto, all
taxes, assessments and other governmental charges imposed upon it or any of its
properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons
which, if unpaid, might result in the creation of a Lien upon any such property;
and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such property
or which, if unpaid, might give rise to a claim entitled to priority over
general creditors of the Borrower or any Restricted Subsidiary in a case under
Title 11 (Bankruptcy) of the United States Code, as amended;
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provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced any such Person need not pay or discharge
any such tax, assessment, charge or claim so long as (x) the validity thereof is
contested in good faith and by appropriate proceedings diligently conducted, and
(y) such reserves or other appropriate provisions as may be required by GAAP
shall have been made therefor.
5.4 Preservation Of Corporate Status. The Borrower shall, and shall
cause each Restricted Subsidiary to, maintain its status as a corporation duly
organized, validly existing and in good standing (or foreign equivalent, if such
exists) under the laws of its jurisdiction of incorporation, and, if a failure
to do so by the Borrower or any Guarantor could reasonably be expected to have a
Material Adverse Effect, to be duly qualified to do business as a foreign
corporation and in good standing in all jurisdictions in which the ownership of
its properties or the nature of its business or both make such qualification
necessary, except that Subsidiaries may be dissolved or otherwise disposed of
pursuant to the terms and conditions of Sections 6.9 (Mergers, Acquisitions,
Etc.) and 6.10 (Dispositions of Properties).
5.5 Governmental Approvals And Filings. The Borrower shall, and shall
cause each Restricted Subsidiary to, keep and maintain in full force and effect
all Governmental Actions necessary or advisable in connection with execution and
delivery of any Loan Document, consummation of the transactions herein or
therein contemplated, performance of or compliance with the terms and conditions
hereof or thereof or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence hereof or thereof.
5.6 Maintenance Of Properties. The Borrower shall, and shall cause each
Restricted Subsidiary to, maintain or cause to be maintained in good repair,
working order and condition the properties now or hereafter owned, leased or
otherwise possessed by it and shall make or cause to be made all needful and
proper repairs, renewals, replacements and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
5.7 Avoidance Of Other Conflicts. Neither the Borrower nor any
Restricted Subsidiary shall violate or conflict with, be in violation of or
conflict with, or be or remain subject to any liability (contingent or
otherwise) on account of any violation or conflict with
(a) any Law in a manner which could reasonably be expected to cause
a Material Adverse Effect,
(b) its articles of incorporation or by-laws (or other constituent
documents), or
(c) any material agreement or instrument to which it is a party or
by which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound, with respect to which a violation
or conflict would be materially adverse in nature.
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5.8 Financial Accounting Practices. The Borrower shall, and shall cause
each Restricted Subsidiary to, make and keep books, records and accounts which,
in reasonable detail, accurately and fairly reflect its transactions and
dispositions of its assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are executed
in accordance with management's general or specific authorization, (b)
transactions are recorded as necessary (i) to permit preparation of consolidated
financial statements of the Borrower and its consolidated Subsidiaries in
conformity with GAAP and (ii) to maintain accountability for assets, (c) access
to assets is permitted only in accordance with management's general or specific
authorization and (d) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
5.9 Use Of Proceeds. Subject to the terms and conditions of this
Agreement (including without limitation Section 5.16 (Subsidiaries as Guarantors
and Non-Guarantor Subsidiaries)), the Borrower shall apply the proceeds of all
Loans hereunder only for working capital purposes, Permitted Acquisition
financing and other corporate purposes permitted by this Agreement; provided,
however, that Borrower shall apply the proceeds of the Term Loan and, to the
extent necessary, any RC Loan made on the Closing Date toward the repayment in
full of all costs and expenses accrued through the Closing Date in connection
with the transactions contemplated hereunder and obligations of Borrower owing
to Lenders as of the Closing Date under the Existing Credit Agreement and
related agreements and instruments. The Borrower shall not use the proceeds of
any Loans hereunder directly or indirectly for any unlawful purpose or
inconsistent with any other provision of any Loan Document.
5.10 Continuation Of Or Change In Business. The Borrower shall, and
shall cause each Restricted Subsidiary to, continue to engage in its business
substantially as conducted and operated during the present and preceding fiscal
year, and no such Person shall engage in any other business not substantially
similar to the business as presently conducted.
5.11 Consolidated Tax Return. Neither the Borrower nor any Restricted
Subsidiary shall file or consent to the filing of any consolidated income tax
return with any Person other than the Borrower or a consolidated Subsidiary,
except as required by the Code.
5.12 Fiscal Year. Neither Borrower nor any Restricted Subsidiary shall
change its fiscal year or fiscal quarter.
5.13 Bank Accounts. As additional consideration for the establishment
of the credit facilities hereunder, the Borrower shall, and shall cause each
Guarantor to, maintain its primary depository and disbursement accounts with one
or more Lenders; provided, however, that the Administrative Agent may, in its
discretion, require the execution of a deposit account control agreement, in
form and substance satisfactory to the Administrative Agent, for any such
account not maintained with the Administrative Agent.
5.14 Submission Of Collateral Documents. The Borrower shall, and shall
cause each Guarantor to, promptly, but in no event later than twenty (20) days
following the conversion of an Account in an amount in excess of $1,000,000.00
to an instrument or chattel paper, notify the Administrative Agent if an Account
becomes evidenced or secured by an instrument or chattel paper and, upon request
of the Administrative Agent, promptly deliver any such instrument or chattel
paper to the Lender.
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5.15 Collection Of Accounts. The Borrower shall, and shall cause each
Guarantor to, continue to collect its Accounts in the ordinary course of its
business.
5.16 Subsidiaries As Guarantors and Non-Guarantor Subsidiaries;
Restricted and Unrestricted Subsidiaries.
(a) The Borrower shall cause all of its Subsidiaries, now existing
or hereafter formed or acquired, to at all times be Guarantors hereunder by due
execution and delivery of Subsidiary Guaranties; provided, however, that the
following Subsidiaries are excepted from such requirement (collectively, the
"Non-Guarantor Subsidiaries"): (i) each of its currently existing Subsidiaries
which is not a United States Person (including without limitation the First Tier
Foreign Subsidiaries); (ii) any hereafter formed or acquired Subsidiary which is
not a United States Person, if its delivery of a Subsidiary Guaranty would, in
the reasonable determination of the Borrower, cause an adverse tax consequence
under Section 956 of the Internal Revenue Code as amended ("IRC") or under any
similar law; (iii) each Unrestricted Subsidiary; and (iv) certain other
Subsidiaries approved by the Administrative Agent from time to time pursuant to
paragraph (e) below.
(b) The Borrower shall cause all of its Subsidiaries, now existing
or hereafter formed or acquired, to at all times be Restricted Subsidiaries and
bound by the terms applicable thereto hereunder; provided, however, that the
following Subsidiaries are excepted from such requirement (collectively, the
"Unrestricted Subsidiaries"): (i) NCPM (unless it becomes a Restricted
Subsidiary pursuant to clause (f) below); (ii) all Subsidiaries of NCPM, now
existing or hereafter formed or acquired (unless any such Subsidiary becomes a
Restricted Subsidiary pursuant to clause (f) below); and (iii) certain other
Subsidiaries approved by the Administrative Agent from time to time pursuant to
paragraph (e) below.
(c) Subject to the provisions of paragraph (d) below, the Borrower
shall, and shall cause each Guarantor to, pledge to the Administrative Agent for
the benefit of Lenders all of their assets, including without limitation capital
stock or other equity interests now or hereafter owned in other Persons in each
case and to the extent meeting the definition of "Collateral", which pledge may
be accomplished, in the Administrative Agent's reasonable discretion, either
pursuant to a Security Document or by a Joinder Agreement in the form of Exhibit
N attached hereto duly executed and delivered by such Guarantor.
(d) The Borrower shall, and shall cause each Guarantor now or
hereafter owning any equity interest in any of the Restricted Subsidiaries
(including without limitation First Tier Foreign Subsidiaries) to, pledge to the
Administrative Agent for the benefit of the Lenders (x) in the case of U.S.
Restricted Subsidiaries, 100%, or (y) in the case of First Tier Foreign
Subsidiaries, 65%, of all of the issued and outstanding voting stock or other
voting equity interests in each such Restricted Subsidiary, which pledge may be
accomplished, in the Administrative Agent's reasonable discretion, either
pursuant to a Security Document or by a Joinder Agreement in the form of Exhibit
N attached hereto duly executed and delivered by such appropriate Person.
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(e) Notwithstanding anything to the contrary set forth herein, any
existing Guarantor may become a Non-Guarantor Subsidiary, or any existing
Restricted Subsidiary may become an Unrestricted Subsidiary, subject to approval
by the Administrative Agent. Upon any such approval under the first part of the
preceding sentence, an amendment to the Guaranty removing such Guarantor
therefrom shall be executed, including a reaffirmation by all remaining
Guarantors of their obligations thereunder (in the case of an existing Guarantor
becoming a Non-Guarantor Subsidiary), and the Administrative Agent shall have
the authority to execute and deliver such amendment and take such other actions
and execute such agreements, documents and instruments as it may deem reasonable
and appropriate in connection therewith, including without limitation releases
of Collateral owned by the removed Guarantor.
(f) If at any time NCPM or any of its Subsidiaries is not
prohibited by law or contract from becoming a Guarantor hereunder, such Person
will promptly become a Guarantor and a Restricted Subsidiary hereunder by due
execution and delivery of a Subsidiary Guaranty and compliance with the
requirements set forth in clause (c) above, provided, however, if the Borrower
does not directly or indirectly own all of the equity of such Person, it shall
not be required to become a Guarantor hereunder if the Borrower reasonably
believes delivery of a Subsidiary Guaranty by such Subsidiary would potentially
conflict with (or potentially be inconsistent with) obligations or duties owed
to minority equity interest holders pursuant to applicable Law or a contract
governing the management and affairs of such Subsidiary.
5.17 Update Of Schedules. The Borrower shall, and shall cause each
Restricted Subsidiary to, promptly, but in no event later than thirty (30) days,
following a Permitted Acquisition or other event which would result in a
material change to any of the information on the disclosure schedules hereto,
provide the Administrative Agent with revised schedule(s). The revised schedules
must be reasonably acceptable in all respects to the Administrative Agent; they
will not be acceptable if they disclose actual or potential Events of Default.
5.18 Compliance With Laws. The Borrower shall, and shall cause each
Restricted Subsidiary to, comply with all Laws governing each such Person in the
operation of its business, including Environmental Laws and any Laws relating to
employment practices and pension benefits and occupational and health standards
and controls, but excluding any Laws whose violation would not be reasonably
expected to cause a Material Adverse Effect.
5.19 Keyman Life Insurance. Borrower will at all times maintain at
least $2,000,000 in keyman life insurance on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
5.20 NCPM/NCOG Loan.
(a) The terms of the NCPM/NCOG Credit Agreement, NCPM/NCOG Note
and all other documents and instruments executed in connection therewith, shall
be in form and substance reasonably satisfactory to the Administrative Agent,
and shall not be amended, restated, modified, terminated and/or supplemented, or
requirements set forth therein waived, except that:
(i) Permitted Amendments may be made at any time upon
providing written notice to the Administrative Agent;
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(ii) any other amendment or waiver may in its sole discretion
be done upon the prior written consent of the Administrative Agent; and
(iii) so long as no Event of Default is then in effect or
would otherwise be caused thereby, subject to the mandatory prepayment
provisions of Section 1.6 (Mandatory Prepayment and Commitment Reductions), all
obligations under the NCPM/NCOG Credit Agreement, NCPM/NCOG Note and all other
documents and instruments executed in connection therewith may be paid in full,
and commitments to lend thereunder terminated.
(b) Without limiting the provisions of Section 6.13 (Acquired
Delinquent Pools of Accounts) unless previously reduced to such amount pursuant
to another provision hereof or thereof, the Borrower shall cause the amount of
the NCPM/NCOG Commitment to be permanently reduced to no more than
$28,750,000.00 on September 30, 2003 and further permanently reduced to no more
than $25,000,000.00 on December 31, 2003. Concurrently with each such reduction
in the NCPM/NCOG Commitment, the Borrower shall cause NCPM to reduce the
obligations owing under the NCPM/NCOG Credit Agreement such that they do not
exceed the amount of the NCPM/NCOG Commitment as reduced.
(c) The Borrower shall take such steps as may be required to
ensure that the Administrative Agent, for the benefit of the Lenders, shall at
all times have a perfected first priority lien on the NCPM/NCOG Note, all
proceeds thereof and all supporting obligations thereunder, unless and until the
NCPM/NCOG Note and related obligations are paid in full and the commitment to
lend under the NCPM/NCOG Credit Agreement is terminated.
(d) The Borrower shall cause all Unrestricted Subsidiaries to
comply with all covenants and other obligations applicable to them pursuant to
the NCPM/NCOG Credit Agreement and related agreements and instruments as in
effect from time to time unless such compliance has been waived by the
Administrative Agent in its sole discretion.
(e) The Borrower shall terminate the NCPM/NCOG Credit Agreement at
such time as neither it nor any of its Restricted Subsidiaries has any equity
interest in NCPM.
5.21 Interest Rate Hedging Agreements. The Borrower may obtain and
maintain in full force and effect, one or more Interest Rate Hedging Agreements
(on terms and conditions satisfactory to the Administrative Agent). Any such
Interest Rate Hedging Agreements with one or more of the Lenders or Affiliates
thereof (each such Interest Rate Hedging Agreement, a "Qualified Interest Rate
Hedging Agreement") shall be secured by the Collateral. Neither the Borrower nor
any Restricted Subsidiary will enter into any Interest Rate Hedging Agreement
except in the ordinary course of business to mitigate fluctuations of interest
rates in respect of outstanding Indebtedness. Upon the Maturity Date, if any
Qualified Interest Rate Hedging Agreements shall be in effect, if agreed by the
Administrative Agent and the Lender(s) (or Affiliate(s)) party thereto
("Counterparties"), the Collateral under the Loan Documents may be released so
long as the Borrower deposits cash in an amount acceptable to the
Counterparties, to be held by the Administrative Agent in an interest-bearing
cash collateral account for the benefit of and acceptable to the Counterparties,
for application to obligations under such Qualified Interest Rate Hedging
Agreement(s) as such obligations come due.
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ARTICLE VI
NEGATIVE COVENANTS
So long as any Obligations shall remain unpaid or any Lender shall have
any Commitment under this Agreement, Borrower shall comply, and shall cause each
of the Restricted Subsidiaries to comply, with the following covenants
(provided, however, that compliance with each financial covenant set forth
herein shall be calculated based on financial information of the Borrower and
its consolidated Subsidiaries as set forth in the relevant financial covenant).
6.1 Financial Covenants.
(a) Consolidated Fixed Charge Coverage Ratio. The Consolidated
Fixed Charge Coverage Ratio shall not at any time be less than 1.25 to 1.00 for
any fiscal quarter.
(b) Consolidated Net Worth. As of the last day of each fiscal
quarter Consolidated Net Worth shall not be less than (i) $400,000,000.00 plus
(ii) 50% of Consolidated Net Income calculated on a cumulative basis beginning
with the quarter ending June 30, 2003, without deductions for net losses.
(c) Consolidated Funded Debt to Consolidated EBITDA. The ratio of
Consolidated Funded Debt to Consolidated EBITDA shall not be more than
3.25 to 1.00 for each fiscal quarter ending during the period from Closing Date
through December 30, 2003;
3.00 to 1.00 for each fiscal quarter ending during the period from December 31,
2003 through December 30, 2004;
2.75 to 1.00 for each fiscal quarter ending during the period from December 31,
2004 through December 30, 2005; or
2.5 to 1.00 for any quarter ending thereafter.
Consolidated EBITDA shall be calculated on a rolling four quarters basis,
adjusted for any Permitted Acquisition completed during the quarter most
recently ended. For purposes of calculating pro forma compliance with this
provision in analyzing a proposed acquisition, Consolidated EBITDA shall include
the pre-acquisition EBITDA of the target calculated on a rolling four quarters
basis and adjusted for unusual expense items.
(d) Consolidated Interest Coverage Ratio. The Consolidated Interest
Coverage Ratio shall not be less than
3.00 to 1.00 for each fiscal quarter ending during the period from Closing Date
through December 30, 2004;
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3.50 to 1.00 for each fiscal quarter ending during the period from December 31,
2004 through December 30, 2005; or
4.0 to 1.00 for any quarter ending thereafter.
(e) Consolidated Senior Debt to Consolidated EBITDA. The ratio of
Consolidated Senior Debt to Consolidated EBITDA shall not be more than
2.50 to 1.00 for each fiscal quarter ending during the period from the Closing
Date through December 30, 2003;
2.50 to 1.00 for each fiscal quarter ending during the period from December 31,
2003 through December 30, 2004;
2.00 to 1.00 for each fiscal quarter ending during the period from December 31,
2004 through December 30, 2005; or
1.5 to 1.00 for any quarter ending thereafter.
Consolidated EBITDA shall be calculated on a rolling four quarters basis,
adjusted for any acquisition completed during the quarter most recently ended.
For purposes of calculating pro forma compliance with this provision in
analyzing a proposed acquisition, Consolidated EBITDA shall include the
pre-acquisition EBITDA of the target calculated on a rolling four quarters basis
and adjusted for unusual expense items.
(f) Consolidated Current Ratio. The ratio of Current Assets to
Current Liabilities shall not be less than 1.25 to 1.00 for any two (2)
consecutive fiscal quarters.
(g) Calculation of Financial Covenants. Except as otherwise
provided in this Agreement, calculations made pursuant to this Section 6.1 shall
give effect, on a pro forma basis, to all Permitted Acquisitions and
dispositions permitted under Section 6.10(f) made during the period to which the
calculation relates, as if such Permitted Acquisition or disposition had been
consummated on the first day of the applicable period.
6.2 Liens. Neither Borrower nor any Restricted Subsidiary shall at any
time create, incur, assume or suffer to exist any Lien on any of its property
(now owned or hereafter acquired), or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except for the following
("Permitted Liens"):
(a) Liens pursuant to the Security Documents in favor of the
Administrative Agent (on behalf of the Lenders) to secure the Obligations;
(b) Liens existing on the date hereof securing obligations existing
on the date hereof, as such Liens and obligations are listed in Schedule 6.2
hereto;
(c) Liens pursuant to the Security Documents securing Qualified
Interest Rate Hedging Agreements, to the extent approved by the Administrative
Agent;
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(d) Liens arising from taxes, assessments, charges or claims, or
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business, in each case, to the
extent not yet due or remaining payable without penalty or to the extent
permitted to remain unpaid under the proviso to Section 5.3 (Payment of Taxes
and Other Potential Charges and Priority Claims), provided that the aggregate
amount of all tax obligations secured by ▇▇▇▇▇ described in this Section 6.2(d)
shall not at any time exceed $750,000;
(e) Liens in the form of cash deposits securing workers'
compensation insurance obligations;
(f) Liens in the form of usual and customary cash deposits securing
obligations under real estate leases in the ordinary course of business and
precautionary filings of UCC financing statements by lessors under operating
leases which filings do not secure indebtedness (subject to compliance with
Section 6.12 (Dealings with Affiliates));
(g) leases or subleases granted to other Persons, easements,
rights-of-way, zoning restrictions or other similar charges or encumbrances on
real property, in each case incidental to, and not interfering with, the
ordinary conduct of the business of the Borrower or any of its Restricted
Subsidiaries; and
(h) Liens pursuant to Capitalized Leases and Purchase Money
Indebtedness permitted under Section 6.3(e) hereof, provided that no such Lien
shall extend to or cover any property other than that which is leased thereunder
or purchased thereby.
"Permitted Lien" shall in no event include any Lien imposed by, or required to
be granted pursuant to, ERISA or any Environmental Law.
6.3 Indebtedness. Neither the Borrower nor any Restricted Subsidiary
shall at any time create, incur, assume or suffer to exist any Indebtedness, or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except:
(a) Indebtedness to the Lenders pursuant to this Agreement and the
other Loan Documents;
(b) Indebtedness of each such Person existing on the date hereof
and listed in Schedule 6.3 hereof, including without limitation that certain
Indenture dated as of April 4, 2001 with Bankers Trust Company as Trustee listed
therein (but not any extensions, renewals or refinancings thereof);
(c) Permitted Acquisition Indebtedness;
(d) Acquisitions or investments permitted under Section
6.13(a)(iii) that may constitute Indebtedness;
(e) Indebtedness, in an aggregate outstanding principal amount not
to exceed $10,000,000.00 at any time in respect of Capitalized Leases and/or
Purchase Money Indebtedness;
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(f) [Intentionally Omitted];
(g) Inter-company Indebtedness among the Borrower and Guarantors
permitted under Section 6.5 (Loans, Advances and Investments);
(h) Inter-company Indebtedness of the Borrower or Guarantors, on
the one hand, to Restricted Subsidiaries which are not Guarantors, on the other
hand, in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding
(i) Inter-company Indebtedness of Restricted Subsidiaries which are
not Guarantors, on the one hand, to the Borrower or any Guarantor, on the other
hand, in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding;
(j) Inter-company Indebtedness of Restricted Subsidiaries which are
not Guarantors, on the one hand, to other Restricted Subsidiaries which are not
Guarantors, on the other hand;
(k) To the extent that any of the obligations secured by Permitted
Liens constitute Indebtedness by virtue of clause (d) of the definition of
Indebtedness, such Indebtedness; and
(l) Indebtedness under Interest Rate Hedging Agreements permitted
by this Agreement.
6.4 Guaranties, Indemnities, Etc. Neither the Borrower nor any
Restricted Subsidiary shall be or become subject to or bound by any Guaranty or
Guaranty Equivalent, or agree, become or remain liable (contingently or
otherwise) to do any of the foregoing, except:
(a) Guaranties and Guaranty Equivalents of the obligations of other
Persons (other than the Borrower or its Subsidiaries) which, when added to loans
and advances by the Borrower and Restricted Subsidiaries to such third parties
and investments permitted under Section 6.5(j), in the aggregate do not exceed
$5,000,000 at any one time;
(b) Contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar
transactions in the ordinary course of business;
(c) Indemnities by the Borrower or a Restricted Subsidiary of the
liabilities of its directors or officers in their capacities as such pursuant to
provisions presently contained in their articles of incorporation or by-laws (or
other constituent documents) or as permitted by Law;
(d) Guaranties by the Borrower or any Restricted Subsidiary, on the
one hand, of Permitted Indebtedness of the Borrower or any Guarantor, on the
other hand;
(e) Guaranties by the Borrower or any Guarantor, on the one hand,
of Permitted Indebtedness of Restricted Subsidiaries which are not Guarantors,
on the other hand, in an aggregate principal amount not to exceed $10,000,000 at
any time outstanding as permitted by Section 6.3(h);
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(f) Guaranties by Restricted Subsidiaries which are not Guarantors,
on the one hand, of Permitted Indebtedness of Subsidiaries which are not
Guarantors, on the other hand;
(g) Guaranties by the Borrower or any Restricted Subsidiary of
operating leases permitted under Section 6.8 entered into by the Borrower or
another Restricted Subsidiary; and
(h) Guaranties by any Guarantor of ▇▇▇▇▇▇▇▇'s Obligations
hereunder.
6.5 Loans, Advances And Investments. Neither the Borrower nor any
Restricted Subsidiary shall at any time make or suffer to exist or remain
outstanding any loan or advance to, or purchase, acquire or own (beneficially or
of record) any stock, bonds, notes or securities of, or any partnership interest
(whether general or limited) in, or any other interest in, or make any capital
contribution to or other investment in, any other Person (including without
limitation any unconsolidated Subsidiary), or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Loans and investments existing on the date hereof and listed in
Schedule 6.5 hereof (but not any amendments, extensions or refinancings
thereof);
(b) Receivables owing to each such Person arising from sales of
inventory under usual and customary terms in the ordinary course of business;
(c) Demand advances to officers and employees of the Borrower or
any Restricted Subsidiary to meet expenses incurred by such officers and
employees in the ordinary course of business and in amounts at any time
outstanding not exceeding $5,000.00 to any one officer or employee and
$10,000.00 in the aggregate among the Borrower and Restricted Subsidiaries;
(d) Cash Equivalent Investments;
(e) Loans, advances or capital contributions from the Borrower to a
Guarantor, or from a Guarantor to the Borrower or an other Guarantor, so long as
such amounts are subordinated to the Obligations on terms and conditions
satisfactory to the Administrative Agent;
(f) Loans, advances or capital contributions (excluding capital
contributions existing on the Closing Date and set forth on Schedule 6.5) from
the Borrower or any Guarantors, on the one hand, to Restricted Subsidiaries
which are not Guarantors, on the other hand, in an aggregate principal amount
not to exceed $10,000,000 at any time outstanding.
(g) Loans, advances or capital contributions (excluding capital
contributions existing on the Closing Date and set forth on Schedule 6.5) from
any Restricted Subsidiaries which are not Guarantors, on the one hand, to the
Borrower or any Guarantor, on the other hand, in an aggregate principal amount
not to exceed $10,000,000 at any time outstanding so long as such loans or
advances are subordinate to the Obligations on terms and conditions satisfactory
to the Administrative Agent;
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(h) Loans, advances or capital contributions from Restricted
Subsidiaries that are not Guarantors to other Restricted Subsidiaries that are
not Guarantors;
(i) investments expressly permitted by Section 6.13 (Acquired
Delinquent Pools of Accounts);
(j) subject to the limitations in Sections 6.13 (Acquired
Delinquent Pools of Accounts) and 6.19 (Limitation on Transactions with
Unrestricted Subsidiaries, Etc.), other loans and advances to other Persons, the
aggregate principal amount of which, when added to Guaranties and Guaranty
Equivalents issued by the Borrower and Restricted Subsidiaries for such other
Persons and guarantees and contingent liabilities permitted by Section 6.4(a)
(Guarantees, Indemnitees, Etc.), do not exceed $5,000,000 at any time for the
Borrower and Restricted Subsidiaries;
(k) the NCPM/NCOG Note and extensions of credit under the NCPM/NCOG
Credit Agreement, subject to compliance with Sections 5.20 (NCPM/NCOG Loan) and
6.13 (Acquired Delinquent Pools of Accounts);
(l) any Permitted Bond Purchases and Permitted ▇▇▇▇ ▇▇ Investments
provided, however, that (1) after giving effect to such purchase, no Event of
Default or Default shall exist; (2) the Net Amount (as defined below) paid for
all Permitted Bond Purchases and Permitted ▇▇▇▇ ▇▇ Investments at any one time
does not exceed $10,000,000.00 in the aggregate; (3) all bonds, notes and other
assets purchased as Permitted Bond Purchases shall be pledged to the
Administrative Agent pursuant to the Security Documents; (4) all equity
interests purchased as Permitted ▇▇▇▇ ▇▇ Investments shall be pledged to the
Administrative Agent pursuant to the Security Documents; (5) if any Permitted
▇▇▇▇ ▇▇ Investment results in any entity becoming a Subsidiary of the Borrower,
it shall become a Guarantor in accordance with the terms of this Agreement
(unless the Administrative Agent otherwise approve). For the sake of clarity, it
is expressly understood that this provision does not permit without the express
consent of the Super Majority Lenders any acquisition prohibited by Section 6.9
(Mergers, Acquisitions, Etc.) to be made without such consent. "Net Amount", as
used in this clause (k), means the gross amount paid by the Borrower and/or any
Restricted Subsidiary for Permitted Bond Purchases and Permitted ▇▇▇▇ ▇▇
Investments less any cash amounts received by the Borrower and/or a Restricted
Subsidiary in respect of proceeds from any sale or disposition of, or any
interest payment, principal payment, dividend or other distribution on,
Permitted Bond Purchases and Permitted ▇▇▇▇ ▇▇ Investments;
(m) investments in the form of capital stock or other equity
interests in account debtors (as defined in the UCC) distributed to the Borrower
as consideration for claims in bankruptcy proceedings involving such account
debtors;
(n) investments in the form of Interest Rate Hedging Agreements
which are not speculative in nature; and
(o) the creation of new Restricted Subsidiaries, subject to the
other limitations set forth in this Section 6.5;
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(p) Permitted Acquisitions; and
(q) the Division Sale Notes in existence on the Closing Date.
For the purposes of this Section 6.5, the amount of capital contributions deemed
to be "outstanding" shall be the aggregate amount of all contributions made by a
Person to another Person less the amount of cash dividends or other
distributions received by the former Person from the latter.
6.6 Dividends And Related Distributions. Neither the Borrower nor any
Restricted Subsidiary shall declare or make any Stock Payment, or agree, become
or remain liable (contingently or otherwise) to do any of the foregoing, except
that (a) subject to Section 6.19 (Limitation on Transactions with Unrestricted
Subsidiaries, Etc.), any such Person may make a Stock Payment to another such
Person, so long as not otherwise prohibited hereunder, and (b) Stock Payments
may be declared or made to the extent permitted under Section 6.11 (Issuances).
6.7 Sale-Leasebacks. Neither the Borrower nor any Restricted Subsidiary
shall at any time enter into or suffer to remain in effect any transaction to
which such Person is a party involving the sale, transfer or other disposition
by such Person of any property (now owned or hereafter acquired), with a view
directly or indirectly to the leasing back of any part of the same property or
any other property used for the same or a similar purpose or purposes, or agree,
become or remain liable (contingently or otherwise) to do any of the foregoing.
6.8 Leases. Neither the Borrower nor any Restricted Subsidiaries shall
at any time enter into or suffer to remain in effect any lease, as lessee, of
any property, or agree, become or remain liable (contingently or otherwise) to
do any of the foregoing, except:
(a) Operating leases of equipment or office space used by the
lessee in the ordinary course of business;
(b) Leases cancelable by the lessee without penalty on not more
than 90 days' notice; and
(c) Capitalized Leases permitted under Section 6.3(e) hereof.
6.9 Mergers, Acquisitions, Etc. Neither the Borrower nor any Restricted
Subsidiary shall (a) merge with or into or consolidate with any other Person,
except for (i) Permitted Acquisitions and (ii) subject to the limitations in
Section 6.19 (Limitation on Transactions with Unrestricted Subsidiaries, Etc.),
mergers among the Borrower and a Restricted Subsidiary (provided that in the
case of a merger among the Borrower and a Restricted Subsidiary, the Borrower
shall survive, and in the case of a merger among a Guarantor and a Non-Guarantor
Subsidiary, the Guarantor shall survive), (b) liquidate, wind-up, dissolve or
divide, except that (x) Subsidiaries with substantially no assets and no
liabilities may be dissolved, and (z) other Subsidiaries of the Borrower may be
dissolved in compliance in all material respects with applicable Law upon prior
written approval of the Administrative Agent, (c) except for Permitted
Acquisitions, acquire all or any substantial portion of the properties of any
going concern or going line of business, (d) except for Permitted Acquisitions,
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acquire all or any substantial portion of the properties of any other Person, or
(e) agree, become or remain liable (contingently or otherwise) to do any of the
foregoing; provided, however, that the Borrower may seek the prior written
consent of the Super Majority Lenders for an acquisition which is not a
Permitted Acquisition (and upon obtaining such consent, such acquisition shall
be deemed to be a Permitted Acquisition hereunder).
6.10 Dispositions Of Properties. Neither the Borrower nor any
Restricted Subsidiary shall sell, convey, assign, lease, transfer, abandon or
otherwise dispose of, voluntarily or involuntarily, any of its properties,
tangible or intangible, including without limitation stock, or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing, except:
(a) The Borrower and Restricted Subsidiaries may sell inventory in
the ordinary course of business;
(b) The Borrower and Restricted Subsidiaries may dispose of
equipment and terminate leaseholds which, in each case, is obsolete or no longer
useful in their business;
(c) The Borrower and Restricted Subsidiaries may make Cash
Equivalent Investments;
(d) Subject to the conditions set forth in Section 1.6(b)(ii)
hereof, the Borrower and Restricted Subsidiaries may consummate a Permitted NCPM
Sale Transaction;
(e) The Borrower and Restricted Subsidiaries may dispose of
Permitted Bond Purchases and Permitted ▇▇▇▇ ▇▇ Investments;
(f) The Borrower and Guarantors may dispose of its properties,
tangible or intangible, in transactions with each other (subject to compliance
with any requirements applicable to Collateral hereunder or in the Security
Documents);
(g) The Borrower may issue equity to the extent permitted by
Section 6.11 (Issuances);
(h) The Borrower and Restricted Subsidiaries may dispose of any
other property (including without limitation a division or Subsidiary) so long
as the fair market value of all property disposed of pursuant to this paragraph
(h) does not exceed $5,000,000 in the aggregate in any fiscal year; and
(i) The Borrower and Restricted Subsidiaries may make Stock
Payments expressly permitted by Section 6.6 (Dividends and Related
Distributions), loans, advances and capital contributions expressly permitted by
Section 6.5 (Loans, Advances and Investments) and make other dispositions that
are similarly expressly permitted by the covenants set forth in this Article VI.
By way of illustration, and without limitation, it is understood that the
following are dispositions of property prohibited under this Section 6.10: any
disposition of accounts, chattel paper or general intangibles, with or without
recourse, and any disposition of any leasehold interest. Nothing in this Section
6.10 shall be construed to limit any other restriction on dispositions of
property imposed by the Security Documents or otherwise in the Loan Documents.
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6.11 Stock Issuances. Neither the Borrower nor any Restricted
Subsidiary shall issue, sell, otherwise dispose or suffer to remain outstanding,
voluntarily or involuntarily, any additional shares of capital stock, or any
options, warrants, calls, subscriptions, conversion rights, exchange rights,
preemptive rights or other rights, agreements or arrangements (contingent or
otherwise) which may in any circumstances now or hereafter obligate any such
Person to issue any shares of its capital stock or any capital stock in any
other such Person, except for (a) issuances among Borrower and a Restricted
Subsidiary or among Restricted Subsidiaries, (b) stock dividends or stock splits
of common stock by the Borrower which do not otherwise cause an Event of Default
hereunder, (c) options issued to employees of the Borrower and Restricted
Subsidiaries in the ordinary course of business as part of employee incentive
plans, and (d) the issuance of stock of Borrower in connection with a Permitted
NCPM Purchase Transaction or Permitted Acquisition to the extent it would not
otherwise cause a Default or Event of Default hereunder. The Borrower shall use
net cash proceeds of any issuance of equity to prepay the Loans in accordance
with Section 1.6(b)(i). All stock issued under paragraph (a) above shall be
subject to the terms of any applicable Stock Pledge Agreement.
6.12 Dealings With Affiliates. Neither the Borrower nor any Restricted
Subsidiary shall enter into or carry out any transaction with (including,
without limitation, purchase or lease property or services from, sell or lease
property or services to, loan or advance to, or enter into, suffer to remain in
existence or amend any contract, agreement or arrangement with) any Affiliate of
any such Person, directly or indirectly, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) The Borrower and Guarantors may continue to perform under
contracts, agreements and arrangements in existence as of the date hereof and
set forth in Schedule 6.12 hereof;
(b) Directors, officers and employees of the Borrower or a
Restricted Subsidiary may be compensated for services rendered in such capacity
to such Person, provided that such compensation is in good faith and on terms no
less favorable to such Person than those that could have been obtained in a
comparable transaction on an arm's-length basis from an unrelated Person, and
the board of directors of such Person (including a majority of the directors
having no direct or indirect interest in such transaction) shall have approved
the same (in the case of officer and director compensation);
(c) transactions in the ordinary course of business and consistent
with past practices between the Borrower and a Restricted Subsidiary, in good
faith and on terms no less favorable to Borrower than those that could have been
obtained in a comparable transaction on an arm's-length basis from an unrelated
Person;
(d) other transactions with Affiliates in good faith and on terms
no less favorable to Borrower or any Restricted Subsidiary than those that could
have been obtained in a comparable transaction on an arm's-length basis from an
unrelated Person;
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(e) The transactions under the NCPM/NCOG Credit Agreement and
related documents, to the extent Borrower is in compliance with Section 5.20
(NCPM/NCOG Loan); and
(f) Transactions with Affiliates otherwise expressly permitted
pursuant to the terms and conditions of Sections 6.3 (Indebtedness), 6.4
(Guaranties, Indemnities, Etc.), 6.5 (Loans, Advances and Investments), 6.6
(Dividends and Related Distributions), 6.9 (Mergers, Acquisitions), 6.10
(Dispositions of Properties), Section 6.11 (Stock Issuances) and Section 6.13
(Acquired Delinquent Pools of Accounts).
6.13 Acquired Delinquent Pools Of Accounts.
(a) The Borrower shall not, and shall not permit any Restricted
Subsidiary to, acquire delinquent pools of Accounts or make investments in
Persons acquiring delinquent pools of Accounts, except:
(i) investments by ▇▇▇▇▇▇▇▇ in NCPM, (A) in the form of its
existing equity contribution (which is in an amount equal to Twenty Five Million
Dollars ($25,000,000) and (B) loans and advances under the NCPM/NCOG Credit
Agreement in an outstanding principal amount not to exceed Twenty Eight Million,
Seven Hundred and Fifty Thousand Dollars ($28,750,000) measured as of September
30, 2003 and Twenty Five Million Dollars ($25,000,000) measured as of December
31, 2003 and thereafter;
(ii) a Permitted NCPM Purchase Transaction, to the extent such
purchase is funded entirely (excluding paid cash closing expenses) through the
sale of equity interests in Borrower and would not otherwise result in a Default
or Event of Default hereunder; and
(iii) Restricted Subsidiaries which are not Guarantors may
acquire delinquent pools of accounts or make investments in Persons that acquire
delinquent pools of accounts so long as the amount of such acquisitions and
investments do not exceed, in the aggregate at any time an amount equal to Five
Million Dollars ($5,000,000).
(b) The Borrower shall not, and shall not permit any Subsidiary
to, acquire delinquent pools of Accounts or make investments in Persons
acquiring delinquent pools of Accounts, except:
(i) as provided in paragraph (a) above;
(ii) direct acquisitions of delinquent pools of Accounts by
NCPM or any Subsidiary of NCPM; or
(iii) investments by NCPM (or a Subsidiary of NCPM) in any
Subsidiary of NCPM except that the aggregate amount of all investments made by
NCPM or any Subsidiary of NCPM (other than Non-Surety Entities) in Non-Surety
Entities shall not in the aggregate exceed an amount equal to $15,000,000.00 at
any time (including such portfolio purchases made prior to the Closing Date, as
well as such portfolio purchases made during the term of this Agreement but
excluding investments in the Creditrust Entities made prior to the Closing
Date).
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(c) For purposes of this Section 6.13, the "amount" of any
investment or acquisition shall be determined as follows:
(i) with respect to any acquisition of delinquent pools of
Accounts, the amount of the unamortized remaining invested balance for all such
pools on the consolidated balance sheet of the Borrower and its consolidated
Subsidiaries, and
(ii) with respect to any investment in entities purchasing
such pools,
(1) an amount equal to the amount of cash or the net fair
market value of other assets (determined as of the time the applicable
investment is made) paid by the applicable Person to acquire such investments
less
(2) the amount of any cash dividends or other equity
distributions or proceeds of any permitted sales of such equity received by the
applicable Person, in the case of equity investments and the amount of any
principal repayments received by the applicable Person in the case of
investments in the form of loans or advances.
(d) For purposes of this Section 6.13, the determination of the
"amount" of the Borrower's investment in NCPM shall be governed by paragraph (a)
above irrespective of whether NCPM's financial results are consolidated on the
Borrower's balance sheet.
6.14 [Intentionally Omitted].
6.15 [Intentionally Omitted].
6.16 Limitation On Payments Of Purchase Money Indebtedness. Neither the
Borrower nor any Restricted Subsidiary shall directly or indirectly pay, prepay,
purchase, redeem, retire, defease or acquire, or make any payment (on account of
principal, interest, premium or otherwise) of, or grant or suffer the existence
of any Lien on any of its property (now owned or hereafter acquired) to secure
any indebtedness, obligation or liability with respect to, or amend, modify or
supplement any of the terms and conditions of, any Purchase Money Indebtedness,
or agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except that so long as no Event of Default or Default has occurred
and is continuing, the Borrower or any Restricted Subsidiary may pay principal
and interest on and fees and expense reimbursements with respect to Purchase
Money Indebtedness when due, and in the case of Purchase Money Indebtedness that
is subject to subordination provisions, to the extent consistent with the
subordination provisions of such Purchase Money Indebtedness.
6.17 Limitation On Other Restrictions On Liens. Neither Borrower nor
any Restricted Subsidiary shall enter into, become or remain subject to any
agreement or instrument (other than the Loan Documents) to which any such Person
is a party or by which its properties (now owned or hereafter acquired) may be
subject or bound that would prohibit the grant of any Lien upon any of its
properties (now owed or hereafter required), except (a) that certain Indenture
dated as of April 4, 2001 with Bankers Trust Company as Trustee, and (b)
agreements respecting Permitted Liens to the extent such agreements may prohibit
liens on the assets subject to such Permitted Liens.
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6.18 Limitation On Other Restrictions On Amendment Of The Loan
Documents, Etc. Neither Borrower nor any Restricted Subsidiary shall enter into,
become or remain subject to any agreement or instrument to which any such Person
is a party or by which any such Person or any of its respective properties (now
owned or hereafter acquired) may be subject or bound that would prohibit or
require the consent of any Person to any amendment, modification or supplement
to any of the Loan Documents, except for the Loan Documents.
6.19 Limitation on Transactions with Unrestricted Subsidiaries, Etc.
Notwithstanding any provision in this Agreement or any other Loan Document to
the contrary, and without limiting Section 6.12 (Dealings with Affiliates):
(a) the Borrower shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly (without duplication) (i) transfer
(whether by way of sale, lease, gift, merger or otherwise) any asset to any
Unrestricted Subsidiary except in exchange for cash consideration equal to the
fair market value of the asset transferred, (ii) make any Investment in any
Unrestricted Subsidiary or otherwise provide any Guaranty of, or otherwise
become liable for, any obligations of any Unrestricted Subsidiary, (iii) provide
services to any Unrestricted Subsidiary except in exchange for cash compensation
equal to the value of the services provided, (iv) co-mingle any funds or other
assets with any Unrestricted Subsidiary, or (v) engage in any other transaction
with any Unrestricted Subsidiary on terms that are not at least as favorable to
the Borrower or Restricted Subsidiary, as applicable, as would be a transaction
with an unrelated third party; and
(b) the Borrower shall not, and shall not permit any Guarantor to,
directly or indirectly (without duplication) (i) transfer (whether by way of
sale, lease, gift, merger or otherwise) any asset to any Non-Guarantor
Subsidiary except in exchange for cash consideration equal to the fair market
value of the asset transferred, (ii) make any Investment in any Non-Guarantor
Subsidiary or otherwise provide any Guaranty of, or otherwise become liable for,
any obligations of any Non-Guarantor Subsidiary, (iii) provide services to any
Non-Guarantor Subsidiary except in exchange for cash compensation equal to the
value of the services provided, (iv) co-mingle any funds or other assets with
any Non-Guarantor Subsidiary, or (v) engage in any other transaction with any
Non-Guarantor Subsidiary on terms that are not at least as favorable to the
Borrower or Guarantor, as applicable, as would be a transaction with an
unrelated third party;
except that the foregoing provisions shall not apply to the following:
(i) cash management functions approved by the Administrative
Agent;
(ii) transactions otherwise expressly permitted pursuant to
the terms and conditions of clauses (g) through (j) of Section 6.3
(Indebtedness), clauses (d) through (h) of Section 6.4 (Guarantees, Indemnitees,
Etc.), clauses (f) through (i), (k), (o) and (q) of Section 6.5 (Loans, Advances
and Investments), clause (a) of Section 6.9 (▇▇▇▇▇▇ and Acquisitions), Section
6.11 (Stock Issuances) and Section 6.13 (Acquired Pools of Delinquent Accounts);
and
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(iii) servicing arrangements among the Borrower and/or NCO
Financial and any Non-Guarantor Subsidiary.
ARTICLE VII
DEFAULTS
7.1 "Events Of Default." An Event of Default shall mean the occurrence
or existence of one or more of the following events or conditions (for any
reason, whether voluntary, involuntary or effected or required by Law):
(a) Borrower shall fail to pay when due principal of any Loan.
(b) Borrower shall fail to pay when due interest on any Loan, any
fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan; provided, however that if any such amount is not paid when due
solely as a result of the Administrative Agent's negligent or willful failure to
charge any amount against ▇▇▇▇▇▇▇▇'s deposit or other accounts, at a time in
which sufficient funds were available in such accounts, such failure shall not
on its own cause a Default or Event of Default hereunder.
(c) Any representation or warranty made or deemed made by the
Borrower or any Guarantor in or pursuant to or in connection with any Loan
Document, or any statement made by the Borrower or any Guarantor in any
financial statement, certificate, report, exhibit or document furnished by the
Borrower or any Guarantor to the Lenders pursuant to or in connection with any
Loan Document, shall prove to have been false or misleading in any material
adverse respect as of the time when made or deemed made (including by omission
of material information necessary to make such representation, warranty or
statement not misleading).
(d) The Borrower or any Restricted Subsidiary shall default in the
performance or observance of any covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default under
Section 5.1 (Basic Reporting Requirements) hereof such default shall have
continued for a period of ten (10) days and (ii) in the case of any other
default such default shall have continued for a period of ten (10) days after
the Administrative Agent has sent notice of such default (as long as such ten
(10) day period does not extend more than thirty (30) days beyond the date of
occurrence of such default) provided that such default is capable of being cured
(which shall be determined in the sole and absolute discretion of the
Administrative Agent); provided, however that the foregoing notice and grace
periods shall not apply to the defaults described in subsections (a), (b) or (c)
of Section 7.1 (Events of Default).
(e) Any Cross-Default Event shall occur with respect to any
Cross-Default Obligation; provided, that if a Cross-Default Event would have
occurred with respect to a Cross-Default Obligation but for the grant of a
waiver or similar indulgence, a Cross-Default Event shall nevertheless be deemed
to have occurred if the Borrower or any Restricted Subsidiary directly or
indirectly gave or agreed to give any consideration for such waiver or
indulgence (including but not limited to a reduction in maturity, an increase in
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rates or the granting of collateral). As used herein, "Cross-Default Obligation"
shall mean any (1) Indebtedness, Guaranty or Guaranty Equivalent of the Borrower
or a Restricted Subsidiary in which the principal obligation of such Person
exceeds $1,000,000.00, or (2) any Indebtedness under any Interest Rate Hedging
Agreement or any agreement or instrument creating, evidencing or securing such
Indebtedness, Guaranty or Guaranty Equivalent. As used herein, "Cross-Default
Event" with respect to a Cross-Default Obligation shall mean the occurrence of
any default, event or condition which permits or causes any Person or Persons to
cause all or any part of such Cross-Default Obligation to become due (by
acceleration, mandatory prepayment or repurchase, or otherwise) before its
otherwise stated maturity, or failure to pay all or any part of such
Cross-Default Obligation at its stated maturity.
(f) One or more judgments for the payment of money shall have been
entered against the Borrower or any Restricted Subsidiary, which judgment or
judgments are not fully covered by insurance and exceed $500,000.00 in the
aggregate, and such judgment or judgments shall have remained undischarged and
unstayed for a period of thirty consecutive days.
(g) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value the aggregate amount
of $500,000.00 shall have been issued against the Borrower or any Restricted
Subsidiary or any of their properties and shall have remained undischarged and
unstayed for a period of thirty consecutive days.
(h) Any Governmental Action now or hereafter made by or with any
Governmental Authority required in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall have been
materially modified or amended or shall have been held to be illegal or invalid,
and the Majority Lenders shall have determined in good faith (which
determination shall be conclusive) that such event or condition could have a
Material Adverse Effect.
(i) Any Security Document shall cease to be in full force and
effect, or any Lien created or purported to be created in any Collateral
pursuant to any Security Document shall fail to be a valid, enforceable and
perfected Lien in favor of the Lenders securing the Obligations, prior to all
other Liens, except Permitted Liens, or the Borrower, any Guarantor or any
Governmental Authority shall assert any of the foregoing.
(j) Any Loan Document or term or provision thereof shall cease to
be in full force and effect, or the Borrower or any Guarantor shall, or shall
purport to, terminate, repudiate, declare voidable or void or otherwise contest,
any Loan Document or term or provision thereof or any obligation or liability of
the Borrower or any Guarantor thereunder, and the result of which is a material
effect on the rights and remedies of the Lenders under the Loan Documents.
(k) The Majority Lenders shall have determined in good faith that
an event or condition has occurred which will have a Material Adverse Effect.
(l) Any one or more Pension-Related Events referred to in
subsection (a)(ii), (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events shall have
occurred and the Majority Lenders shall determine in good faith (which
determination shall be conclusive) that such other Pension-Related Events,
individually or in the aggregate, could have a Material Adverse Effect.
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(m) Any one or more of the events or conditions set forth in the
following clauses (i) or (ii) shall have occurred in respect of the Borrower or
any Restricted Subsidiary, and the Majority Lenders shall determine in good
faith (which determination shall be conclusive) that such events or conditions,
individually or in the aggregate, could have a Material Adverse Effect: (i) any
past or present violation of any Environmental Law by such Person, (ii) the
existence of any pending or threatened Environmental Claim against any such
Person, or the existence of any past or present acts, omissions, events or
circumstances that could form the basis of any Environmental Claim against any
such Person.
(n) A Change of Management shall have occurred; or a "Change in
Control" (as such term is defined in any indenture that the Company has entered
into or may enter into, with respect to Subordinated Debt, including without
limitation that certain Indenture dated as of April 4, 2001 with Bankers Trust
Company, as Trustee, as amended).
(o) A proceeding shall have been instituted in respect of the
Borrower or any of its Significant Subsidiaries (as defined, for the purposes of
this subsection (o) and subsection (p) below, in 17 C.F.R. Part 210 (Regulation
S-X)).
(i) subject to clause (p)(4) below, seeking to have an order
for relief entered in respect of any such Person, or seeking a declaration or
entailing a finding that any such Person is insolvent or a similar declaration
or finding, or seeking dissolution, winding-up, charter revocation or
forfeiture, liquidation, reorganization, arrangement, adjustment, composition or
other similar relief with respect to any such Person, its assets or its debts
under any Law relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or any other similar Law
now or hereafter in effect, or
(ii) subject to clause (p)(5) below, seeking appointment of a
receiver, trustee, liquidator, assignee, sequestrator or other custodian for
such Person or for all or any substantial part of its property, and such
proceeding shall result in the entry, making or grant of any such order for
relief, declaration, finding, relief or appointment, or such proceeding shall
remain undismissed and unstayed for a period of sixty consecutive days.
(p) The Borrower or any of its Significant Subsidiaries shall (i)
become insolvent; (ii) fail to pay their debts as they become due or (iii)
become unable to pay their debts as they become due; or the Borrower or any of
its Significant Subsidiaries shall (1) state in writing that it is or will be
unable to pay, its debts as they become due; (2) voluntarily suspend transaction
of its business; (3) make a general assignment for the benefit of creditors; (4)
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.1(o)(i) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; (5) institute (or
fail to controvert for a period of sixty consecutive days in a timely and
appropriate manner) a proceeding described in Section 7.1(o)(ii) hereof, or
(whether or not any such proceeding has been instituted) shall consent to or
acquiesce in any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its property; subject to Section 6.9
(Mergers, Acquisitions, Etc.), shall dissolve, wind-up, revoke or forfeit its
charter (or other constituent documents) or liquidate itself or any substantial
part of its property; or (6) take any action in furtherance of any of the
foregoing.
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(q) Any person or any affiliated group of persons, other than
present management, obtains control of a majority of the voting stock of
Borrower.
(r) An event of default shall occur under a Qualified Interest Rate
Hedging Agreement and such event of default shall not have been waived or cured
within five (5) Business Days of its occurrence.
7.2 Consequences Of An Event Of Default.
(a) Events of Default in General. If an Event of Default (other
than one specified in paragraphs (o) and (p) of Section 7.1 (Insolvency,
Bankruptcy, Etc.) hereof, excluding clauses (i) - (iii) and (1) of paragraph
(p)) shall occur and be continuing or shall exist, then, in addition to all
other rights and remedies which the Administrative Agent or any other Lender may
have hereunder or under any other Loan Document, at law, in equity or otherwise,
the Lenders shall be under no further obligation to make Loans, the Issuer shall
have no obligation to issue Letters of Credit and the Administrative Agent may,
(and, upon the written request of the Majority Lenders shall) by notice to
▇▇▇▇▇▇▇▇, from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby waived, and an action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations (other than obligations incurred under
a Qualified Interest Rate Hedging Agreement) to be immediately due and payable
without presentment, demand, protest or further notice of any kind, all of which
are hereby waived, and an action therefor shall immediately accrue.
(iii) Exercise such other remedies as may be available to the
Lenders under applicable Law.
(b) Automatic Acceleration; Certain Bankruptcy-Related Events. If
an Event of Default specified in paragraph (o) or (p) of Section 7.1
(Insolvency, Bankruptcy, Etc.) (excluding clauses (i) - (iii) and (1) of
paragraph (p)) hereof shall occur or exist, then, in addition to all other
rights and remedies which any Lender may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Commitments shall automatically
terminate and the Lenders shall be under no further obligation to make Loans,
the Issuer shall have no obligation to issue Letters of Credit, and the unpaid
principal amount of the Loans, interest accrued thereon and all other
Obligations shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue, and in addition, the Administrative
Agent may, and upon the written request of the Majority Lenders, shall exercise
such other remedies as may be available to the Lenders under applicable Law.
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(c) Equitable Remedies. It is agreed that, in addition to all other
rights hereunder or under Law, the Administrative Agent shall have the right to
institute proceedings in equity or other appropriate proceedings for the
specific performance of any covenant or agreement made in any of the Loan
Documents or for an injunction against the violation of any of the terms of any
of the Loan Documents or in aid of the exercise of any power granted in any of
the Loan Documents or by Law or otherwise.
7.3 Application Of Proceeds. After the occurrence of an Event of
Default and acceleration of the Loans, any amounts received on account of
Obligations shall be applied in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities (to the extent liquidated and matured), expenses and
other amounts due to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities due to the Lenders, ratably among them in proportion
to the amounts described in this clause Second due to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Third due
to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans ratably among the Lenders in proportion
to the respective amounts described in this clause Fourth due to them;
Fifth, to payment of all other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this
clause Fifth due to them; and
Finally, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to Borrower or as otherwise required by
Law.
The Administrative Agent may, in its discretion, determine how
obligations in respect of Qualified Interest Rate Hedging Agreements shall be
classified for purposes of this Section 7.3.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT
8.1 Appointment. Subject to the provisions of the second sentence of
Section 8.9 (Successor Administrative Agent) below, each Lender hereby
irrevocably appoints Citizens to act as Administrative Agent for such Lender
under this Agreement and the other Loan Documents. Each Lender hereby
irrevocably authorizes the Administrative Agent to take such action on behalf of
such Lender under the provisions of this Agreement and the other Loan Documents,
and to exercise such powers and to perform such duties, as are expressly
delegated to or required of the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto.
Citizens ▇▇▇▇▇▇ agrees to act as Administrative Agent on behalf of the Lenders
on the terms and conditions set forth in this Agreement and the other Loan
Documents, subject to its right to resign as provided in Section 8.9 (Successive
Administrative Agent) hereof. Each Lender hereby irrevocably authorizes the
Administrative Agent to execute and deliver each of the Loan Documents and to
accept delivery of such of the other Loan Documents as may not require execution
by the Lenders. Each Lender agrees that the rights and remedies granted to the
Administrative Agent under the Loan Documents shall be exercised exclusively by
the Administrative Agent (or a Person designated by the Administrative Agent),
and that no Lender shall have any right individually to exercise any such right
or remedy, except to the extent, if any, expressly provided herein or therein.
8.2 General Nature Of Administrative Agent's Duties. Notwithstanding
anything to the contrary elsewhere in this Agreement or in any other Loan
Document:
(a) The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Administrative Agent shall be read into this Agreement or any other Loan
Document or shall otherwise exist.
(b) The duties and responsibilities of the Administrative Agent
under this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Administrative Agent shall not have a
fiduciary relationship with respect to any Lender.
(c) The Administrative Agent's relationship with and to the Lenders
is governed exclusively by the terms of this Agreement and the other Loan
Documents. The Administrative Agent does not assume, and shall not at any time
be deemed to have, any relationship of agency or trust with or for, any Lender
or any other Person or (except only as expressly provided in this Agreement and
the other Loan Documents) any other duty or responsibility to such Lender or
other Person.
(d) The Administrative Agent shall be under no obligation to take
any action hereunder or under any other Loan Document if the Administrative
Agent believes in good faith that taking such action may conflict with any Law
or any provision of this Agreement or any other Loan Document, or may require
the Administrative Agent to qualify to do business in any jurisdiction where it
is not then so qualified.
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(e) The authority of the Administrative Agent to request
information from the Borrower or take any other voluntary action hereunder shall
impose no duty of any kind on the Administrative Agent to make such request or
take any such action.
8.3 Exercise Of Powers. The Administrative Agent shall take any action
of the type specified in this Agreement or any other Loan Document as being
within the Administrative Agent's rights, powers or discretion in accordance
with directions from the Majority Lenders or Super Majority Lender, provided,
however, that in the absence of such direction, the Administrative Agent shall
have the authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, and provided, further, that if such action
would, in the reasonable opinion of the Administrative Agent, expose it to
liability, the Administrative Agent shall have the authority (but under no
circumstances shall be obligated) to not take any such action. Any action or
inaction by the Administrative Agent pursuant to the preceding sentence shall be
binding on each Lender (whether or not it so consented). The Administrative
Agent shall not have any liability to any Person as a result of any action or
inaction in conformity with this Section 8.3.
8.4 General Exculpatory Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) The Administrative Agent shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, except only for direct (as opposed to consequential or
other) damages suffered by a Person and only to the extent that such Person
proves that such damages were caused by the Administrative Agent's own gross
negligence or willful misconduct.
(b) The Administrative Agent shall not be responsible for (i) the
execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of any Loan Document, (ii) any recital, representation, warranty,
document, certificate, report or statement in, provided for in, or received
under or in connection with, any Loan Document, or (iii) any failure of the
Borrower, any Restricted Subsidiary or any Lender to perform any of their
respective obligations under any Loan Document.
(c) The Administrative Agent shall not be under any obligation to
ascertain, inquire or give any notice relating to (i) the performance or
observance of any of the terms or conditions of this Agreement or any other Loan
Document on the part of the Borrower or any Restricted Subsidiary, (ii) the
business, operations, condition (financial or otherwise) or prospects of the
Borrower, any Restricted Subsidiary or any other Person (even if the
Administrative Agent knows or should know that some event or condition exists or
fails to exist), or (iii) except to the extent set forth in Section 8.5(f)
below, the existence of any Event of Default or Default.
(d) The Administrative Agent shall not be under any obligation,
either initially or on a continuing basis, to provide any Lender with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, whether obtained under or in connection with this
Agreement or otherwise, except for such notices, reports and other information
expressly required by this Agreement or any other Loan Document to be furnished
by the Administrative Agent to such Lender.
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8.5 Administration By The Administrative Agent.
(a) The Administrative Agent may rely upon any notice or other
communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any other Loan
Document) purportedly made by or on behalf of the proper party or parties, and
the Administrative Agent shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) The Administrative Agent may consult with legal counsel
(including in-house counsel for the Administrative Agent or in-house or other
counsel for the Borrower or any Restricted Subsidiary), independent public
accountants and any other experts selected by it from time to time, and the
Administrative Agent shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts.
(c) The Administrative Agent may conclusively rely upon the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Administrative Agent in accordance
with the requirements of this Agreement or any other Loan Document. Whenever the
Administrative Agent shall deem it necessary or desirable that a matter be
proved or established with respect to the Borrower, any Restricted Subsidiary or
any Lender, such matter may be established by a certificate of Borrower, any
Restricted Subsidiary or any Lender, as the case may be, and the Administrative
Agent may conclusively rely upon such certificate (unless other evidence with
respect to such matter is specifically prescribed in this Agreement or another
Loan Document).
(d) The Administrative Agent may fail or refuse to take any action
unless it shall be directed by the Majority Lenders, the Super Majority Lenders
or all of the Lenders (if and to the extent this Agreement or another Loan
Document so expressly requires), to take such action and it shall be indemnified
to its satisfaction from time to time against any and all amounts, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature which may be imposed on,
incurred by or asserted against the Administrative Agent by reason of taking or
continuing to take any such action.
(e) The Administrative Agent may perform any of its duties under
this Agreement or any other Loan Document by or through agents or
attorneys-in-fact. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
(f) The Administrative Agent shall not be deemed to have any
knowledge or notice of the occurrence of any Event of Default or Default unless
the Administrative Agent has received notice from a Lender or Borrower referring
to this Agreement, describing such Event of Default or Default, and stating that
such notice is a "notice of default." If the Administrative Agent receives such
a notice, the Administrative Agent shall give prompt notice thereof to each
Lender.
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8.6 Lenders Not Relying On Administrative Agent Or Other Lenders. Each
Lender acknowledges as follows: (a) neither the Administrative Agent nor any
other Lender has made any representations or warranties to it, and no act taken
hereafter by the Administrative Agent or any other Lender shall be deemed to
constitute any representation or warranty by the Administrative Agent or such
other Lender to it; (b) it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon such documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the other Loan Documents; and (c)
it will, independently and without reliance upon the Administrative Agent or any
other Lender, and based upon such documents and information as it shall deem
appropriate at the time, make its own decisions to take or not take action under
or in connection with this Agreement and the other Loan Documents.
8.7 Indemnification. Each Lender agrees to reimburse and indemnify the
Administrative Agent and its directors, officers, employees and agents (to the
extent not reimbursed by the Borrower and Guarantors and without limitation of
the obligations of any such Persons to do so), in proportion to the Lenders'
respective pro rata share of the Commitment, from and against any and all
amounts, losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature
(including the fees and disbursements of counsel for the Administrative Agent or
such other Person in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not the Administrative
Agent or such other Person shall be designated a party thereto) that may at any
time be imposed on, incurred by or asserted against the Administrative Agent or
such other Person as a result of, or arising out of, or in any way related to or
by reason of, this Agreement, any other Loan Document, any acquisition or any
other transaction from time to time contemplated hereby or thereby, or any
transaction actually or proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan, provided that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements that such Lender proves were the result of the gross negligence or
willful misconduct of the Administrative Agent or such other indemnified Person.
Payments under this Section 8.7 shall be due and payable on demand.
8.8 Administrative Agent's Records. The Administrative Agent shall
maintain at its address referred to in Section 11.1 (Notices) a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and an
electronic record of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans and stated interest thereon owing to, each
Lender from time to time (the "Record"). The entries in the Record shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Record as a Lender hereunder for all purposes of this
Agreement.
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8.9 Successor Administrative Agent. The Administrative Agent may resign
at any time by giving 30 days' prior written notice thereof to the other Lenders
and ▇▇▇▇▇▇▇▇. The Administrative Agent may be removed by the Majority Lenders at
any time for cause by such Majority Lenders giving 30 days' prior written notice
thereof to the Administrative Agent, the other Lenders and ▇▇▇▇▇▇▇▇. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Administrative Agent with (so long as no Default or Event of
Default shall have occurred and then be continuing) the consent of Borrower
whose consent shall not be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed and consented to, and shall
have accepted such appointment, within 30 days after such notice of resignation
or removal, then another Lender shall have the right to become the successor
Administrative Agent by giving written notice thereof to Borrower and the
Lenders and if no Lender volunteers, or multiple Lenders volunteer, to become
successor Administrative Agent within thirty five (35) days after the retiring
Administrative Agent's notice of resignation or removal, then the retiring
Administrative Agent may (but shall not be required to) appoint a successor
Administrative Agent. Each successor Administrative Agent shall be a Lender if
any Lender shall at the time be willing to become the successor Administrative
Agent, and if no Lender shall then be so willing, then such successor
Administrative Agent shall be an Eligible Institution. Upon the acceptance by a
successor Administrative Agent of its appointment as Administrative Agent
hereunder, such successor Administrative Agent shall thereupon succeed to and
become vested with all the properties, rights, powers, privileges and duties of
the former Administrative Agent in its capacity as such, without further act,
deed or conveyance. Upon the effective date of resignation or removal of a
retiring Administrative Agent, such Administrative Agent shall be discharged
from its duties under this Agreement and the other Loan Documents, but the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted by it while it was Administrative Agent under this Agreement. If and
so long as no successor Administrative Agent shall have been appointed, then any
notice or other communication required or permitted to be given by the
Administrative Agent shall be sufficiently given if given by the Majority
Lenders, all notices or other communications required or permitted to be given
to the Administrative Agent shall be given to each Lender, and all payments to
be made to the Administrative Agent shall be made directly to the Borrower or to
the Lender for whose account such payment is made.
8.10 Additional Agents. If the Administrative Agent shall from time to
time deem it necessary or advisable, for its own protection in the performance
of its duties hereunder or in the interest of the Lenders, the Administrative
Agent and the Borrower shall execute and deliver a supplemental agreement and
all other instruments and agreements necessary or advisable, in the opinion of
the Administrative Agent, to constitute one or more other Persons designated by
the Administrative Agent, to act as an "Agent", with such titles as may be
designated by the Administrative Agent, including but not limited to,
Co-Arranger, Co-Agent, or Co-Documentation Agent. None of the Lenders designated
as an Agent (which term includes, without limitation, the Co-Agents) herein or
in any other document or instrument executed and delivered in connection
herewith 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 any fiduciary relationship with any other Lender hereunder or under the
other Loan Documents. Each Lender acknowledges that it has not relied, and will
not rely, on any of the Lenders so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
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8.11 Calculations. The Administrative Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith
and without gross negligence or willful misconduct. If such calculation,
apportionment or distribution is subsequently determined to have been made in
error, the sole recourse of any Lender to whom payment was due but not made
shall be to recover from the other Lenders any payment in excess of the amount
to which they are determined to be entitled or, if the amount due was not paid
by Borrower, to recover such amount from Borrower.
8.12 Administrative Agent In Its Individual Capacity. With respect to
its Commitment hereunder and the Obligations owing to it, the Administrative
Agent shall have the same rights and powers under this Agreement and each other
Loan Document as any other Lender and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender", "Holder of Notes" and like
terms shall include the Administrative Agent in its individual capacity as such.
The Administrative Agent and its Affiliates may, without liability to account,
make loans to, accept deposits from, acquire debt or equity interests in, act as
trustee under indentures of, enter into Interest Rate Hedging Agreements with,
serve as "Administrative Agent" for other financing vehicles, issue letters of
credit on behalf of, and engage in any other business with, (a) the Borrower or
any of its stockholders, Subsidiaries or Affiliates, or (b) any other Person,
whether such other Person may be engaged in any conflict or dispute with the
Borrower, any Restricted Subsidiary or any Lender or otherwise, as though the
Administrative Agent were not the Administrative Agent hereunder.
ARTICLE IX
SPECIAL INTER-company PROVISIONS
9.1 Acknowledgements of Synergies and Inter-dependence.
(a) The Borrower and each Guarantor will enjoy significant benefits
from the business conducted by the other such Persons because of, inter alia,
their combined ability to bargain with other Persons including without
limitation their ability to negotiate the credit facilities for the Borrower on
the favorable terms granted by this Agreement and other Loan Documents which
would not have been available to an individual Guarantor acting alone. Each
Guarantor has determined that it is in its best interest to procure credit
facilities which the Borrower may utilize directly and which receive the credit
support of the other Guarantors as contemplated by this Agreement and the other
Loan Documents.
(b) The Lenders have advised the Borrower that they are unwilling
to enter into this Agreement and the other Loan Documents and make available the
credit facilities extended hereby unless each Guarantor agrees, among other
things, to be liable for the due and proper payment of the obligations of
Borrower under this Agreement and other Loan Documents, and unless each
Guarantor agrees to be bound by the terms and conditions applicable thereto set
forth herein. Each Guarantor has determined that it is in its best interest and
in pursuit of its purposes that it so induce the Lenders to extend credit
pursuant to this Agreement and the other documents executed in connection
herewith (i) because of the desirability to each such Person of the credit
facilities, the interest rates and the modes of borrowing available to Borrower
hereunder, and (ii) because each such Person may engage in transactions jointly
with other such Persons.
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(c) Each Guarantor has determined that it has and, after giving
effect to the transactions contemplated by this Agreement and the other Loan
Documents (including, without limitation, the inter-company arrangement set
forth in this Article 9) will have, assets having a fair saleable value in
excess of the amount required to pay its probable liability on its existing
debts as they fall due for payment and that the sum of its debts is not and will
not then be greater than all of its property at a fair valuation, that such
Person has, and will have, access to adequate capital for the conduct of its
business and the ability to pay its debts from time to time incurred in
connection therewith as such debts mature and that the value of the benefits to
be derived by such Person from the access to funds under this Agreement
(including, without limitation, the inter-company arrangement set forth in this
Article 9) is reasonably equivalent to the obligations undertaken pursuant
hereto.
9.2 Certain Inter-Company Agreements.
(a) Subject to paragraph (b) below, the Borrower and each Guarantor
as indemnitor shall indemnify the other such Persons as indemnitees for all
Obligations incurred by the indemnitee for proceeds of Loans advanced to the
indemnitor.
(b) The rights and obligations of the Borrower and Guarantors
pursuant to paragraph (a) above shall be subordinated in all respects to the
rights of the Administrative Agent and the Lenders with respect to the
Obligations and, accordingly, the Borrower and each Guarantor agrees that each
of them shall not make any payment or receive any payment pursuant to the
preceding paragraph (a) at any time a Default has occurred and is continuing or
would be caused thereby. The Borrower and each Guarantor agrees that in the
event any of them receives any payment described by or in violation of this
paragraph (b), such Person(s) shall accept such payment as agent of the
Administrative Agent, for the benefit of the Lenders, and hold the same in trust
on behalf of and for the benefit of the Administrative Agent, for the benefit of
the Lenders.
9.3 Borrower's Records. Borrower (for itself and on behalf of each
Guarantor) shall maintain records specifying (a) all Obligations incurred by the
Borrower and guaranteed by the Guarantors, (b) the date of such incurrence, (c)
the date and amount of any payments made in respect of such Obligations and (d)
all inter-company obligations pursuant to paragraph 9.2 above. Borrower shall
make copies of such records available to the Administrative Agent, upon request.
ARTICLE X
DEFINITIONS; CONSTRUCTION
10.1 Certain Definitions. As used in this Agreement, the following terms have
the following meanings (terms defined in the singular to have a correlative
meaning when used in the plural), unless the context hereof otherwise clearly
requires:
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"Accumulated Funding Deficiency" has the meaning given to such term in
ss.4001(a)(18) of ERISA.
"Adjusted Actual Proceeds" has the meaning ascribed to such term in
Section 1.6(b)(ii).
"Administrative Agent" has the meaning ascribed to such term in the
preamble of this Agreement.
"Affiliate" of a Person (the "Specified Person") shall mean (a) any
Person which directly or indirectly controls, or is controlled by, or is under
common control with, the Specified Person, (b) any director or officer (or, in
the case of a Person which is not a corporation, any individual having analogous
powers) of the Specified Person or of a Person who is an Affiliate of the
Specified Person within the meaning of the preceding clause (a), and (c) for
each individual who is an Affiliate of the Specified Person within the meaning
of the foregoing clauses (a) or (b), any other individual related to such
Affiliate by consanguinity within the third degree or in a step or adoptive
relationship within such third degree or related by affinity with such Affiliate
or any such individual. For purposes of the preceding sentence, "control" of a
Person means (a) the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" has the meaning ascribed to such term in Section 8.10
(Additional Agents).
"Agreement" means this Credit Agreement as the same may be amended,
modified, restated or supplemented from time to time in accordance with its
terms.
"Applicable Margin" means a marginal rate of interest which is added to
the LIBO Rate or Prime Rate to determine the effective rate of interest on LIBO
Rate Loans or the Prime Rate Loans, as the case may be. The Applicable Margin
shall be determined in the following manner:
For any LIBO Rate Loan or Prime Rate Loan, the Applicable Margin shall be the
percentage amount set forth below under the caption "Applicable Margin" for such
Loan opposite the relevant Consolidated Funded Debt/Consolidated EBITDA Ratio:
Consolidated Funded Debt/ Applicable Margin Applicable Margin
Consolidated EBITDA Ratio LIBO Rate Loans Prime Rate Loans
------------------------- --------------- ----------------
< 2.0 2.25% .75%
> 2.0 and < 2.5 2.50% 1.00%
> 2.50 3.00% 1.25%
Notwithstanding anything above to the contrary, from the Closing Date through
February 28, 2004, the Applicable Margin for LIBO Rate Loans shall be 3.00% and
the Applicable Margin for Prime Rate Loans shall be 1.25%.
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The Applicable Margin shall be adjusted on the first Business Day of the month
after delivery of each Officer's Compliance Certificate under Section 5.1 (Basic
Reporting Requirements) or in the event of any Permitted Acquisition, on the
first Business day of the month after closing and delivery of the Pro-Forma
Covenant Compliance Certificate required for the acquisition. If an Officer's
Compliance Certificate is required to be delivered pursuant to Section 5.1
(Basic Reporting Requirements) and is not delivered by its deadline, then five
Business Days after notice to Borrower the Applicable Margin shall be the
highest rate specified above until the Officer's Compliance Certificate is so
delivered.
"Assignment and Acceptance Agreement" shall have the meaning ascribed
to such term in Section 11.9 (Successors and Assigns).
"Available RC Commitment" means, as of any date, the difference
obtained by subtracting (a) minus (b) where (a) is the amount of the RC
Commitment on such date and (b) is the aggregate outstanding principal amount of
all RC Loans plus Contingent Reimbursement Obligations on such date plus the
aggregate outstanding amount of all unreimbursed Drawings.
"Bank Tax" means (i) any Tax based on or measured by net income of a
Lender, any franchise Tax and any doing business Tax imposed upon any Lender by
any jurisdiction (or any political subdivision thereof) in which such Lender or
any lending office of a Lender is located and (ii) for the purposes of Section
1.12 (Taxes on Payments), any other Tax imposed by a jurisdiction other than the
United States or a political subdivision thereof that would not have been
imposed but for a present or former connection between such Lender or lending
office (as the case may be) and such jurisdiction.
"Business Day" means any day other than a Saturday, Sunday, public
holiday under the laws of the Commonwealth of Pennsylvania, or other day on
which banking institutions are authorized or obligated to close in the city in
which the Administrative Agent's Domestic Lending Office is located provided,
however, that whether or not expressly stated in this Agreement or other Loan
Documents, when "Business Day" is used with respect to any LIBO Rate Loan, such
Business Day must also be a Eurodollar Business Day.
"Capital Expenditures", of any Person shall mean, for any period, all
expenditures (whether paid in cash or accrued as liabilities during such period)
of such Person during such period which would be classified as capital
expenditures in accordance with GAAP (including, without limitation,
expenditures for maintenance and repairs which are capitalized, Capitalized
Leases to the extent an asset is recorded in connection therewith in accordance
with GAAP, and Purchase Money Indebtedness), but excluding any capital assets
acquired as part of a Permitted Acquisition.
"Capitalized Lease" shall mean at any time any lease, other than a real
estate lease or automobile lease, which is, or is required under GAAP to be,
capitalized on the balance sheet of the lessee at such time, and "Capitalized
Lease Obligation" of any Person at any time shall mean the aggregate amount
which is, or is required under GAAP to be, reported as a liability on the
balance sheet of such Person at such time as lessee under a Capitalized Lease.
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"Cash Equivalent Investments" shall mean any of the following, to the
extent acquired for investment and not with a view to achieving trading profits:
(a) obligations fully backed by the full faith and credit of the United States
of America maturing not in excess of nine months from the date of acquisition,
(b) commercial paper maturing not in excess of nine months from the date of
acquisition and rated "P-1" by ▇▇▇▇▇'▇ Investors Service or "A-1" by Standard &
Poor's Corporation on the date of acquisition, and (c) the following obligations
of any domestic commercial bank having capital and surplus in excess of
$500,000,000, which has, or the holding company of which has, a commercial paper
rating meeting the requirements specified in clause (b) above: (i) time
deposits, certificates of deposit and acceptances maturing not in excess of nine
months from the date of acquisition, or (ii) repurchase obligations with a term
of not more than seven days for underlying securities of the type referred to in
clause (a) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute of similar
import, and regulations thereunder, in each case as in effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be amended
from time to time.
"Change of Management" shall mean: (a) that a majority of the Board of
Directors of Borrower shall be other than those who were directors on the date
hereof; or (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for any reason shall cease to serve as chief
executive officer of Borrower, provided, however, that the cessation of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇'▇ status as chief executive officer shall not fall within the definition
of a Change of Management so long as a replacement is hired within ninety (90)
calendar days of such cessation who is reasonably satisfactory to the Super
Majority Lenders.
"Citizens" has the meaning ascribed to such term in the preamble of
this Agreement.
"Closing Date" means the date of execution and delivery of this
Agreement and satisfaction of the conditions in Section 3.1 (Conditions to
Initial Loans) above.
"Closing Date NCPM Interest" means an equity interest in NCPM equal to
sixty-three percent (63%), representing all of the interest in NCPM directly or
indirectly owned by the Borrower on the Closing Date.
"Co-Agents" shall have the meaning ascribed in the introductory
paragraph hereof.
"COBRA Violation" means any violation of the "continuation coverage
requirements" of "group health plans" of former ss.162(k) of the Code (as in
effect for tax years beginning on or before December 31, 1988) and of ss.4980B
of the Code (as in effect for tax years beginning on or after January 1, 1989)
and Part 6 of Subtitle B of Title I of ERISA.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time, and the Treasury regulations thereunder.
"Collateral" shall mean the property from time to time subject to the
Liens of the Security Documents.
"Commitments" shall mean the RC Commitments and the Term Loan
Commitments.
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"Consolidated EBIT" for any period, with respect to Borrower and its
consolidated Subsidiaries, shall mean the sum of (a) Consolidated Net Income for
such period, (b) Consolidated Interest Expense for such period, (c) charges
against income for Taxes for such period, (d) extraordinary losses to the extent
included in determining such Consolidated Net Income, minus (e) extraordinary
gains to the extent included in determining such Consolidated Net Income, all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" for any period, with respect to Borrower and its
consolidated Subsidiaries, shall mean the sum of (a) Consolidated EBIT for such
period, (b) depreciation expense for such period, and (c) amortization expense
for such period, all as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Fixed Charge Coverage Ratio" with respect to Borrower and
its consolidated subsidiaries, shall mean the ratio, calculated as of the end of
each fiscal quarter for the 12-month period then ended, of (a) Consolidated
EBITDA minus Capital Expenditures for such 12-month period to (b) the sum for
such 12-month period of (i) Consolidated Interest Expense, plus (ii) scheduled
principal payments on Indebtedness (but excluding Non-Recourse Indebtedness),
plus (iii) Taxes, all as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Funded Debt" shall mean all Indebtedness (but excluding
Non-Recourse Indebtedness) of Borrower and its consolidated Subsidiaries for
borrowed money, including without limitation the Obligations, Capitalized Leases
and Subordinated Debt.
"Consolidated Interest Coverage Ratio" shall mean the ratio, calculated
as at the end of each fiscal quarter for the 12-month period then ended, of
Consolidated EBIT for such 12-month period to the Consolidated Interest Expense
for such 12-month period.
"Consolidated Interest Expense" for any period shall mean the sum of
Interest Expense of Borrower and its consolidated Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" for any period shall mean the net earnings
(or loss) after taxes of Borrower and its consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided,
that there shall be deducted therefrom (a) income (or loss) accounted for by
Borrower on the equity method because of the income (or loss) during such period
of any Person (other than a consolidated Subsidiary) in which Borrower or any of
its consolidated Subsidiaries has an ownership interest, but the deduction for
such equity income shall be reversed to the extent that during such period or at
any subsequent time an amount not in excess of such income has been actually
received by Borrower or any of its consolidated Subsidiaries in the form of cash
or cash equivalents, (b) income (or loss) of a Subsidiary which is a non-United
States Person, but the deduction for such Subsidiary income (or loss) shall be
reversed to the extent that during such period or at any subsequent time an
amount not in excess of such income has been actually received by Borrower or
any of its consolidated Subsidiaries in the form of cash or property dividends
or similar distributions, not subject to foreign currency translation, (c) the
undistributed earnings of any consolidated Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is restricted (whether such restriction arises by operation of Law, by
agreement, by its articles of incorporation or by-laws or other constituent
documents, or otherwise), (d) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made against
income during such period, and (e) any gain arising from the acquisition of
securities, or the extinguishment, under GAAP, of any Indebtedness of Borrower
or any of its consolidated Subsidiaries (but excluding Non-Recourse
Indebtedness).
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"Consolidated Net Worth" at any time shall mean the total amount of
stockholders' equity of Borrower and its consolidated Subsidiaries at such time
determined on a consolidated basis in accordance with GAAP; provided, however,
that Consolidated Net Worth shall not include impairments to goodwill related to
acquisitions resulting from FASB Statement of Financial Accounting Standards No.
142.
"Consolidated Pro-Forma Revenue" for any period shall mean (a) all
revenue reported on the consolidated financial statements of the Borrower
provided pursuant to Section 5.1 (Basic Reporting Requirements) for the period,
plus (b) to the extent not included in such reported revenue, revenues during
the period generated by properties or businesses Borrower acquires in Permitted
Acquisitions during the period, minus (c) to the extent not already excluded
from the revenue numbers under clauses (a) and (b), any revenues generated by
properties or businesses that Borrower or an acquired company has divested
during the period.
"Consolidated Senior Debt" shall mean all Indebtedness of Borrower and
its Consolidated Subsidiaries for borrowed money, including without limitation
the Obligations and Capitalized Leases, but excluding Subordinated Debt and
Non-Recourse Indebtedness.
"Contingent Reimbursement Obligation" shall mean the contingent
obligation of the Borrower to reimburse the Issuer for any Drawings that may be
made under an outstanding Letter of Credit, whenever issued. Without limiting
the generality of the foregoing, the amount of all Contingent Reimbursement
Obligations at any time shall be the aggregate amount available to be drawn
under outstanding Letters of Credit at such time.
"Controlled Group Member" shall mean each trade or business (whether or
not incorporated) which together with Borrower is treated as a single employer
under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections 414(b), (c), (m)
or (o) of the Code.
"Counterparties" has the meaning ascribed to such term in Section 5.12
(Interest Rate Hedging Agreements).
"Creditrust Entities" means those entities listed on Schedule 10.1
hereto.
"Current Assets" means current assets of Borrower and its consolidated
Subsidiaries in accordance with GAAP.
"Current Liabilities" means current liabilities of Borrower and its
consolidated Subsidiaries in accordance with GAAP.
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"Debt Portion of the NCPM Investment" means Twenty Five Million Dollars
($25,000,000.00) (representing the maximum commitment under the NCPM/NCOG Credit
Agreement at any time after December 31, 2003).
"Default" means any event or condition which with notice, passage of
time or both, would constitute an Event of Default.
"Default Rate" means, with respect to any amounts payable hereunder or
under the other Loan Documents, a rate equal to the sum of (a) two percent (2%)
per annum plus (b) the interest rate otherwise in effect with respect to such
amounts or, if no such rate is otherwise in effect with respect to such amounts,
a rate equal to the sum of (i) the Prime Rate plus (ii) two percent (2%) per
annum.
"Division Sale Notes" means the promissory notes of each of Creative
Marketing Strategies, Inc. and TRC Holdings, Inc. originally issued to NCO
Teleservices, Inc., and any note issued in substitution therefor, together with
all extensions and renewals thereof, in whole or in part, in each case as the
same may be amended, modified, restated or supplemented from time to time.
"Dollar," "Dollars" and the symbol "$" means lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender (i) the
office designated as such on the signature page hereof, or (ii) the branch or
office of such Lender designated, from time to time, by such Lender in a notice
to the Administrative Agent and Borrower.
"Drawing" shall mean (a) any amount disbursed by the Issuer pursuant to
the terms of a Letter of Credit or (b) as the context may require, the
obligation of the Borrower to reimburse the Issuer for such disbursement.
"Eligible Institution" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at least
$1,000,000,000.00; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a combined
capital and surplus of at least $1,000,000,000.00; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or under the laws of a political subdivision of
any such country, and having a combined capital and surplus of at least
$1,000,000,000.00, so long as such bank is acting through a branch or agency
located in the United States; and (vi) a finance company, insurance company or
other financial institution or fund (whether a corporation, partnership, trust
or other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having a combined
capital and surplus or total assets of at least $500,000,000.00 and (vii) with
respect to any Lender that is a fund, any other fund with assets in excess of
$100,000,000.00 that invests in bank loans and is managed by the same investment
advisor as such ▇▇▇▇▇▇; provided, however, that neither Borrower nor any
Affiliate of Borrower shall qualify as an Eligible Institution under this
definition.
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"Environmental Affiliate" shall mean, with respect to any Person, any
other Person whose liability (contingent or otherwise) for any Environmental
Claim such Person has retained, assumed or otherwise is liable for (by Law,
agreement or otherwise).
"Environmental Approvals" shall mean any Governmental Action pursuant
to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any other
Person (including but not limited to any Governmental Authority, citizens' group
or present or former employee of such Person) alleging, asserting or claiming
any actual or potential (a) violation of any Environmental Law, (b) liability
under any Environmental Law or (c) liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person.
"Environmental Cleanup Site" shall mean any location which is listed or
proposed for listing on the National Priorities List, on CERCLIS or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any pending or threatened action, suit, proceeding or investigation
related to or arising from any alleged violation of any Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material, hazardous waste,
toxic substance, solid waste, pollutant, contaminant or any related material,
raw material, substance, product or by-product of any substance specified in or
regulated or otherwise affected by any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any similar state
Law), (b) any toxic chemical or other substance from or related to industrial,
commercial or institutional activities, and (c) asbestos, gasoline, diesel fuel,
motor oil, waste and used oil, heating oil and other petroleum products or
compounds, polychlorinated biphenyls, radon and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing or
subsequently enacted or amended, relating to (a) pollution or protection of the
environment, including natural resources, (b) exposure of Persons, including but
not limited to employees, to Environmental Concern Materials, (c) protection of
the public health or welfare from the effects of products, by-products, wastes,
emissions, discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture, formulation,
packaging, labeling, distribution, transportation, handling, storage or
disposal. Without limitation, "Environmental Law" shall also include any
Environmental Approval and the terms and conditions thereof.
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"Equity Percentage Sold" means, as of any date that the NCPM/NCOG
Credit Agreement is terminated, an amount equal to (A) divided by (B) where (A)
is the amount of equity of NCPM sold or otherwise disposed of by the Borrower on
or prior to such termination date and (B) is the Closing Date NCPM Interest, but
in any event the Equity Percentage Sold shall not be greater than one (1).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" means, with respect to any Lender, the
branch or office of such Lender designated by such Person on the signature page
hereof or in a notice to the Administrative Agent and Borrower.
"Event of Default" shall mean any of the Events of Default described in
Article VII hereof.
"Federal Funds Rate" for any day means the rate per annum determined by
the Administrative Agent (which determination shall be conclusive) to be the
rate per annum announced by the Federal Reserve Bank of New York on such day as
being the weighted average of the rates on overnight Federal funds transactions
arranged by federal funds brokers on the previous trading day, or, if such
Federal Reserve Bank does not announce such rate on any day, the rate for the
last day on which such rate was announced.
"First Tier Foreign Subsidiary" means those Subsidiaries directly owned
by Borrower or a Guarantor which are not United States Persons. The First Tier
Foreign Subsidiaries existing on the Closing Date are shown on Schedule 4.1(a)
hereto, which schedule may be updated from time to time pursuant to the terms
hereof.
"GAAP" has the meaning set forth in Section 10.3 (Accounting
Principles) hereof.
"Governmental Action" has the meaning set forth in Section 4.1(d)
hereof.
"Governmental Authority" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Guarantors" means each U.S. Restricted Subsidiary, now or hereafter
existing, together with each other Person hereafter becoming a "Guarantor"
pursuant to the terms of this Agreement.
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"Guaranty" means, with respect to any Person, any contractual or other
obligation, contingent or otherwise, of such Person to pay any Indebtedness or
other obligation of any other Person or to otherwise protect the holder of any
such Indebtedness or other obligation against loss (whether such obligation
arises by agreement to pay, to keep well, to purchase assets, goods, securities
or services or otherwise); provided, however, that the term "Guaranty" shall not
include an endorsement for collection or deposit in the ordinary course of
business. The term, "Guaranty," when used as a verb has the correlative meaning.
"Guaranty Equivalent" shall have the meaning set forth below: A Person
(the "Deemed Guarantor") shall be deemed to subject to a Guaranty Equivalent in
respect of any indebtedness, obligation or liability (the "Assured Obligation")
of another Person (the "Deemed Obligor") if the Deemed Guarantor directly or
indirectly guarantees, becomes surety for, endorses, assumes, agrees to
indemnify the Deemed Obligor against, or otherwise agrees, becomes or remains
liable (contingently or otherwise) for, such Assured Obligation. Without
limitation, a Guaranty Equivalent shall be deemed to exist if a Deemed Guarantor
agrees, becomes or remains liable (contingently or otherwise), directly or
indirectly: (a) to purchase or assume, or to supply funds for the payment,
purchase or satisfaction of, an Assured Obligation, (b) to make any loan,
advance, capital contribution or other investment in, or to purchase or lease
any property or services from, a Deemed Obligor (i) to maintain the solvency of
the Deemed Obligor, (ii) to enable the Deemed Obligor to meet any other
financial condition, (iii) to enable the Deemed Obligor to satisfy any Assured
Obligation or to make any Stock Payment or any other payment, or (iv) to assure
the holder of such Assured Obligation against loss, (c) to purchase or lease
property or services from the Deemed Obligor regardless of the non-delivery of
or failure to furnish of such property or services, (d) in a transaction having
the characteristics of a take-or-pay or throughput contract or as described in
paragraph 6 of FASB Statement of Financial Accounting Standards No. 47, or (e)
in respect of any other transaction the effect of which is to assure the payment
or performance (or payment of damages or other remedy in the event of nonpayment
or nonperformance) of any Assured Obligation.
"Indebtedness" of a Person shall mean:
(a) All obligations on account of money borrowed by, or credit
extended to or on behalf of, or for or on account of deposits with or
advances to, such Person;
(b) All obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(c) All obligations of such Person for the deferred purchase
price of property or services, including without limitation, with
respect to the Borrower and Restricted Subsidiaries, all obligations
incurred by such Persons to a seller in connection with any Permitted
Acquisition;
(d) All obligations secured by a Lien on property owned by
such Person (whether or not assumed); and all Capitalized Leases
Obligations (without regard to any limitation of the rights and
remedies of the holder of such Lien or the lessor under such
Capitalized Lease to repossession or sale of such property);
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(e) The amount available for drawing under all letters of
credit issued for the account of such Person and, without duplication,
the unreimbursed amount of all drafts drawn thereunder, and all other
obligations of such Person associated with such letters of credit or
draws thereon;
(f) All obligations of such Person in respect of acceptances
or similar obligations issued for the account of such Person;
(g) All obligations of such Person under a product financing
or similar arrangement described in paragraph 8 of FASB Statement of
Accounting Standards No. 49 or any similar requirement of GAAP; and
(h) All obligations of such Person under any interest rate or
currency protection agreement, interest rate or currency future,
interest rate or currency option, interest rate or currency swap or cap
or other interest rate or currency hedge agreement;
provided, however, that notwithstanding anything to the contrary set
forth above, Indebtedness will not include (i) accounts payable to
trade creditors arising out of purchases of goods or services in the
ordinary course of business and payable and paid on usual trade terms,
and (ii) deposits held by any Person for its customers in the ordinary
course of business.
"Indemnified Parties" shall mean the Administrative Agent, the Lenders,
their respective affiliates, and the directors, officers, employees, attorneys
and agents of each of the foregoing.
"Interest Expense" means, for any Person, for any period, the sum
(without duplication) of (a) all interest accrued (or accreted) on Indebtedness
(except Non-Recourse Indebtedness) of such Person during such period whether or
not actually paid plus (b) the net amount accrued under any Interest Rate
Hedging Agreements (or less the net amount receivable thereunder) during such
period.
"Interest Period" means with respect to any LIBO Rate Loan, (a)
initially, the period commencing on the borrowing or conversion date, as the
case may be, and ending one, two, three or six months thereafter as selected by
the Borrower pursuant to Section 1.7 (Interest) above and (b) thereafter, each
period commencing on the day after the last day of the preceding Interest Period
and ending one, two, three or six months thereafter, as selected by the Borrower
pursuant to Section 1.7 (Interest) above provided, however, if any such Interest
Period would otherwise end on a day which is not a Eurodollar Business Day, such
Interest Period shall be extended to the next succeeding Eurodollar Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Eurodollar Business Day and provided, further, if any such
Interest Period begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period (as may be the case
with an Interest Period commencing at the end of a calendar month) the Interest
Period shall end on the last Eurodollar Business Day of the relevant calendar
month.
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"Interest Rate Hedging Agreement" means any rate swap, cap or collar or
similar agreement between the Borrower and a financial institution respecting
the interest rate risk of the Borrower with respect to certain Indebtedness.
"Issuer" shall have the meaning set forth in the preamble.
"Law" means any law (including common law), constitution, statute,
treaty, convention, regulation, licensing requirement, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lender" has the meaning ascribed to such term in the preamble hereto.
"Letter of Credit" shall mean any letter of credit issued by Issuer
pursuant to Section 1.14 (Issuance of Letters of Credit) hereof.
"Letter of Credit Participation" shall mean, with respect to any
Lender, the participation interest of such Lender in any Letter of Credit
acquired pursuant to Section 1.14 (Issuance of Letters of Credit). The amount of
the Letter of Credit Participation of a Lender in any Letter of Credit shall be
deemed to be the amount equal to such ▇▇▇▇▇▇'s pro rata share (determined on the
basis of the RC Commitment at such time) of the sum of (a) the aggregate unpaid
amount of all Drawings thereunder at such time and (b) the amount of any
Contingent Reimbursement Obligations with respect thereto at such time.
"Letter of Credit Sublimit" shall mean $10,000,000.
"LIBO Rate" means, relative to any Interest Period for a LIBO Rate
Loan, the offered rate for deposits of Dollars in an amount approximately equal
to the amount of the LIBO Rate Loan for a term coextensive with the Interest
Period which the British Bankers' Association fixes as its LIBO rate and which
appears on the Telerate Page 3750 as of 11:00 a.m., London time, on the day
which is two (2) Business Days prior to the beginning of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest at the per annum rate of
the LIBO Rate plus Applicable Margin.
"Licenses" means any and all licenses, permits, franchises, rights to
conduct business, approvals by a Governmental Authority or otherwise, consents,
qualifications, operating authority, and/or any other authorizations.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Limitation" means a revocation, suspension, termination, impairment,
probation, limitation, non-renewal, forfeiture, declaration of ineligibility,
and/or loss of any other rights.
"Loan" shall mean any loan by the Lenders to Borrower under this
Agreement, and "Loans" shall mean all Loans made by the Lenders under this
Agreement.
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"Loan Documents" shall mean this Agreement, the Notes, the Subsidiary
Guaranties, the Security Documents, and all other agreements and instruments
extending, renewing, refinancing or refunding any indebtedness, obligation or
liability arising under any of the foregoing, in each case as the same may be
amended, modified or supplemented from time to time hereafter.
"Majority Lenders" means, as of any date, at least four Lenders
holding, in the aggregate, at least 51% of the aggregate outstanding Loans and
available Commitments. If any one Lender holds more than 35%, then Majority
Lenders shall include at least one Lender designated by the Administrative Agent
as an additional Agent under Section 8.10 (Additional Agents). If the
Administrative Agent holds less than 35% and another Lender holds more than 35%,
the Administrative Agent may count as the required "additional Agent" for
purposes of determining "Majority Lenders."
"Material Adverse Effect" shall mean: (a) a material adverse effect on
the business, operations or condition (financial or otherwise) of the Borrower
and its consolidated Subsidiaries taken as a whole, (b) a material adverse
effect on the ability of the Borrower and Restricted Subsidiaries, taken as a
whole, to perform or comply with any of the terms and conditions of any Loan
Document, or (c) a material adverse effect on the legality, validity, binding
effect, enforceability or admissibility into evidence of any Loan Document, or
the ability of the Lender to enforce any rights or remedies under or in
connection with any Loan Document.
"Maturity Date" shall mean March 15, 2006.
"Maximum NCPM Investment Amount" means Fifty Million Dollars
($50,000,000.00) (representing the maximum investment in NCPM by the Borrower at
any time after December 31, 2003).
"Mellon" has the meaning ascribed to such term in the preamble of this
Agreement.
"Monthly Payment Date" means the last Business Day of each month.
"Multiemployer Plan" has the meaning ascribed to such term in
ss.4001(a)(3) of ERISA.
"NCO Financial" has the meaning ascribed in the recitals hereto.
"NCOG" has the meaning ascribed in the preamble hereto.
"NCPM" means NCO Portfolio Management, Inc.
"NCPM/NCOG Commitment" means the obligation of Borrower to make loans
to NCPM under the NCPM/NCOG Credit Agreement, as the same is required to be
reduced from time to time pursuant to the terms hereof and may otherwise be
reduced pursuant to the terms thereof.
"NCPM/NCOG Credit Agreement" means a credit agreement between the
Borrower and NCPM providing for revolving credit loans from Borrower to NCPM in
an aggregate principal amount not to exceed the NCPM/NCOG Commitment as in
effect at any time, as the same may be amended, restated, modified and/or
supplemented from time to time.
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"NCPM/NCOG Note" means a promissory note to be issued by NCPM to the
Borrower pursuant to the NCPM/NCOG Credit Agreement, as the same may be amended,
restated, modified and/or supplemented from time to time with the consent of the
Majority Lenders (except for Permitted Amendments).
"Non-Guarantor Subsidiary" has the meaning ascribed in Section 5.16(a)
hereto.
"Non-Recourse Indebtedness" means obligations of NCPM and its
Subsidiaries which are non-recourse as to NCOG and the U.S. Restricted
Subsidiaries, are secured by pools of Accounts of NCPM and its Subsidiaries, and
are permitted under the NCPM/NCOG Credit Agreement.
"Non-Surety Entities" means Subsidiaries of the Borrower listed on
Schedule 10.1 hereto, and any other Subsidiary of NCPM that does not guaranty
the Indebtedness of NCPM under the NCPM/NCOG Credit Agreement at any time that
it is in effect.
"Non-U.S. Lender" means any Lender that is not a United States Person.
"Note" means RC Notes and Term Loan Notes.
"Obligations" shall mean all indebtedness, obligations and liabilities
of the Borrower or any Guarantor to the Administrative Agent and the Lenders
from time to time arising under or in connection with or related to or evidenced
by or secured by or under color of this Agreement, any other Loan Document, or
any Qualified Interest Rate Hedging Agreement, together with all extensions,
renewals or refinancings thereof, whether such indebtedness, obligations or
liabilities are direct or indirect, otherwise secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising. Without limitation of the
foregoing, such indebtedness, obligations and liabilities include the principal
amount of all Loans, Letters of Credit, interest, fees, indemnities or expenses
under or in connection with this Agreement or any other Loan Document, and all
extensions, renewals and refinancings thereof, whether or not such Loans were
made, or such Letters of Credit were issued, in compliance with the terms and
conditions of this Agreement or in excess of the obligation of the Lender to
lend. Obligations shall remain Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Obligations or
any interest therein.
"Officer's Compliance Certificate" means a certificate, as of a
specified date, of the chief financial officer or controller of Borrower in
substantially the form of Exhibit I hereto as to each of the following: (a) the
absence of any Event of Default or Default on such date, (b) the truth of the
representations and warranties herein and in the other Loan Documents as of such
date, and (c) compliance with the financial covenants set forth in Article 6.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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"Pension Plan" means a pension plan (as defined in ss.3(2) of ERISA)
which is subject to Part 3 of Subtitle B of Title I of ERISA or subject to
ss.412 of the Code and maintained by Borrower or any member of its Controlled
Group.
"Pension-Related Event" shall mean any of the following events or
conditions:
(a) Any action is taken by any Person (i) to terminate, or
which would result in the termination of, a Plan, either pursuant to
its terms or by operation of law (including, without limitation, any
amendment of a Plan which would result in a termination under Section
4041(e) of ERISA), or (ii) to have a trustee appointed for a Plan
pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination that an
event described in Section 4042 of ERISA has occurred with respect to a
Plan, that a Plan should be terminated, or that a trustee should be
appointed for a Plan;
(c) Any Reportable Event occurs with respect to a Plan;
(d) Any action occurs or is taken which could result in the
Borrower or any Restricted Subsidiary becoming subject to liability for
a complete or partial withdrawal by any Person from a Multiemployer
Plan (including, without limitation, seller liability incurred under
Section 4204(a)(2) of ERISA), or the Borrower, any Restricted
Subsidiary or any Controlled Group Member receives from any Person a
notice or demand for payment on account of any such alleged or asserted
liability; or
(e) (i) There occurs any failure to meet the minimum funding
standard under Section 302 of ERISA or Section 412 of the Code with
respect to a Plan, or any tax return is filed showing any tax payable
under Section 4971(a) of the Code with respect to any such failure, or
the Borrower, any Restricted Subsidiary or any Controlled Group Member
receives a notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, or (ii) any request is
made by any Person for a variance from the minimum funding standard, or
an extension of the period for amortizing unfunded liabilities, with
respect to a Plan.
"Permitted Acquisition" shall mean any acquisition (by way of stock
purchase, merger, asset purchase or otherwise) by the Borrower or any Restricted
Subsidiary of all of the properties or stock of any going concern or going line
of business; provided, however, that (1) each such business being acquired by
any such Person must (a) have a positive EBITDA for the immediately preceding
twelve months prior to the acquisition, after adjustments for unusual expense
items and (b) be in the same or a similar line of business as such Person; (2)
after recasting the Borrower's consolidated financial statements for the
immediately preceding twelve month period to include the results of operations
from the target of the acquisition, and preparing pro forma financial statements
for the immediately succeeding twelve month period, the acquiring Person and
target on a consolidated basis shall have met the financial covenants described
in Section 6.1 (Financial Covenants) of this Agreement for the immediately
preceding twelve months prior to the acquisition and on a pro forma basis for
the immediately following twelve month period after the acquisition (such
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compliance to be evidenced by a Pro-Forma Covenant Compliance Certificate in the
form of Exhibit H attached hereto ("Pro-Forma Covenant Compliance Certificate");
(3) with respect to any merger involving the Borrower, it shall be the surviving
corporation, and with respect to any merger involving a Restricted Subsidiary
which is not a Guarantor (but not involving the Borrower or a Guarantor), it
shall be the surviving corporation, and with respect to any merger involving a
Guarantor (but not involving the Borrower), the Guarantor shall be the surviving
corporation (unless the target survives and becomes a Guarantor pursuant to the
terms hereof); (4) after giving effect to the acquisition, no Event of Default
or Default shall exist; (5) the disclosure schedules shall be updated to account
for the acquisition as required by Section 5.17 (Update of Schedules); and (6)
the cash consideration to be paid by the acquiring Persons for all such
acquisitions must not exceed (x) if the Consolidated Funded Debt to Consolidated
EBITDA Ratio is equal to or greater than 2.00 to 1.00, an aggregate amount of
$20,000,000.00 cash or Borrower common stock in any rolling twelve month period,
or (y) if the Consolidated Funded Debt to Consolidated EBITDA Ratio is less than
2.00 to 1.00, $25,000,000.00 cash (but no limitation on the amount funded with
Borrower common stock) in any rolling twelve month period. Any acquisition which
does not meet the criteria set forth in clause (1)(a) above in this definition
requires the prior written consent of the Super Majority Lenders. In addition to
the foregoing, any Permitted NCPM Purchase Transaction made in accordance with
Section 6.10(d) shall be deemed to be a Permitted Acquisition.
"Permitted Acquisition Indebtedness" means Indebtedness incurred by the
Borrower or any Restricted Subsidiary to the seller in connection with a
Permitted Acquisition that is (1) unsecured, (2) subordinated to the Obligations
as provided in the next sentence, and (3) without financial covenants binding on
the Borrower or any Restricted Subsidiary. The terms of subordination, which at
the request of the Administrative Agent shall be embodied in a separate
subordination agreement in substantially the form of Exhibit J attached hereto,
shall prohibit the Borrower and Restricted Subsidiaries from making any payments
of principal, interest, or other sums on the Indebtedness and shall prohibit the
subordinated creditor from taking any enforcement action following an Event of
Default under this Agreement; provided that prior to an Event of Default, the
Borrower or a Restricted Subsidiary may make regularly scheduled payments of
principal and interest on the Indebtedness. Despite the foregoing, (1) the
Borrower and Restricted Subsidiaries may incur up to an aggregate of
$2,000,000.00 (based on the original principal amount of notes outstanding at
any one time) in Indebtedness to sellers in connection with Permitted
Acquisitions on which the Borrower and Restricted Subsidiaries may make
regularly scheduled payments of principal and interest despite the existence of
an Event of Default (other than a bankruptcy or insolvency default, in which
case such payments will be prohibited until the Obligations have been repaid in
full) so long as such Indebtedness otherwise meets the above requirements
(except that the subordination agreement shall be in substantially the form of
Exhibit K attached hereto) and (2) the Borrower and Restricted Subsidiaries may
incur up to an aggregate of $10,000,000.00 (based on the original principal
amount of notes outstanding at any one time) in Indebtedness to sellers in
connection with Permitted Acquisitions on which the Borrower and Restricted
Subsidiaries may make regularly scheduled payments of principal and interest
until the occurrence of an Event of Default and may resume such payments six
months after the occurrence of such Event of Default (unless the Event of
Default is a bankruptcy or insolvency default, or an Event of Default as to
which the Lenders are exercising remedies; in any such case such payments will
be prohibited until the Obligations have been repaid in full) so long as such
Indebtedness otherwise meets the above requirements (except that the
subordination agreement shall be in substantially the form of Exhibit L attached
hereto). "Permitted Acquisition Indebtedness" shall also include other seller
debt, the terms of which are approved by the Majority Lenders.
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"Permitted Amendments" means, with respect to the NCPM/NCOG Credit
Agreement or any agreements or instruments entered into in connection therewith,
any amendment or waiver that (a) does not increase the total amount of the
NCPM/NCOG Credit Agreement commitment; that does not decrease the rate of
interest or fees payable thereunder; does not extend the final maturity or any
mandatory reduction in the amount of the facility; does not change the secured
nature of the facility; does not change financial covenants; does not permit
additional Indebtedness in an aggregate amount in excess of $500,000.00; does
not permit additional Liens except to secure the aforesaid permitted additional
indebtedness (which as to Non-Surety Entities, may be cross-collateralized);
does not change the definition of Non-Surety Entities; and does not permit
additional acquisitions or dispositions outside of the ordinary course of
business of NCPM and its Subsidiaries; and (b) is acceptable to the
Administrative Agent in its sole discretion. Any determination made by the
Administrative Agent as to whether an amendment is a Permitted Amendment is
conclusive, absent manifest error.
"Permitted ▇▇▇▇ ▇▇ Investments" means any purchase by the Borrower or
any Restricted Subsidiary of an equity interest in a Person whose sole line of
business is the acquisition of the type of publicly traded debt referred to in
the definition of Permitted Bond Purchases.
"Permitted Bond Purchases" means any purchase by the Borrower or any
Restricted Subsidiary of publicly traded debt (including, without limitation,
bonds, notes, or any other publicly traded debt security) issued by a Person
that engages in businesses that are the same as or similar to those of the
Borrower and the Restricted Subsidiaries.
"Permitted Liens" shall have the meaning set forth in Section 6.2
(Liens) hereof.
"Permitted NCPM Purchase Transaction" means the purchase or other
acquisition by Borrower, after prior written notice to the Administrative Agent,
of all or a portion of the remaining minority equity interest in NCPM so long as
the consideration therefor (excluding cash closing expenses) consists
exclusively of Borrower common stock.
"Permitted NCPM Sale Transaction" means the sale or other disposition
by Borrower of all or a portion of its equity ownership interest in NCPM for
fair market value, after prior written notice to the Administrative Agent,
resulting in cash proceeds in an amount equal to or greater than the Maximum
NCPM Investment Amount, in the case of all, or the Proportionate NCPM Sale
Amount, in the case of less than all.
"Person" means an individual, corporation, partnership, trust,
unincorporated association, limited liability company, joint venture,
joint-stock company, Governmental Authority or any other entity.
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"Plan" means any employee pension benefit plan within the meaning of
Section 3(2) of ERISA (other than a Multiemployer Plan) covered by Title IV of
ERISA by reason of Section 4021 of ERISA, of which the Borrower, any Restricted
Subsidiary or any Controlled Group Member is or has been within the preceding
five years a "contributing sponsor" within the meaning of Section 4001(a)(13) of
ERISA, or which is or has been within the preceding five years maintained for
employees of the Borrower, any Restricted Subsidiary or any Controlled Group
Member.
"Prime Rate" means the interest rate per annum announced from time to
time by the Administrative Agent as its prime rate. The Prime Rate may be
greater or less than other interest rates charged by the Administrative Agent to
other customers.
"Prime Rate Loan" means any Loan bearing interest at the Prime Rate
plus the Applicable Margin.
"Pro-Forma Covenant Compliance Certificate" has the meaning ascribed to
such term in the definition of "Permitted Acquisition."
"Prohibited Transaction" has the meaning given to such term in ss.406
of ERISA or ss.4975(c) of the Code.
"Proportionate NCPM Investment Amount" means, as used in connection
with any sale of an interest in NCPM that is less than the Closing Date NCPM
Interest, an amount equal to the product of (A) multiplied by (B) divided by (C)
where,
(A) equals the percentage interest in NCPM subject to such sale,
(B) equals the Maximum NCPM Investment Amount, and
(C) equals the Closing Date NCPM Interest.
By way of example, if twenty percent (20%) of equity of NCPM were
subject to sale on January 1, 2004, the Proportionate NCPM Investment amount
would be equal to (A) 20 multiplied by (B) $50,000,000 divided by (C) 63 or
$15,873,016.
"Purchase Money Indebtedness" shall mean at any time any Indebtedness
incurred for the deferred purchase price in connection with a Capital
Expenditure.
"Qualified Interest Rate Hedging Agreement" has the meaning given to
such term in Section 5.21 (Interest Rate Hedging Agreements).
"Quarterly Payment Dates" means the last Business Day of each
September, December, March and June.
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"RC Commitment" means, with respect to any Lender, (a) the obligation
of such Lender to make RC Loans and participate in Letters of Credit in an
amount as set forth opposite such ▇▇▇▇▇▇'s name under the heading "RC
Commitment" on Schedule 1.1 (as such Schedule may be amended from time to time)
hereto or, in the case of a Lender that becomes a Lender pursuant to an
assignment, the amount of the assignor's RC Commitment assigned to such Lender,
in either case as the same may be reduced from time to time pursuant to Section
1.6 (Mandatory Prepayments and RC Commitment Reductions) above or increased or
reduced from time to time pursuant to assignments in accordance with Section
11.9 (Successors and Assigns) below, or (b) as the context may require, the
obligation of such Lender to make RC Loans in an aggregate unpaid principal
amount not exceeding such amount; and "RC Commitment" means, with respect to all
Lenders, the sum of their individual RC Commitments.
"RC Loan" has the meaning ascribed to such term in Section 1.1 (Loans)
of this Agreement.
"RC Note" means each promissory note of the Borrower issued to a Lender
relating to such Lender's RC Loans and RC Commitments (if any) substantially in
the form of Exhibit A-1 hereto, together with any allonges thereto, from time to
time, and any promissory note issued in substitution therefor pursuant to the
terms hereof, together with all extensions, renewals, refinancings or refundings
thereof in whole or part, in each case as the same may be amended, modified,
restated or supplemented from time to time.
"Records" of the Administrative Agent or "Administrative Agent's
Records" has the meaning given to such term in Section 8.8 (Administrative
Agent's Records) hereof.
"Registered Lender" has the meaning ascribed to such term in Section
1.13 (Registered Notes and Loans) hereof.
"Registered Note" has the meaning ascribed to such term in Section 1.13
hereof (Registered Notes and Loans).
"Regulatory Change" means any applicable law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Closing Date (including any applicable law that shall have become such
as the result of any act or omission of the Borrower or any of its Affiliates,
without regard to when such applicable law shall have been enacted or
implemented), whether the same is (a) the result of an enactment by a government
or any agency or political subdivision thereof, a determination of a court or
regulatory authority or otherwise or (b) enacted, adopted, issued or proposed
before or after the Closing Date, including any such that imposes, increases or
modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but excluding any such
that imposes, increases or modifies any Bank Tax.
"Reorganization" has the meaning ascribed to such term in ERISA.
"Reportable Event" means (a) a reportable event described in Section
4043 of ERISA, (b) a withdrawal by a substantial employer from a Plan to which
more than one employer contributes, as referred to in Section 4063(b) of ERISA,
(c) a cessation of operations at a facility causing more than twenty percent
(20%) of Plan participants to be separated from employment, as referred to in
Section 4062(e) of ERISA, or (d) a failure to make a required installment or
other payment with respect to a Plan when due in accordance with Section 412 of
the Code or Section 302 of ERISA which causes the total unpaid balance of missed
installments and payments (including unpaid interest) to exceed $750,000.
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"Required Equity Payment" means an amount equal to the product of (A)
multiplied by (B) where (A) is equal to the Equity Percentage Sold, and (B) is
equal to Twenty Five Million Dollars ($25,000,000).
"Requisite Payment Amount on Termination of NCPM Facility" means, at
any date that the NCPM/NCOG Credit Facility is terminated, an amount equal to
the difference between (A) and (B) where (A) is the sum of the Debt Portion of
the NCPM Investment and the Required Equity Payment and (B) is the aggregate
amount actually prepaid in respect of Loans pursuant to Section 1.6(b) (iii)
(Permitted NCPM Sale Transaction). By way of example (assuming no optional
prepayments were made prior to the date of determination of the Requisite
Payment Amount on Termination of NCPM Facility),
o if none of the equity of NCPM is sold on or prior to the date the
NCPM/NCOG Credit Agreement is terminated, then the Requisite Payment Amount on
Termination of NCPM Facility would be $25,000,000 derived as follows: the Debt
Portion of the NCPM Investment is $25,000,000; the Required Equity Payment is
zero; and the aggregate amount actually prepaid in respect of Loans pursuant to
Section1.6 (b) (iii) is zero [(A) $25,000,000 + $0 - (B) $0];
o if half of the equity of NCPM is sold on or prior to the date the
NCPM/NCOG Credit Agreement is terminated, and the net cash proceeds of that sale
were equal to $15,000,000, then the Requisite Payment Amount on Termination of
NCPM Facility would be $22,500,000 derived as follows: the Debt Portion of the
NCPM Investment is $25,000,000; the Required Equity Payment is $12,500,000; and
the aggregate amount actually prepaid in respect of Loans pursuant to Section1.6
(b) (iii) is $15,000,000 [(A) $25,000,000 +$12,500,000 - (B) $15,000,000].
"Responsible Officer" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ or such other person designated by the Borrower and reasonably
acceptable to Administrative Agent.
"Restricted Subsidiary" means each Subsidiary of Borrower other than an
Unrestricted Subsidiary.
"Security Agreement" shall have the meaning ascribed to such term in
Section 3.1(c) hereof.
"Security Documents" shall have the meaning set forth in Section 3.1(c)
hereof.
"Servicing Agreement" means any agreement between NCPM and its
Subsidiaries, on the one hand, and the Borrower and/or NCO Financial, on the
other hand, providing for the servicing of accounts receivable portfolios by the
Borrower or NCO Financial, as the case may be, as such agreement may be amended,
restated, supplemented and/or modified from time to time with the consent of the
Administrative Agent.
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"Solvent" means, with respect to any Person at any time, that at such
time (a) the sum of the debts and liabilities (including, without limitation,
contingent liabilities) of such Person is not greater than all of the assets of
such Person at a fair valuation, (b) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person has not incurred, will not incur, does not intend to
incur, and does not believe that it will incur, debts or liabilities (including,
without limitation, contingent liabilities) beyond such person's ability to pay
as such debts and liabilities mature, (d) such Person is not engaged in, and is
not about to engage in, a business or a transaction for which such person's
property constitutes or would constitute unreasonably small capital, and (e)
such Person is not otherwise insolvent as defined in, or otherwise in a
condition which could in any circumstances then or subsequently render any
transfer, conveyance, obligation or act then made, incurred or performed by it
avoidable or fraudulent pursuant to, any Law that may be applicable to such
Person pertaining to bankruptcy, insolvency or creditors' rights (including but
not limited to the Bankruptcy Code of 1978, as amended, and, to the extent
applicable to such Person, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act, or any other applicable Law pertaining to fraudulent
conveyances or fraudulent transfers or preferences).
"Stock Payment" by any Person shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subordinated Debt" means Indebtedness of the Borrower or any
Restricted Subsidiary that has been subordinated to the Obligations in writing
on terms satisfactory to the Administrative Agent.
"Subsidiary" of a Person means (a) a corporation (i) at least 50% of
the voting stock of which is at the time owned, directly or indirectly, by such
Person and (ii) of which such Person, directly or indirectly, has the right to
elect a majority of the members of the board of directors either as a result of
the ownership of a majority of the voting stock of such corporation or pursuant
to a shareholders or other voting agreement or (b) any partnership, joint
venture, limited liability company or similar entity at least 50% of the total
equity and voting interests of which (x) is at the time owned, directly or
indirectly, by such Person whether in the form of membership, general, special
or limited partnership, or otherwise and (y) such Person or any wholly owned
Subsidiary of such Person is a controlling general partner or otherwise controls
such entity.
"Subsidiary Guaranty" has the meaning ascribed to such term in Section
3.1(b).
"Super Majority Lenders" means, as of any date, Lenders holding in the
aggregate at least 66 2/3% of the aggregate outstanding Loans and available
Commitments.
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"Tax" means any federal, state, local or foreign tax assessment or
other governmental charge or levy (including any withholding tax) upon a Person
or upon its assets, revenues, income or profits.
"Term Loan" has the meaning set forth in Section 1.1 (Loans) hereof.
"Term Loan Commitment" means, with respect to any Lender, the
obligation of such Lender to make a portion of the Term Loan in an amount as set
forth opposite such Lender's name under the heading "Term Loan Commitment" on
Schedule 1.1 (as such Schedule may be amended from time to time) hereto or, in
the case of a Lender that becomes a Lender pursuant to an assignment, the amount
of the assignor's Term Loan Commitment assigned to such Lender, in either case
as the same may be reduced from time to time pursuant to Section 1.6 (Mandatory
Prepayments and RC Commitment Reductions) above or increased or reduced from
time to time pursuant to assignments in accordance with Section 11.9 (Successors
and Assigns) below; and "Term Loan Commitment" means, with respect to all
Lenders, the sum of their individual Term Loan Commitments.
"Term Loan Note" means each promissory note of the Borrower issued to a
Lender relating to such ▇▇▇▇▇▇'s portion of the Term Loan pursuant to its Term
Loan Commitment substantially in the form of Exhibit A-2 hereto, together with
any allonges thereto, from time to time, and any promissory note issued in
substitution therefor pursuant to the terms hereof, together with all
extensions, renewals, refinancings or refundings thereof in whole or part, in
each case as the same may be amended, modified, restated or supplemented from
time to time.
"Third Party Claims" has the meaning set forth in Section 11.12
(Indemnification) hereof.
"Type" means with respect to Loans, any of the following, each of which
shall be deemed to be a different "Type" of Loan: Prime Rate Loans, LIBO Rate
Loans having a one-month Interest Period commencing on a specified date, LIBO
Rate Loans having a two-month Interest Period commencing on a specified date,
LIBO Rate Loans having a three-month Interest Period commencing on a specified
date, and LIBO Rate Loans having a six-month Interest Period commencing on a
specified date.
"UCC" means the Uniform Commercial Code as adopted in the Commonwealth
of Pennsylvania.
"Unrestricted Subsidiary" has the meaning ascribed to such term in
Section 5.16 (Subsidiaries as Guarantors and Non-Guarantor Subsidiaries, Etc.).
"Unused Fee" has the meaning ascribed to such term in Section 1.8
(Fees) hereof.
"United States Person" has the meaning ascribed to such term in Section
1.12(a) hereof.
"U.S. Restricted Subsidiary" is a Restricted Subsidiary which is a
United States Person.
"Withdrawal Liability" has the meaning given to such term in ss.4201 of
ERISA.
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10.2 Construction. In this Agreement and each other Loan Document,
unless the context otherwise clearly requires,
(a) references to the plural include the singular, the singular
the plural and the part the whole;
(b) "or" has the inclusive meaning represented by the phrase
"and/or;"
(c) the terms "property" and "assets" each include all properties
and assets of any kind or nature, tangible or intangible, real, personal or
mixed, now existing or hereafter acquired;
(d) the words "hereof," "herein" and "hereunder" (and similar
terms) in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Loan Document;
(e) the words "includes" and "including" (and similar terms) in
this Agreement or any other Loan Document mean "includes, without limitation"
and "including, without limitation," respectively whether or not stated; and
(f) references to "determination" (and similar terms) by the
Administrative Agent or any Lender include good faith estimates by the
Administrative Agent or ▇▇▇▇▇▇ (in the case of quantitative determinations) and
good faith beliefs by the Administrative Agent or ▇▇▇▇▇▇ (in the case of
qualitative determinations).
No doctrine of construction of ambiguities in agreements or instruments against
the interests of the party controlling the drafting thereof shall apply to this
Agreement or any other Loan Document. The section and other headings contained
in this Agreement and in each other Loan Document, and any tables of contents
contained herein or therein, are for reference purposes only and shall not
affect the construction or interpretation of this Agreement or such other Loan
Document in any respect. Whenever this Agreement requires the delivery of
financial projections, it is understood that the projections shall be made in
good faith, consistent with the Loan Documents and based on ▇▇▇▇▇▇▇▇'s
reasonable judgment as to the anticipated financial performance and results of
operations. However, any such financial projections shall not constitute a
representation or warranty that such future financial performance or results of
operations will in fact be achieved.
10.3 Accounting Principles.
(a) As used herein, "GAAP" shall mean generally accepted
accounting principles (other than as set forth herein as to consolidation) in
the United States, applied on a basis consistent with the principles used in
preparing the financial statements of Borrower and its consolidated Subsidiaries
as of December 31, 2002 and for the fiscal year then ended.
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(b) Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Agreement
shall be prepared, in accordance with GAAP and all accounting or financial terms
shall have the meanings ascribed to such terms by GAAP; provided that if because
of a change in GAAP or the accountant's interpretation of GAAP after the date
hereof Borrower would be required to alter a previously utilized accounting
principle, method or policy in order to remain in compliance with GAAP, such
determination shall continue to be made in accordance with ▇▇▇▇▇▇▇▇'s previous
accounting principles, methods and policies unless otherwise agreed by the
Administrative Agent (on behalf of the Lenders).
ARTICLE XI
MISCELLANEOUS
11.1 Notices. Unless otherwise expressly provided under this Agreement
all notices, requests, demands, directions and other communications
(collectively "notices") given to or made upon any party under the provisions of
this Agreement (and unless otherwise specified, in each other Loan Document)
shall be by telephone (immediately confirmed in writing) or in writing
(including facsimile communication) and if in writing shall be delivered by
hand, nationally recognized overnight courier or U.S. mail or sent by facsimile
to the respective parties at the addresses and numbers set forth under their
respective names on the signature pages of this Agreement or in accordance with
any subsequent unrevoked written direction from any party to the others. All
notices shall, except as otherwise expressly provided in this Agreement, be
effective (a) in the case of facsimile, when received, (b) in the case of
hand-delivered notice, when hand delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective unless otherwise
expressly provided, telephonic notices must be confirmed in writing no later
than the next day by letter or facsimile, (d) if given by U.S. mail, when
received, if deposited in the mails with overnight first class postage prepaid,
return receipt requested, (e) if given by reputable overnight delivery service
(such as Federal Express or U.P.S.), the day after such communication is
deposited with such service, and (f) if given by any other means (including by
air courier), when delivered; provided, further, that notices to the
Administrative Agent shall not be effective until received. Any Lender giving
any notice to the Borrower shall simultaneously send a copy of such notice to
the Administrative Agent, and the Administrative Agent shall promptly notify the
other Lenders of the receipt by it of any such notice. Except as otherwise
provided in this Agreement, in the event of a discrepancy between any telephonic
or written notice, the written notice shall control.
11.2 Prior Understandings; Entire Agreement. This Agreement and the
other Loan Documents supersede all prior and contemporaneous understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein except as expressly provided
otherwise (e.g., certain fee agreements and fee arrangements with the
Administrative Agent). This Agreement and the other Loan Documents represent the
entire agreement between the parties to this Agreement with respect to the
transactions contemplated hereby or thereby and, except as expressly provided
herein or in the other Loan Documents, shall not be affected by reference to any
other documents.
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11.3 Severability. Every provision of this Agreement and each of the
other Loan Documents is intended to be severable, and if any term or provision
of this Agreement or any of the other Loan Documents shall be invalid, illegal
or unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, this Agreement shall, as
to such jurisdiction, be deemed amended to modify or delete, as necessary, the
offending provision or provisions and to alter the bounds thereof in order to
render it or them valid and enforceable to the maximum extent permitted by
applicable Law, without in any manner affecting the validity or enforceability
of such provision or provisions in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
11.4 Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
affect the meaning or construction of any of the provisions of this Agreement.
11.5 Governing Law. This Agreement and the rights and obligations of
the parties under this Agreement and under the other Loan Documents shall be
construed in accordance with and shall be governed by the laws of the
Commonwealth of Pennsylvania.
11.6 Non-Merger Of Remedies. The covenants and obligations of the
Borrower and the rights and remedies of the Administrative Agent and other
Lenders hereunder and under the other Loan Documents shall not merge with or be
extinguished by the entry of a judgment hereunder or thereunder, and such
covenants, obligations, rights and remedies shall survive any entry of a
judgment until payment in full of the Obligations and termination of the
Commitment. All obligations under the Loan Documents shall continue to apply
with respect to and during the collection of amounts due under the Loan
Documents or the proof and allowability of any claim arising under this
Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and in any workout, restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
of this Agreement or of any rights under this Agreement or under any other Loan
Document or in connection with any foreclosure, collection or bankruptcy
proceedings. Without limiting the generality of the foregoing, post-judgment
interest rate shall be the interest rate provided in paragraph (d) of Section
1.7 (Default Rate) above.
11.7 No Implied Waiver; Cumulative Remedies. No course of dealing and
no delay or failure of the Administrative Agent or any other Lender in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the
Administrative Agent and the other Lenders under this Agreement and any other
Loan Document are cumulative and not exclusive of any rights or remedies which
the Administrative Agent or any other Lender would otherwise have hereunder or
thereunder, at law, in equity or otherwise. Any waiver of a specific default
made in accordance with Section 11.8 (Amendments; Waivers) below shall be
effective only as to such specific default and shall not apply to any subsequent
default.
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11.8 Amendments; Waivers.
(a) Except as expressly set forth in this Agreement, any term,
covenant, agreement or condition of any Loan Document to which the Lenders (or
the Administrative Agent) are party may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Majority Lenders or, as to any term requiring the consent
or approval of the Super Majority Lenders, by the Super Majority Lenders (or by
the Administrative Agent at the direction of the Majority Lenders or Super
Majority Lenders, as appropriate); provided, however, if the rights and duties
of the Administrative Agent are affected thereby, such amendment or waiver must
be executed by the Administrative Agent; and provided, always that no such
amendment or waiver shall be effective unless in writing and signed by all
Lenders, if it would
(i) amend the definition of "Majority Lenders" or "Super
Majority Lenders" or reduce the number of Lenders required for the approval of
any matter hereunder;
(ii) release the Borrower or any Guarantor from its respective
Obligations or modify the joint and several nature of such Obligations (other
than in accordance with Sections 5.4 (Preservation of Corporate Status), 5.16
(Subsidiaries as Guarantors, Etc.), and 6.10 (Dispositions of Property), each of
which may be amended with the consent of the Majority Lenders);
(iii) increase the principal amount of the Loans (other than
as may be required hereby);
(iv) extend the maturity of any Loan or the time of any
scheduled payment or prepayment of any Loan (other the mandatory prepayment
provisions in Section 1.6 (Mandatory Prepayments and RC Commitment Reductions),
which may be amended with the consent of the Majority Lenders);
(v) decrease the rates of interest or amount of fees payable
hereunder or extend the time for payment of interest or fees hereunder;
(vi) release all or substantially all of the Collateral; or
(vii) amend this Section 11.8.
In addition, the Administrative Agent may, without the consent
of any Person, release Borrower, any Guarantor or any Collateral as a court of
competent jurisdiction may direct.
For purposes of determining whether "all Lenders", "Super
Majority Lenders", "the Majority Lenders" or "any Lender" has consented to any
amendment or waiver, no effect shall be given to the determination of any Lender
who has lost its right to vote pursuant to Section 1.2(c) or 1.5(e).
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Further, the Administrative Agent and the Lenders may amend or
modify the provisions of Article 8 hereof (except for Section 8.9 (Successor
Administrative Agent) and Article 11 hereof) without the need for any consent or
approval from the Borrower, it being acknowledged that the Borrower is not a
third party beneficiary of the provisions of said Article 9 (except for Section
8.9 (Successor Administrative Agent)) and (y) without the consent of any
Lenders, the Administrative Agent may enter into amendments and modifications to
this Agreement and the other Loan Documents as necessary or desirable to cure
any ambiguities herein or therein or to add or release (as contemplated herein)
Restricted Subsidiaries, Guarantors or collateral.
The Lenders hereby expressly authorize the Administrative
Agent to take such action as may be necessary or desirable to effectuate the
release of Collateral, Restricted Subsidiaries or Guarantors in connection with
sales or dispositions of the same to third-parties that are made in accordance
with the terms of this Agreement.
11.9 Successors And Assigns
(a) Assignments by the Borrower and Restricted Subsidiaries.
Without the prior written consent of all of the Lenders, neither the Borrower
nor any Restricted Subsidiary may assign any of its rights or delegate any of
its duties or obligations under this Agreement or any other Loan Document.
(b) Participations. Any Lender may sell participations to one or
more Eligible Institutions of all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment); provided, however, that, with respect to any Lender, (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties to this Agreement
for the performance of such obligations, (iii) all amounts payable by the
Borrower under this Agreement shall be determined as if such transferor Lender
had not sold such participation and no participant shall be entitled to receive
any greater amount pursuant to this Agreement than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such participant had no such transfer
occurred, (iv) such participant shall agree to be bound by the provisions of
this Agreement and the other Loan Documents, and (v) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such transferor Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole rights
and responsibility vis-a-vis the Borrower to enforce the obligations of the
Borrower relating to the Loans including the right to approve any amendment,
modification or waiver of any provision of this Agreement (except that such
Lender may give its participants the right to direct such Lender to approve or
disapprove any amendment, modification or waiver which would require such
Lender's consent under clauses (i) through (vii) of the preceding Section 11.8
(Amendments; Waivers).
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(c) Assignments by ▇▇▇▇▇▇▇. Each Lender may assign to one or more
Eligible Institutions all or a portion of its interest, rights and obligations
under this Agreement (including all or a portion of its Commitment) and the
other Loan Documents; provided, however, that with respect to any assignment,
(i) the aggregate principal amount of the interest, rights and obligations so
assigned to any assignee may not be less than $5,000,000; (ii) unless the
assignee is (prior to the effective time of the assignment) an existing Lender
or an Affiliate of an existing Lender, the Administrative Agent and, if no Event
of Default has occurred and is continuing, Borrower must give its prior written
consent to such assignment (which consent shall not be unreasonably withheld),
and (iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent and, unless an Event of Default has occurred and is
continuing, Borrower, for their acceptance, an Assignment and Acceptance
Agreement in substantially the form attached hereto as Exhibit M (an "Assignment
and Acceptance Agreement"), together with (A) any Note subject to such
assignment, and (B) a processing and recordation fee of $3,500.00. If the
assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to Borrower and the Administrative
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes.
(d) Procedures Respecting Assignment. Upon their receipt of an
Assignment and Acceptance executed by the assignor and the assignee, subject to
the conditions set forth in the preceding paragraph (c), the Administrative
Agent and (unless an Event of Default shall have occurred and be continuing)
Borrower shall accept such Assignment and Acceptance. Within thirty (30) days
after such Assignment and Acceptance is signed and accepted by all parties and
made effective, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent new Notes in exchange for the surrendered Notes, each
to the order of such assignee in an amount equal to its portion of the
Commitment and Loans, assigned to it pursuant to such Assignment and Acceptance
and new Notes to the order of the assigning Lender in an amount equal to the
Commitment and Loans retained by it. Such Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the date of such surrendered Notes (each assignee shall
confirm in the Assignment and Acceptance that, notwithstanding the date of the
new Notes made in favor of such assignee, such assignee shall have no right to,
or interest in, any fees or interest which shall have accrued on the Loans prior
to the effective date of the Assignment and Acceptance). Cancelled or replaced
Notes shall be returned to the Borrower upon the execution of such new Notes.
(e) Assignments to Federal Reserve Bank. Notwithstanding any of
the terms of this Section 11.9, without the consent of the Administrative Agent
and the Borrower, any Lender may assign all or any portion of its rights to
payments in connection with this Agreement to a Federal Reserve Bank as
collateral in accordance with Regulation A of the Board of Governors of the
Federal Reserve System. Such assignment shall not affect any other rights or any
obligations of the assigning Lender
11.10 Counterparts; Photocopied Or Telecopied Signature Pages. Any Loan
Document may be executed in one or more counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument. Delivery of a photocopy or telecopy of an executed counterpart
of a signature page to any Loan Document shall be as effective as delivery of a
manually executed counterpart of such Loan Document.
11.11 Maximum Lawful Interest Rate. Notwithstanding any provision
contained in this Agreement or the Notes or any other Loan Document, the total
liability of the Borrower for payment of interest pursuant to this Agreement and
the Notes shall not exceed the maximum amount of such interest permitted by Law
to be charged, collected, or received from the Borrower, and if any payment by
the Borrower includes interest in excess of such a maximum amount, each Lender
shall apply such excess to the reduction of the unpaid principal amount due
pursuant to this Agreement and the Notes, or if none is due, to the other
Obligations, if any, and then such excess shall be refunded to Borrower.
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11.12 Indemnification.
(a) Whether or not any fundings are made under this Agreement,
the Borrower shall unconditionally upon demand, pay or reimburse the
Administrative Agent and Lenders for, and indemnify and save the Administrative
Agent, the Lenders and their respective Affiliates, officers, directors,
employees, agents, attorneys, shareholders and consultants (collectively,
"Indemnitees") harmless from and against, any and all losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature whatsoever (including the
reasonable fees and disbursements of counsel for such Indemnitee in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitee shall be designated a party thereto)
that may at any time be imposed on, asserted against or incurred by such
Indemnitee as a result of, or arising out of, or in any way related to or by
reason of, this Agreement or any other Loan Document, any acquisition or
transaction from time to time contemplated hereby or by any other Loan Document,
or any transaction actually or proposed to be financed in whole or in part or
directly or indirectly with the proceeds of any Loan, any transaction
contemplated by the Loan Documents but excluding any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements that the Borrower proves were the result of the gross
negligence or willful misconduct of such Indemnitee(s), as finally determined by
a court of competent jurisdiction. If and to the extent that the foregoing
obligations of the Borrower under this paragraph (a), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
(b) Without limiting the generality of the foregoing, the
Borrower hereby indemnifies and agrees to defend and hold harmless each
Indemnitee, from and against any and all claims, actions, causes of action,
liabilities, penalties, fines, damages, judgments, losses, suits, expenses,
legal or administrative proceedings, interest, costs and expenses (including
court costs and reasonable attorneys', consultants' and experts' fees) arising
out of or in any way relating to: (i) the use, handling, management, production,
treatment, processing, storage, transfer, transportation, disposal, release or
threat of release of any Environmental Concern Material by or on behalf of, the
Borrower, any Restricted Subsidiary or any of their Environmental Affiliates;
(ii) the presence of Environmental Concern Materials on, about, beneath or
arising from any premises owned or occupied by Borrower or any of its
Environmental Affiliates (herein collectively, the "Premises"); (iii) the
failure of Borrower or Environmental Affiliate of Borrower or any occupant of
any Premises to comply with the Environmental Laws; (iv) the Borrower's or any
Restricted Subsidiary's breach of any of the representations, warranties and
covenants contained herein or in any Loan Documents; (v) Regulatory Actions (as
hereinafter defined) and Third Party Claims (as hereinafter defined); or (vi)
the imposition or recording of a Lien against any Premises in connection with
any release at, on or from any Premises or any activities undertaken on or
occurring at any Premises, or arising from such Premises or pursuant to any
Environmental Law. The Borrower's indemnity and defense obligations under this
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section shall include, whether foreseeable or unforeseeable, any and all costs
related to any remedial action. "Regulatory Action" means any notice of
violation, citation, complaint, request for information, order, directive,
compliance schedule, notice of claim, consent decree, action, litigation or
proceeding brought or instituted by any governmental authority under or in
connection with any Environmental Law involving the Borrower, any Restricted
Subsidiary or any occupant of any of the Premises or involving any of the
Premises or any activities undertaken on or occurring at any Premises. "Third
Party Claims" means claims by a party (other than a party to this Agreement and
other than Regulatory Actions) based on negligence, trespass, strict liability,
nuisance, toxic tort or detriment to human health or welfare due to
Environmental Concern Materials on, about, beneath or arising from any Premises
or in any way related to any alleged violation of any Environmental Laws or any
activities undertaken on or occurring at any Premises.
(c) The indemnities contained herein shall survive repayment of
the Obligations, termination of the Commitment and satisfaction, release, and
discharge of the Loan Documents, whether through full payment of the Loans,
foreclosure, deed in lieu of foreclosure or otherwise.
(d) The foregoing amounts are in addition to any other amounts
which may be due and payable to the Administrative Agent and/or the Lenders
under this Agreement. A certification by the Administrative Agent or a Lender
hereunder of the amount of liabilities, losses, costs, expenses, claims and/or
charges shall be conclusive, absent manifest error.
11.13 Expenses.
Whether or not there shall be any funding hereunder, the Borrower
agrees to pay promptly or cause to be paid promptly and to hold harmless
(i) the Administrative Agent (and, with respect to clause (4)
of this paragraph (i)) after an Event of Default, and for the period in which
the same shall continue, each Lender) against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel, including local counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs) incurred by it from time to time arising from
or relating to (1) the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents, (2) the syndication of the credit
facilities this Agreement establishes, (3)the administration and performance of
this Agreement and the other Loan Documents, and (4) any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any other Loan Document;
(ii) the Administrative Agent (and, with respect to clause
(2) of this paragraph (ii) after an Event of Default, and for the period in
which the same shall continue, each Lender) against liability for the payment of
all reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel, including local counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs) incurred by it from time to time arising from
or relating to the enforcement or preservation of rights under, or
administration of, or syndication of, this Agreement or any other Loan Document
(including but not limited to any such costs or expenses arising from or
relating to (1) collection or enforcement of an outstanding Loan or other
Obligation, and (2) any litigation, proceeding, dispute, work-out, restructuring
or rescheduling related in any way to this Agreement or the other Loan
Documents); and
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(iii) each Lender against liability for all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by any Lender to
be payable in connection with this Agreement or any other Loan Documents.
11.14 Maximum Amount Of Joint And Several Liability. To the extent that
applicable Law otherwise would render the full amount of the joint and several
obligations of any Guarantor under the Loan Documents invalid or unenforceable,
such Persons' obligations hereunder and under the other Loan Documents shall be
limited to the maximum amount which does not result in such invalidity or
unenforceability, provided, however, that the Borrower's and each Guarantor's
obligations under the Loan Documents shall be presumptively valid and
enforceable to their fullest extent in accordance with the terms hereof or
thereof, as if this Section 11.14 were not a part of this Agreement.
11.15 Authorization Of Borrower By Other Restricted Subsidiaries.
(a) Each of the Restricted Subsidiaries has irrevocably
authorized Borrower to give notices, make requests, make payments, receive
payments and notices, give receipts and execute agreements, make agreements or
take any other action whatever on behalf of all such Persons under and with
respect to any Loan Document and each such Person has agreed to be bound
thereby. This authorization has been coupled with an interest and shall be
irrevocable, and the Administrative Agent and each Lender may rely on any
notice, request, information supplied by Borrower and every document executed by
▇▇▇▇▇▇▇▇, agreement made by Borrower or other action taken by Borrower in
respect of the Restricted Subsidiaries or any thereof as if the same were
supplied, made or taken by any or all Restricted Subsidiaries. Without limiting
the generality of the foregoing, the failure of one or more Restricted
Subsidiary to join in the execution of any writing in connection herewith shall
not, unless the context clearly requires, relieve any such Restricted Subsidiary
from obligations in respect of such writing.
(b) The Borrower acknowledges that the credit provided ▇▇▇▇▇▇▇▇▇
is on terms more favorable than it, acting alone, would receive and that it and
each Restricted Subsidiary benefits indirectly from all Loans and Letters of
Credit hereunder. Borrower and, subject only to the terms of the preceding
paragraph (a), each Guarantor, in accordance with the terms of its respective
Subsidiary Guaranty, shall be liable for all Obligations, regardless of, inter
alia, whether such Guarantor benefited from the proceeds of a particular Loan.
11.16 Certain Waivers By ▇▇▇▇▇▇▇▇. Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and any requirement that any Lender exhaust any right or take any
action against the Borrower, any Guarantor or any other Person or any collateral
or other direct or indirect security for any of the Obligations. Without
limiting the generality of the foregoing, ▇▇▇▇▇▇▇▇ acknowledges and agrees that
the Administrative Agent or other Lender may commence an action against the
Borrower or any Guarantor whether or not any action is brought against any other
such Person or against any collateral and it shall be no defense to any action
brought against the Borrower or any Guarantor that the Lenders have failed to
bring an action against any other such Person or any Collateral.
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11.17 Set-Off. The Borrower hereby agrees that, to the fullest extent
permitted by Law, if any Loan shall be due and payable (by acceleration or
otherwise), each Lender shall have the right, without notice to the Borrower or
any Guarantor, to set-off against and to appropriate and apply to such Loan any
indebtedness, liability or obligation of any nature owing to the Borrower or any
Guarantor by such Lender, including but not limited to all deposits now or
hereafter maintained by the Borrower or any Guarantor with such Lender but not
including any escrow or trust account maintained by the Borrower or any
Guarantor. Such right shall exist whether or not such Lender or any other Person
shall have given notice or made any demand to the Borrower, any Guarantor or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by Law, any participant and any Affiliate of any Lender or any participant shall
have the same rights of set-off as a Lender as provided in this Section 11.17.
The rights provided by this Section 11.17 are in addition to all other rights of
set-off and banker's lien and all other rights and remedies which any Lender (or
any such participant, or Affiliate) may otherwise have under this Agreement, any
other Loan Document, at law or in equity, or otherwise.
11.18 Sharing Of Collections. The Lenders hereby agree among themselves
that if any Lender shall receive (by voluntary payment, realization upon
security, charging of accounts, set-off or from any other source) any amount on
account of the Loans and obligations in respect of Letters of Credit in greater
proportion than any such amount received by any other Lender (based on the
relative amount of each such Lender's interest in the Loans and obligations in
respect of Letters of Credit), then the Lender receiving such proportionately
greater payment shall notify each other Lender and the Administrative Agent of
such receipt, and equitable adjustment will be made in the manner stated in this
Section 11.18 so that, in effect, all such excess amounts will be shared ratably
among all of the Lenders. The Lender receiving such excess amount shall purchase
(which it shall be deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other Lenders a participation in the applicable
Loans and obligations in respect of Letters of Credit owed to such other Lenders
in such amount as shall result in a ratable sharing by all Lenders of such
excess amount (and to such extent the receiving Lender shall be a participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
The Borrower hereby consents to and confirms the foregoing arrangements. Each
participant shall be bound by this Section 11.18 as fully as if it were a Lender
hereunder.
11.19 Other Loan Documents. Each Lender acknowledges that on signing
this Agreement it is bound by the terms of the Loan Documents as a Lender
hereunder.
11.20 Certain Borrower Acknowledgements. Each Borrower hereby
acknowledges that neither the Administrative Agent nor any other Lender has any
fiduciary relationship with, or any fiduciary duty to any Borrower arising out
of or in connection with this Agreement or any of the other Loan Documents and
the relationship between the Administrative Agent and the other Lenders, on the
one hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor.
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11.21 Consent To Jurisdiction, Service And Venue; Waiver Of Jury Trial;
Damages.
(a) Consent to Jurisdiction, Service and Venue. For the purpose
of enforcing payment and performance of the Loan Documents, including, any
payment under the Notes and performance of other obligations under the Loan
Documents, or in any other matter relating to, or arising out of, the Loan
Documents, Borrower hereby consents to the jurisdiction and venue of the courts
of the Commonwealth of Pennsylvania or of any federal court located in such
state, waives personal service of any and all process upon it and consents that
all such service of process be made by certified or registered mail directed to
Borrower at the address provided for in Section 11.1 (Notices) and service so
made shall be deemed to be completed upon actual receipt or execution of a
receipt by any Person at such address. Borrower, for itself and each of the
Restricted Subsidiaries, hereby waives the right to contest the jurisdiction and
venue of the courts located in the Commonwealth of Pennsylvania on the ground of
inconvenience or otherwise and, further, waives any right to bring any action or
proceeding against (a) the Administrative Agent in any court outside the
Commonwealth of Pennsylvania, or (b) any other Lender other than in a state
within the United States designated by such Lender. The provisions of this
Section 11.21 shall not limit or otherwise affect the right of the
Administrative Agent or any other Lender to institute and conduct an action in
any other appropriate manner, jurisdiction or court.
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(b) WAIVER OF JURY TRIAL; DAMAGES. NEITHER ANY LENDER NOR
▇▇▇▇▇▇▇▇, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE
FOREGOING SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF
THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT, OR INVOLVING ANY COLLATERAL OR ANY
GUARANTY RELATING TO THE INDEBTEDNESS HEREUNDER OR THE RELATIONSHIP BETWEEN OR
AMONG SUCH PERSONS OR ANY OF THEM. NO SUCH PERSON WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES
ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION 11.21 ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (I) CERTIFIES THAT NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER NOR
ANY REPRESENTATIVE, OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR SUCH
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH (B) OF SECTION 11.21. THE
PROVISIONS OF THIS SECTION 11.21 HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND
THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 11.21
WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
11.22 Most Favored Borrower. Notwithstanding anything in this Agreement
to the contrary, Borrower is required to pay taxes, charges and other amounts to
Lender(s) and/or Administrative Agent under Sections 1.12 (Taxes on Payments),
2.2 (Regulatory Changes), 2.3 (Capital and Reserve Requirements) and 2.4
(Breakage) only if, and to the extent, such Lender(s) and/or Administrative
Agent charge similarly situated customers similar amounts under similar
circumstances.
[Remainder of Page Intentionally Left Blank]
101
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
NCO GROUP, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as President and Chief Executive Officer
Address for Notices to Borrower:
--------------------------------
c/o NCO Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: BLANK ROME LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
CITIZENS BANK OF PENNSYLVANIA,
for itself, as Administrative Agent, as a
Co-Arranger, and as Collateral Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
Address for Notices:
--------------------
Citizens Bank of Pennsylvania
Citizens Gateway Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender Syndication Agent and as a
Co-Arranger
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Address for Notices:
--------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and as a Co-Documentation Agent
By: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
Address for Notices:
--------------------
[Signature Page to Sixth Amended and Restated Credit Agreement]
NATIONAL CITY BANK,
as a Lender and as a Co-Documentation Agent
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
--------------------
National City Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, SVP
[Signature Page to Sixth Amended and Restated Credit Agreement]
FLEET NATIONAL BANK,
as a Lender and as a Co-Documentation Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Address for Notices:
--------------------
Fleet National Bank
Corporate Banking
Mail Stop: PA RP 08301G
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
KEYBANK NATIONAL ASSOCIATION,
as a Lender and as a Co-Documentation Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: VP, Portfolio Manager
Address for Notices:
--------------------
[Signature Page to Sixth Amended and Restated Credit Agreement]
SOVEREIGN BANK,
as a Lender and as a Co-Agent
By: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
Sovereign Bank
20-6431-SF2
3 Radnor Corporate Center
▇▇▇▇. ▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
PROVIDENT BANK, as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
Address for Notices:
--------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Lender
By: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
--------------------
Manufacturers and Traders Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 18th Floor
mail code ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, VP
[Signature Page to Sixth Amended and Restated Credit Agreement]
US BANK NATIONAL ASSOCIATION,
as Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
--------------------
One U.S. Bank Plaza, SL-MO-T12M
St. Louis, MO 63101
[Signature Page to Sixth Amended and Restated Credit Agreement]
PROVIDENT BANK, as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
--------------------
Freemarkets Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
[Signature Page to Sixth Amended and Restated Credit Agreement]
TABLE OF CONTENTS
Page
Article I CREDIT FACILITIES..............................................................................2
1.1 Loans..........................................................................................2
1.2 Manner Of Borrowing............................................................................2
1.3 Repayments.....................................................................................4
1.4 Voluntary Prepayments..........................................................................4
1.5 Payments By The Borrower In General............................................................6
1.6 Mandatory Prepayments and RC Commitment Reductions.............................................7
1.7 Interest......................................................................................10
1.8 Fees..........................................................................................12
1.9 Computation Of Interest And Fees..............................................................13
1.10 Promissory Notes; Records Of Account..........................................................13
1.11 Pro Rata Treatment............................................................................13
1.12 Taxes On Payments.............................................................................13
1.13 Registered Notes And Loans....................................................................15
1.14 Issuance Of Letters Of Credit................................................................16
Article II YIELD PROTECTION AND BREAKAGE INDEMNITY.......................................................21
2.1 Mandatory Suspension And Conversion Of LIBO Rate Loans........................................21
2.2 Regulatory Changes............................................................................22
2.3 Capital And Reserve Requirements..............................................................23
2.4 Breakage......................................................................................24
2.5 Determinations................................................................................24
2.6 Replacement Of Lenders........................................................................24
2.7 Change Of Lending Office......................................................................25
Article III CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND FUNDINGS.........................................26
3.1 Conditions To Initial Loans...................................................................26
3.2 Conditions To All Loans.......................................................................29
Article IV REPRESENTATIONS AND WARRANTIES................................................................30
4.1 Representations And Warranties................................................................30
4.2 Representations And Warranties Absolute.......................................................37
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TABLE OF CONTENTS
(continued)
Page
Article V AFFIRMATIVE COVENANTS.........................................................................37
5.1 Basic Reporting Requirements..................................................................37
5.2 Insurance.....................................................................................40
5.3 Payment Of Taxes And Other Potential Charges And Priority Claims..............................41
5.4 Preservation Of Corporate Status..............................................................41
5.5 Governmental Approvals And Filings............................................................42
5.6 Maintenance Of Properties.....................................................................42
5.7 Avoidance Of Other Conflicts..................................................................42
5.8 Financial Accounting Practices................................................................42
5.9 Use Of Proceeds...............................................................................42
5.10 Continuation Of Or Change In Business.........................................................43
5.11 Consolidated Tax Return.......................................................................43
5.12 Fiscal Year...................................................................................43
5.13 Bank Accounts.................................................................................43
5.14 Submission Of Collateral Documents............................................................43
5.15 Collection Of Accounts........................................................................43
5.16 Subsidiaries As Guarantors and Non-Guarantor Subsidiaries; Restricted
and Unrestricted Subsidiaries.................................................................43
5.17 Update Of Schedules...........................................................................45
5.18 Compliance With Laws..........................................................................45
5.19 Keyman Life Insurance.........................................................................45
Article VI NEGATIVE COVENANTS............................................................................46
6.1 Financial Covenants...........................................................................47
6.2 Liens.........................................................................................48
6.3 Indebtedness..................................................................................49
6.4 Guaranties, Indemnities, Etc..................................................................50
6.5 Loans, Advances And Investments...............................................................51
6.6 Dividends And Related Distributions...........................................................53
6.7 Sale-Leasebacks...............................................................................53
6.8 Leases........................................................................................53
6.9 Mergers, Acquisitions, Etc....................................................................53
6.10 Dispositions Of Properties....................................................................54
6.11 Stock Issuances...............................................................................55
6.12 Dealings With Affiliates......................................................................55
6.13 Acquired Delinquent Pools Of Accounts.........................................................56
6.16 Limitation On Payments Of Purchase Money Indebtedness.........................................57
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TABLE OF CONTENTS
(continued)
Page
6.17 Limitation On Other Restrictions On Liens.....................................................58
6.18 Limitation On Other Restrictions On Amendment Of The Loan Documents, Etc......................58
6.19 Limitation on Transactions with Unrestricted Subsidiaries, Etc................................58
Article VII DEFAULTS.....................................................................................59
7.1 Events Of Default.............................................................................59
7.2 Consequences Of An Event Of Default...........................................................62
7.3 Application Of Proceeds.......................................................................63
Article VIII THE ADMINISTRATIVE AGENT..........................................................................64
8.1 Appointment...................................................................................64
8.2 General Nature Of Administrative Agent's Duties...............................................64
8.3 Exercise Of Powers............................................................................65
8.4 General Exculpatory Provisions................................................................65
8.5 Administration By The Administrative Agent....................................................66
8.6 Lenders Not Relying On Administrative Agent Or Other Lenders..................................67
8.7 Indemnification...............................................................................67
8.8 Administrative Agent's Records................................................................68
8.9 Successor Administrative Agent................................................................68
8.10 Additional Agents............................................................................69
8.11 Calculations..................................................................................69
8.12 Administrative Agent In Its Individual Capacity...............................................69
Article IX SPECIAL INTER-company PROVISIONS..............................................................70
9.1 Acknowledgements of Synergies and Inter-dependence............................................70
9.2 Certain Inter-Company Agreements..............................................................70
9.3 Borrower's Records............................................................................71
Article X DEFINITIONS; CONSTRUCTION.....................................................................71
10.1 Certain Definitions...........................................................................71
10.2 Construction..................................................................................93
10.3 Accounting Principles.........................................................................94
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TABLE OF CONTENTS
(continued)
Page
Article XI MISCELLANEOUS.................................................................................94
11.1 Notices.......................................................................................94
11.2 Prior Understandings; Entire Agreement........................................................95
11.3 Severability..................................................................................95
11.4 Descriptive Headings..........................................................................95
11.5 Governing Law.................................................................................95
11.6 Non-Merger Of Remedies........................................................................95
11.7 No Implied Waiver; Cumulative Remedies........................................................96
11.8 Amendments; Waivers...........................................................................96
11.9 Successors And Assigns........................................................................97
11.10 Counterparts; Photocopied Or Telecopied Signature Pages.......................................99
11.11 Maximum Lawful Interest Rate..................................................................99
11.12 Indemnification...............................................................................99
11.13 Expenses.....................................................................................101
11.14 Maximum Amount Of Joint And Several Liability................................................102
11.15 Authorization Of Borrower By Other Restricted Subsidiaries...................................102
11.16 Certain Waivers By Borrower..................................................................102
11.17 Set-Off......................................................................................102
11.18 Sharing Of Collections.......................................................................103
11.19 Other Loan Documents.........................................................................103
11.20 Certain Borrower Acknowledgements............................................................103
11.21 Consent To Jurisdiction, Service And Venue; Waiver Of Jury Trial; Damages....................103
11.22 Most Favored Borrower........................................................................105
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