EXHIBIT 4.1
EXECUTION VERSION
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Published CUSIP Number: ________________
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 19, 2004
among
▇▇▇▇▇▇▇ ENTERPRISES, INC.,
EMPRESAS ▇▇▇▇▇▇▇-CEMENTERIOS,
and
EMPRESAS ▇▇▇▇▇▇▇-FUNERARIAS,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, Swing Line Lender
and
L/C Issuer,
SUNTRUST BANK,
as Syndication Agent,
and
CALYON NEW YORK BRANCH,
as Documentation Agent
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
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ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Assignments and Allocations; Amendment and Restatement................................................ 1
1.02 Defined Terms......................................................................................... 4
1.03 Other Interpretive Provisions......................................................................... 35
1.04 Accounting Adjustments................................................................................ 36
1.05 Accounting Terms...................................................................................... 37
1.06 Rounding.............................................................................................. 37
1.07 Times of Day.......................................................................................... 37
1.08 Letter of Credit Amounts.............................................................................. 38
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loans............................................................................................ 38
2.02 Revolving Loans....................................................................................... 39
2.03 Borrowings, Conversions and Continuations of Revolving Loans; Conversions and Continuations of
Segments of the Term Loan............................................................................. 39
2.04 Letters of Credit..................................................................................... 41
2.05 Swing Line Loans...................................................................................... 49
2.06 Prepayments........................................................................................... 52
2.07 Mandatory Prepayments................................................................................. 53
2.08 Termination or Reduction of Commitments............................................................... 55
2.09 Repayment of Loans.................................................................................... 55
2.10 Interest.............................................................................................. 56
2.11 Fees.................................................................................................. 57
2.12 Computation of Interest and Fees...................................................................... 57
2.13 Evidence of Debt...................................................................................... 58
2.14 Payments Generally; Administrative Agent's Clawback................................................... 58
2.15 Sharing of Payments by Lenders........................................................................ 60
2.16 Increase in Commitments............................................................................... 61
2.17 Joint and Several Borrowers........................................................................... 63
2.18 SEI as Borrowing Agent................................................................................ 65
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2.19 Removal of PR Borrowers............................................................................... 66
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes................................................................................................. 66
3.02 Illegality............................................................................................ 68
3.03 Inability to Determine Rates.......................................................................... 69
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.................................................... 69
3.05 Compensation for Losses............................................................................... 71
3.06 Mitigation Obligations; Replacement of Lenders........................................................ 71
3.07 Survival.............................................................................................. 72
ARTICLE IIIA. SECURITY
3A.01 Security.............................................................................................. 72
3A.02 Further Assurances.................................................................................... 73
3A.03 Information Regarding Collateral...................................................................... 73
3A.04 Release of Guarantors, Collateral and Pledged Interests............................................... 73
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension................................................................ 74
4.02 Conditions to all Credit Extensions................................................................... 77
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Organization and Authority............................................................................ 77
5.02 Loan Documents........................................................................................ 78
5.03 Solvency.............................................................................................. 78
5.04 Subsidiaries and Stockholders......................................................................... 78
5.05 Ownership Interests................................................................................... 79
5.06 Financial Condition................................................................................... 79
5.07 Title to Properties................................................................................... 80
5.08 Taxes................................................................................................. 80
5.09 Other Agreements...................................................................................... 80
5.10 Litigation............................................................................................ 80
5.11 Margin Stock.......................................................................................... 80
5.12 Regulated Company..................................................................................... 81
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5.13 Patents, Etc.......................................................................................... 81
5.14 No Untrue Statement................................................................................... 81
5.15 No Consents, Etc...................................................................................... 81
5.16 Employee Benefit Plans................................................................................ 82
5.17 No Default............................................................................................ 83
5.18 Environmental Laws.................................................................................... 83
5.19 Employment Matters.................................................................................... 83
5.20 Deathcare Industry.................................................................................... 84
5.21 Designated Senior Debt and Permitted Debt............................................................. 84
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Reports, Etc................................................................................ 84
6.02 Maintain Properties................................................................................... 86
6.03 Existence, Qualification, Etc......................................................................... 86
6.04 Regulations and Taxes................................................................................. 86
6.05 Insurance............................................................................................. 86
6.06 True Books............................................................................................ 87
6.07 Right of Inspection................................................................................... 87
6.08 Observe All Laws...................................................................................... 87
6.09 Governmental Licenses................................................................................. 87
6.10 Covenants Extending to Other Persons.................................................................. 87
6.11 Officer's Knowledge of Default........................................................................ 87
6.12 Suits or Other Proceedings............................................................................ 87
6.13 Notice of Environmental Complaint or Condition........................................................ 88
6.14 Environmental Compliance.............................................................................. 88
6.15 Indemnification....................................................................................... 88
6.16 Further Assurances.................................................................................... 88
6.17 Employee Benefit Plans................................................................................ 88
6.18 Continued Operations.................................................................................. 90
6.19 New Subsidiaries...................................................................................... 90
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Financial Covenants................................................................................... 92
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7.02 Acquisitions.......................................................................................... 92
7.03 Capital Expenditures.................................................................................. 93
7.04 Liens................................................................................................. 93
7.05 Indebtedness.......................................................................................... 94
7.06 Transfer of Assets.................................................................................... 97
7.07 Investments........................................................................................... 98
7.08 Merger or Consolidation............................................................................... 100
7.09 Restricted Payments................................................................................... 100
7.10 Transactions with Affiliates.......................................................................... 100
7.11 Compliance with ERISA, the Code and Foreign Benefit Laws.............................................. 100
7.12 Fiscal Year........................................................................................... 101
7.13 Dissolution, Etc...................................................................................... 101
7.14 Limitations on Sales and Leasebacks................................................................... 101
7.15 Change in Control..................................................................................... 102
7.16 Negative Pledge Clauses............................................................................... 102
7.17 Prepayments, Etc., of Indebtedness.................................................................... 102
7.18 Limitations on Upstreaming............................................................................ 103
7.19 Designated Senior Debt and Permitted Debt............................................................. 103
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default..................................................................................... 103
8.02 Remedies Upon Event of Default........................................................................ 106
8.03 Application of Funds.................................................................................. 106
ARTICLE IX.
ADMINISTRATIVE AGENT AND COLLATERAL AGENT
9.01 Appointment and Authority............................................................................. 107
9.02 Rights as a Lender.................................................................................... 107
9.03 Exculpatory Provisions................................................................................ 108
9.04 Reliance by Administrative Agent and Collateral Agent................................................. 109
9.05 Delegation of Duties.................................................................................. 109
9.06 Resignation of Administrative Agent................................................................... 109
9.07 Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders.............................. 110
9.08 No Other Duties, Etc.................................................................................. 111
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9.09 Administrative Agent May File Proofs of Claim......................................................... 111
9.10 Collateral and Guaranty Matters....................................................................... 111
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc....................................................................................... 112
10.02 Notices; Effectiveness; Electronic Communication...................................................... 114
10.03 No Waiver; Cumulative Remedies........................................................................ 115
10.04 Expenses; Indemnity; Damage Waiver.................................................................... 115
10.05 Payments Set Aside.................................................................................... 117
10.06 Successors and Assigns................................................................................ 117
10.07 Treatment of Certain Information; Confidentiality..................................................... 121
10.08 Right of Setoff....................................................................................... 122
10.09 Interest Rate Limitation.............................................................................. 122
10.10 Counterparts; Integration; Effectiveness.............................................................. 123
10.11 Survival of Representations and Warranties............................................................ 123
10.12 Severability.......................................................................................... 123
10.13 Replacement of Lenders................................................................................ 123
10.14 Governing Law; Jurisdiction; Etc...................................................................... 124
10.15 Waiver of Jury Trial.................................................................................. 125
10.16 USA PATRIOT Act Notice................................................................................ 125
SIGNATURES..................................................................................................... S-1
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SCHEDULES
2.01(a) Revolving Credit Commitments and Applicable Revolving Percentages
2.01(b) Applicable Term Percentages
3A.01 Non-Pledged Subsidiaries
3A.03 Information Regarding Collateral
4.01(a)(iv) Certain Domestic Subsidiaries
4.01(a)(v) Local Counsel Jurisdictions
5.04 Subsidiaries and Investments in Other Persons
5.05 Other Investments
5.19 Employment Matters
7.04 Existing Liens
7.05(a)(i) Existing Indebtedness
7.05(a)(ii) Existing Intercompany Indebtedness
7.07(c) Existing Investments
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
FORM OF
A-1 Revolving Loan Notice
A-2 Term Loan Interest Rate Selection Notice
B Swing Line Loan Notice
C-1 Revolving Note
C-2 Term Loan Note
C-3 Swing Line Note
D Compliance Certificate
E Assignment and Assumption
F Notice of Appointment (or Revocation) of Responsible Officer
G Termination of PR Borrowers
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("AGREEMENT") is entered into
as of November 19, 2004, among ▇▇▇▇▇▇▇ ENTERPRISES, INC., a Louisiana
corporation having its principal place of business in Jefferson, Louisiana
("SEI"), EMPRESAS ▇▇▇▇▇▇▇-CEMENTERIOS, a Puerto Rican civil partnership having
its principal place of business in San ▇▇▇▇, Puerto Rico ("CEMENTERIOS"),
EMPRESAS ▇▇▇▇▇▇▇-FUNERARIAS, a Puerto Rican civil partnership having its
principal place of business in San ▇▇▇▇, Puerto Rico ("FUNERARIAS" and together
with Cementerios, the "PR BORROWERS", and the PR Borrowers and SEI collectively
known as the "BORROWERS"), each lender from time to time party hereto
(collectively, the "LENDERS" and individually, a "LENDER"), and BANK OF AMERICA,
N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and L/C
Issuer.
A. The Borrowers, the lenders party thereto and Bank of America, as
Administrative Agent (in such capacity, the "ADMINISTRATIVE AGENT"), are parties
to that certain Credit Agreement dated as of June 29, 2001 (as amended to (but
excluding) the date hereof, the "EXISTING AGREEMENT"), pursuant to which certain
of such lenders originally agreed to make available to the Borrowers (with
certain sublimits for the PR Borrowers) (a) a revolving credit facility of up to
$175,000,000, including a letter of credit subfacility of up to $25,000,000 and
a swingline subfacility of up to $10,000,000, and (b) certain term credit
facilities, of which $50,000,000 remains outstanding as of the date hereof.
B. The Borrowers have requested that the Existing Agreement be amended and
restated in order to, among other things, (a) extend the maturity date of both
the revolving and term loan facilities, (b) increase the term loan facility from
the existing $50,000,000 principal amount to an aggregate maximum principal
amount of $100,000,000 (subject to an increase option provided in this
Agreement), (c) reduce the maximum aggregate amount of the revolving credit
facility from $175,000,000 to $125,000,000 (subject to an increase option
provided in this Agreement), and (d) make certain other amendments to the
Existing Agreement (collectively, the "AMENDMENT AND RESTATEMENT").
C. The parties hereto are willing to amend and restate the Existing
Agreement and to make and continue to make certain term loan, revolving credit,
letter of credit and swing line facilities available to the Borrowers upon the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 ASSIGNMENTS AND ALLOCATIONS; AMENDMENT AND RESTATEMENT.
(a) As of the Closing Date (immediately prior to the effectiveness of this
Agreement), (i) the Total Revolving Credit Commitments (as defined in the
Existing Agreement) under the Revolving Credit Facility (as defined in the
Existing Agreement) is $175,000,000, (ii) the principal amount of the Revolving
Loans (as defined in the Existing Agreement) outstanding
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under the Existing Credit Agreement is $59,000,000, (iii) there are no Swing
Line Loans (as defined in the Existing Agreement) outstanding under the Existing
Agreement, (iv) there are $15,668,025.00 of Letter of Credit Outstandings (as
defined in the Existing Agreement), and (v) the Term Loan Outstandings (as
defined in the Existing Agreement) are $50,000,000. It is acknowledged that the
Asset Sale Term Loan (as defined in the Existing Agreement) was paid in full and
terminated prior to the date hereof.
(b) Simultaneously with the Closing Date, the parties hereby agree that
(i) the Revolving Credit Commitment of each of the Revolving Lenders shall be as
set forth in Schedule 2.01(a), and the outstanding amount of the Revolving Loans
under the Existing Agreement (without giving effect to any further Borrowings of
Revolving Loans under this Agreement on the Closing Date, but after giving
effect to any repayment or reduction thereof with the proceeds of the Term Loan
made under this Agreement or with any other applicable sources) shall be
reallocated in accordance with such Revolving Credit Commitments, and the
requisite assignments shall be deemed to be made in such amounts among the
Revolving Lenders and from each Revolving Lender to each other Revolving Lender
(and, if necessary, to Revolving Lenders from existing lenders under the
Existing Agreement who elect not to become Revolving Lenders under this
Agreement or who reduce their commitments in connection with this Agreement),
with the same force and effect as if such assignments were evidenced by
applicable Assignments and Acceptances (as defined in the Existing Agreement)
under the Existing Agreement, but without the payment of any related assignment
fee, (ii) the Outstanding Amount of the Term Loan, and each Term Lender's
Applicable Term Percentage thereof, shall be as set forth in Schedule 2.01(b),
and the portion of the Outstanding Amount of the Term Loan held by each Term
Lender shall be reallocated in accordance with the Applicable Term Percentage,
and the requisite assignments shall be deemed to be made in such amounts among
the Term Lenders and from each Term Lender to each other Term Lender (and, if
necessary, to Term Lenders, including Bank of America, from existing lenders
under the Existing Agreement who elect not to become Term Lenders under this
Agreement or whose participation in this Agreement as Term Lenders is expected
to be consummated pursuant to a post-closing assignment with Bank of America),
with the same force and effect as if such assignments were evidenced by
applicable Assignments and Acceptances (as defined in the Existing Agreement)
under the Existing Agreement, but without the payment of any related assignment
fee, (iii) the Swing Line (as defined under the Existing Agreement) shall
continue as the Swing Line hereunder, with the Swing Line Sublimit set out
herein, and the Swing Line Loans (as defined in the Existing Agreement), if any,
shall continue as and deemed to be Swing Line Borrowings hereunder, and (iv) the
Total Letter of Credit Commitment (as defined in the Existing Agreement) shall
continue as the Letter of Credit Sublimit hereunder.
(c) Notwithstanding anything to the contrary in the Existing Agreement or
in this Agreement, no other documents or instruments, including any Assignment
and Assumption, shall be, or shall be required to be, executed in connection
with the assignments set forth in Section 1.01(b) above (all of which
requirements are hereby waived), and such assignments shall be deemed to be made
with all applicable representations, warranties and covenants as if evidenced by
an Assignment and Acceptance. On the Closing Date, the applicable Lenders shall
make full cash settlement with one another, and with any lender under the
Existing Agreement that may not be a Lender under this Agreement, either
directly or through the Administrative Agent, as the Administrative Agent may
direct or approve, with respect to all assignments, reallocations and
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other changes in Revolving Credit Commitments and the portion of the Outstanding
Amount of the Term Loan allocable to each Term Lender, such that after giving
effect to such settlements (i) the Revolving Credit Commitment of each Revolving
Lender shall be as set forth on Schedule 2.01(a) and (ii) the Applicable Term
Percentage of each Term Lender shall be as set forth on Schedule 2.01(b).
(d) The Borrowers, each Guarantor, the Administrative Agent and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Existing Agreement that in any manner govern or evidence
the Obligations, the rights and interests of the Administrative Agent and the
Lenders, in any of their respective capacities, and any terms, conditions or
matters related to any thereof, shall be and hereby are amended and restated in
their entirety by the terms, conditions and provisions of this Agreement, and
the terms and provisions of the Existing Agreement, except as otherwise
expressly provided herein, shall be superseded by this Agreement.
(e) Notwithstanding this amendment and restatement of the Existing
Agreement, including anything in this Section 1.01, and certain of the related
"Loan Documents" as defined in the Existing Agreement (the "PRIOR LOAN
DOCUMENTS"), (i) all of the indebtedness, liabilities and obligations owing by
any Borrower under the Existing Agreement and other Prior Loan Documents shall
continue as Obligations hereunder, as amended, supplemented or otherwise
modified by the terms of this Agreement, (ii) each of this Agreement and the
Notes and the other Loan Documents is given as a substitution or supplement of,
as the case may be, and not as a payment of, the indebtedness, liabilities and
obligations of the Borrowers and the Guarantors under the Existing Agreement or
any Prior Loan Document and is not intended to constitute a novation thereof or
of any of the other Prior Loan Documents, and (iii) certain of the Prior Loan
Documents will remain in full force and effect, as set forth in this Agreement.
Upon the effectiveness of this Agreement, and following the payment of
outstanding "Revolving Loans" under the Existing Agreement with the proceeds of
the advance of the Term Loan funded on the Closing Date, all Loans owing by any
Borrower and outstanding under the Existing Agreement shall continue as Loans
hereunder subject to the terms hereof. Base Rate Loans under the Existing
Agreement shall continue to accrue interest at the Base Rate hereunder and the
parties hereto agree that the Interest Periods for all Eurodollar Rate Loans
outstanding under the Existing Agreement on the Closing Date shall be terminated
and shall, along with amounts to be advanced hereunder on the Closing Date, be
Eurodollar Rate Loans or Base Rate Loans under this Agreement for the applicable
Interest Periods, as elected by SEI in the manner provided in Section 2.01(b).
SEI agrees that it will pay any additional amounts required pursuant to Section
3.05 (or the similar provision of the Existing Agreement) in connection with
termination of Interest Periods and the allocation of Loans and Segments
pursuant to this Section 1.01 as if such Loans were being prepaid or converted
prior to the end of an Interest Period, as applicable.
1.02 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Accounting Adjustments" means the adjustments to certain financial terms
and computations more particularly described in Section 1.04.
3
"Acquired Indebtedness" means Indebtedness of a Person that is incurred or
assumed by SEI or any Subsidiary, or as to which SEI or any Subsidiary otherwise
becomes liable as debtor (including by the acquisition of assets securing any
such Indebtedness), in connection with an Acquisition permitted hereunder,
including any Indebtedness incurred in contemplation of such Acquisition.
"Acquisition" means the acquisition of (i) a controlling equity interest
in another Person (including the purchase of an option, warrant or convertible
or similar type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"Additional Restricted Payment Amount" means, as of any date of
determination thereof, the Aggregate Discretionary Basket minus that portion of
the Aggregate Discretionary Basket previously utilized to make Restricted
Payments in excess of $30,000,000 in any fiscal year of SEI.
"Adjusted Disposition Proceeds" means, with respect to any Asset
Disposition by SEI or any of its Subsidiaries, cash payments received by SEI or
any Subsidiary therefrom, including (A) any cash payments received pursuant to
any note or other debt security received in connection with any Asset
Disposition by SEI or any of its Subsidiaries and (B) any tax refunds in
connection with any Asset Disposition by SEI or any of its Subsidiaries, whether
received in cash or applied to tax liabilities, in each case as and when
received or applied, net of (i) all legal fees and expenses and other fees and
expenses paid to third parties and incurred in connection therewith (but
excluding any such fees and expenses paid to SEI or any of its Affiliates), (ii)
all taxes required to be paid or accrued as a consequence of such disposition,
and (iii) all amounts applied to repayment of Indebtedness (other than the
Obligations) secured by a Lien on the asset or property disposed.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify SEI
and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided
that neither the Administrative Agent, the L/C Issuer nor any Lender shall be
deemed to be an Affiliate of any Loan Party by virtue of its execution of any
Loan Document.
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"Aggregate Commitments" means, as at the date of determination thereof,
the sum of (a) the Aggregate Revolving Credit Commitments at such date plus (b)
the Outstanding Amount with respect to the Term Loan at such date.
"Aggregate Discretionary Basket" means, as of any date of measurement
thereof, the amount yielded by the following calculation for the period from
November 1, 2004 to the last day of the most recently ended fiscal quarter of
SEI (the "Base Period"):
(a) the sum of (i) the Operating Cash Flow of SEI and its Subsidiaries for
the Base Period plus (ii) the portion of the Net Proceeds of any issuance of
Equity Interests in SEI made during the Base Period but not required to be used
to make a prepayment pursuant to Section 2.07, plus (iii) the first $25,000,000
of cash proceeds received from each Asset Disposition made during any fiscal
year of SEI and not used to make a prepayment pursuant to Section 2.07, plus
(iv) the cash, cash equivalents and marketable securities on the consolidated
balance sheet of SEI and its Subsidiaries as of October 31, 2004, minus
(b) the sum of (i) the Cash Portion of Capital Expenditures made, or
deemed made pursuant to the definition of Cash Portion below, during the Base
Period, plus (ii) the Cash Portion of all Investments made, or deemed made
pursuant to the definition of Cash Portion below, during the Base Period (but
excluding Investments made by SEI or any SEI Guarantor in SEI or any SEI
Guarantor), plus (iii) the Cash Portion of the aggregate Cost of Acquisition of
all Acquisitions consummated during the Base Period (including the portion
deemed to have been paid in cash during the Base Period pursuant to the
definition of Cash Portion below).
For purposes of this definition of Aggregate Discretionary Basket:
"Cash Portion" means (a) with respect to Capital Expenditures and
Investments, amounts actually paid in cash during the Base Period plus
amounts with respect to which SEI and/or its Subsidiaries are directly
obligated to make payment in cash at any time prior to the date that is
six months after the date set forth in part (b) of the definition of Term
Loan Maturity Date, and (b) with respect to a Cost of Acquisition, the
Deemed Cost of Acquisition Amount for the Base Period.
"Deemed Cost of Acquisition Amount" means, with respect to any
Acquisition made during the Base Period, the sum (without duplication) of:
(a) that portion of the Cost of Acquisition paid in cash for such
Acquisition at the time of such Acquisition; plus (b) amounts paid in cash
during the Base Period in connection with contingent obligations described
in part (iii) of the definition of Cost of Acquisition, including
earnouts; plus (c) amounts paid in cash during the Base Period with
respect to that portion of the Cost of Acquisition of such Acquisition
constituting a direct obligation of SEI or one of its Subsidiaries,
provided that to the extent any such direct obligation described in this
subpart (c) has a final maturity date prior to the date that is six months
after the date set forth in part (b) of the definition of Term Loan
Maturity Date, the amount to be counted in this subpart (c) for the Base
Period with respect thereto shall be the greater of (i) the actual amount
paid in cash with respect to such obligations during the Base Period, or
(ii) the maximum aggregate amount of such direct obligation on the date of
its incurrence divided by the number of quarters until the date of its
final maturity,
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all multiplied by the number of fiscal quarters since the fiscal quarter
of such Acquisition (including both the fiscal quarter of the Acquisition
and the fiscal quarter most recently ended), provided further that in the
event any obligation within this proviso is refinanced so that its
maturity is after the date that is six months after the date set forth in
part (b) of the definition of Term Loan Maturity Date, the Deemed Cost of
Acquisition Amount with respect to such portion of a Cost of Acquisition
shall be recalculated without giving effect to the immediately preceding
proviso.
"Aggregate Revolving Credit Commitments" means the Revolving Credit
Commitments of all the Revolving Lenders.
"Agreement" means this Credit Agreement.
"Applicable Rate" means (a) with respect to the Term Loan Facility,
one-and-three-quarters percent (1.75%) with respect to Eurodollar Rate Loans and
three-quarters of a percent (0.75%) with respect to Base Rate Loans, and (b)
with respect to the Revolving Credit Facility (including Letters of Credit and
Swing Line Loans) and the commitment fee, the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section
6.01:
APPLICABLE RATE
Eurodollar
Rate +
----------
Pricing Consolidated Letters of Base Rate
Level Leverage Ratio Commitment Fee Credit +
-------------------------------------------------------------------------------------------------------
4 Greater than or equal to 3.0 to
1.0 0.500% 2.000% 1.000%
3 Less than 3.0 to 1.0 but greater
than or equal to 2.5 to 1.0 0.500% 1.750% 0.750%
2 Less than 2.5 to 1.0 but greater
than or equal to 2.0 to 1.0 0.375% 1.500% 0.500%
1 Less than 2.0 to 1.0 0.375% 1.375% 0.375%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.01; provided, however, that if a Compliance Certificate is
not delivered when due in accordance with such Section, then Pricing Level 4
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. The Applicable Rate in effect
from the Closing Date through the first Business Day immediately following the
date of delivery of the Compliance Certificate for the fiscal quarter of SEI
ending January 31, 2005 shall be determined based upon a certificate delivered
on the Closing Date demonstrating the Consolidated Leverage Ratio as of such
date, calculated with Consolidated EBITDA for the Four-Quarter Period of SEI
ended July 31, 2004 and Consolidated Funded Indebtedness pro forma for the
consummation of this Agreement and the Loans hereunder, or if no such
certificate is delivered, then based upon Pricing Level 3.
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"Applicable Revolving Percentage" means, with respect to each Revolving
Lender at any time, the percentage (carried out to the ninth decimal place) of
the Aggregate Revolving Credit Commitments represented by such Revolving
Lender's Revolving Credit Commitment at such time. If the commitment of each
Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if
the Aggregate Revolving Credit Commitments have expired, then the Applicable
Revolving Percentage of each Revolving Lender shall be determined based on the
Applicable Revolving Percentage of such Lender most recently in effect, giving
effect to any subsequent assignments. The initial Applicable Revolving
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01(a) or in the Assignment and Assumption pursuant to which such
Revolving Lender becomes a party hereto, as applicable.
"Applicable Term Percentage" means, with respect to each Term Lender, the
percentage (carried out to the ninth decimal place) of the principal amount of
the Term Loan funded by such Term Lender as of the date of measurement thereof,
after giving effect to any assignments made pursuant to Section 10.06 on or
prior to such date of measurement. The initial Applicable Term Percentage of
each Term Lender is set forth opposite the name of such Term Lender on Schedule
2.01(b) or in the Assignment and Assumption pursuant to which such Term Lender
becomes a party hereto, as applicable.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Asset Disposition" means any voluntary Disposition of (a) any of the
assets, excluding cash and cash equivalents, of any Person, or (b) any of the
capital stock, or securities or investments exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder to receive any of the
capital stock, of any Subsidiary of such Person.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of SEI and its Subsidiaries for the fiscal year ended October 31, 2003,
and the related consolidated
7
statements of income or operations, shareholders' equity and cash flows for such
fiscal year of SEI and its Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.08, and (c) the
date of termination of the commitment of each Revolving Lender to make Revolving
Loans, the commitment of the Swing Line Lender to make Swing Line Loans, and the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section
8.02.
"Available Liquidity" means, at any date of measurement thereof, the sum
of (without duplication) (a) Eligible Securities and readily marketable
securities of SEI and the SEI Guarantors held in the United States, plus (b)
provided that neither of them has elected to terminate all their obligations as
Borrowers under Section 2.19, Eligible Securities and readily marketable
securities of the PR Borrowers held in the United States or Puerto Rico, plus
(c) the amount by which the Aggregate Revolving Credit Commitments in effect on
such date exceeds the Outstanding Amount of all Revolving Loans, Swing Line
Loans and L/C Obligations.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan (including a Segment) that bears interest
based on the Base Rate.
"Base Rate Revolving Loan" means a Revolving Loan that is a Base Rate
Loan.
"Base Rate Segment" means a Segment bearing interest or to bear interest
at the Base Rate.
"Borrowers" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means any of (i) the borrowing of the Term Loan under the Term
Loan Facility, (ii) a Revolving Borrowing or (iii) a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
8
"Capital Expenditures" means, with respect to SEI and its Subsidiaries,
for any period the sum of (without duplication) (i) all expenditures (whether
paid in cash or accrued as liabilities) by SEI or any Subsidiary during such
period for items that would be classified as property, plant or equipment on the
consolidated balance sheet of SEI and its Subsidiaries, including without
limitation all transactional costs incurred in connection with such expenditures
provided the same have been capitalized, excluding, however, the amount of any
Capital Expenditures paid for with proceeds of casualty insurance as evidenced
in writing and submitted to the Administrative Agent together with any
Compliance Certificate delivered pursuant to Section 6.01(a)(ii), and (ii) with
respect to any Capital Lease entered into by SEI or its Subsidiaries during such
period, the present value of the lease payments due under such Capital Lease
over the term of such Capital Lease applying a discount rate equal to the
interest rate provided in such lease (or in the absence of a stated interest
rate, that rate used in the preparation of the financial statements described in
Section 6.01(a)), all the foregoing in accordance with GAAP; provided that
notwithstanding the foregoing, in no event shall this definition include (A) any
amount constituting a Cost of Acquisition or (B) with respect to any Capital
Lease entered into in connection with a sale and leaseback transaction permitted
hereunder, the amount of the present value of lease payments under any Capital
Lease otherwise required to be included by subpart (ii) above to the extent such
present value is not in excess of the amount received by SEI and its
Subsidiaries for the transfer of the asset that is the subject of such sale and
leaseback transaction.
"Capital Leases" means all leases which have been or should be capitalized
in accordance with GAAP as in effect from time to time, including but not
limited to Statement No. 13 of the Financial Accounting Standards Board and any
successor thereof.
"Cash Collateralize" has the meaning specified in Section 2.04(g).
"Cash Portion" has the meaning specified in the definition of Aggregate
Discretionary Basket.
"Cementerios" has the meaning given such term in the preamble hereto.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) other than
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and the ▇▇▇▇▇▇▇ Parties either (A) becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Securities Exchange
Act of 1934, as amended), directly or indirectly, of Voting Securities of
SEI (or securities convertible into or exchangeable for such Voting
Securities) representing 30% or more of the combined voting power of all
Voting Securities of SEI (on a fully diluted basis) or (B) otherwise has
the ability, directly or indirectly, to elect a majority of the board of
directors of SEI;
9
(ii) the first day on which a majority of the board of directors of
SEI are not Continuing Directors; or
(iii) the acquisition of direct or indirect Control of SEI by any
"person" or "group" (each as used in Sections 13(d)(3) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, collectively, all property of SEI, any Subsidiary or
any other Person in which the Collateral Agent, the Administrative Agent or any
Lender is granted a Lien under any Security Instrument as security for all or
any portion of the Obligations or any other obligation arising under any Loan
Document.
"Collateral Agent" has the meaning given such term in the preamble hereto.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Amendment to Loan Documents" means that certain Consolidated
Amendment to Guaranty and Security Instruments dated as of the Closing Date by
and among the Borrowers, the Guarantors and the Collateral Agent on behalf of
itself and the Lenders (including the Issuing Bank).
"Consolidated EBITDA" means, for any period ending on the date of
computation thereof with respect to SEI and its Subsidiaries on a consolidated
basis, the sum of, without duplication, the following, all determined on a
consolidated basis in accordance with GAAP, subject to Accounting Adjustments:
(i) Consolidated Net Income; (ii) Consolidated Interest Expense; (iii) taxes on
income (including reserves for deferred taxes not payable currently); (iv)
depreciation expense and amortization expense (including, but not limited to,
amortization of intangibles and goodwill and prearranged or preneed acquisition
costs); (v) tender premiums, call premiums, and fees and expenses incurred in
connection with a tender or call of the Senior Subordinated Notes; (vi) any
charge related to or arising from the purchase by SEI or its Subsidiaries of any
Equity Interests issued by SEI held by any employee, officer or director of SEI
or its Subsidiaries incurred prior to December 31, 2005; (vii) the non-cash
component of any impairment or unusual item of loss or expense (or minus the
non-cash component of any unusual item of gain or income); (viii) non-cash
charges for the early extinguishment of debt; and (ix) non-cash compensation
charges related to or arising from the vesting of any employee, officer or
director of SEI or its Subsidiaries in Equity Interests issued by SEI; in each
case, to the extent deducted (or added, as the case may be) in determining
Consolidated Net Income for such period, provided that to the extent requiring
an accrual or reserve for future cash disbursements, the future cash
disbursements shall be deducted in the periods in which they are made.
"Consolidated Funded Indebtedness" means, as of any date of determination
with respect to SEI and its Subsidiaries on a consolidated basis, without
duplication, all outstanding indebtedness in respect of money borrowed,
including without limitation all obligations under
10
Capital Leases, all Synthetic Lease Obligations, the deferred purchase price of
any property or services, and (without duplication) all payment and
reimbursement obligations with respect to all drawn surety bonds, letters of
credit, and bankers' acceptances, whether or not matured, evidenced by a
promissory note, bond, debenture or similar written obligation for the payment
of money (including reimbursement agreements and conditional sales or similar
title retention agreements), including all such items incurred by any
partnership or joint venture as to which SEI or any of its Subsidiaries is
liable as a general partner or joint venturer, other than trade payables and
accrued expenses incurred in the ordinary course of business.
"Consolidated Interest Coverage Ratio" means, with respect to SEI and its
Subsidiaries for any Four-Quarter Period ending on the date of computation
thereof, the ratio of (i) Consolidated EBITDA for such period plus Consolidated
Lease Payments for such period, to (ii) Consolidated Interest Expense for such
period plus Consolidated Lease Payments for such period.
"Consolidated Interest Expense" means, for any period ending on the date
of computation thereof with respect to SEI and its Subsidiaries on a
consolidated basis, the gross interest expense of SEI and its Subsidiaries on a
consolidated basis, including without limitation (i) the current amortized
portion of debt discounts to the extent included in gross interest expense, (ii)
the current amortized portion of all fees (including fees payable in respect of
any Swap Contracts) payable in connection with the incurrence of Indebtedness to
the extent included in gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest expense,
all determined on a consolidated basis in accordance with GAAP, subject to
Accounting Adjustments; provided that Consolidated Interest Expense shall
include the amount of payments in respect of Synthetic Lease Obligations that
are in the nature of interest and shall not include interest expense related to
non-controlling interests in funeral, cemetery and perpetual care trust
investments recorded in SEI's financial statements in accordance with Financial
Accounting Standards Board Interpretation Number 46, as revised.
"Consolidated Lease Payments" means the gross amount of all lease or
rental payments, whether or not characterized as rent, of SEI and its
Subsidiaries, excluding payments in respect of Capital Leases constituting
Indebtedness or in respect of Synthetic Lease Obligations, all determined on a
consolidated basis in accordance with GAAP, subject to Accounting Adjustments.
"Consolidated Leverage Ratio" means, as of the date of computation thereof
with respect to SEI and its Subsidiaries, the ratio of (i) Consolidated Funded
Indebtedness (determined as at such date) minus the value of Eligible Securities
and readily marketable securities of SEI, the SEI Guarantors and (provided that
neither of them has elected to terminate all their obligations as Borrowers
under Section 2.19) the PR Borrowers (determined as at such date) to (ii)
Consolidated EBITDA (for the Four-Quarter Period ending on (or most recently
ended prior to) such date).
"Consolidated Net Income" means, for any period ending on the date of
computation thereof with respect to SEI and its Subsidiaries on a consolidated
basis, net income of SEI and its Subsidiaries determined on a consolidated basis
in accordance with GAAP.
11
"Consolidated Senior Secured Indebtedness" means, as of any date of
determination, all Consolidated Funded Indebtedness that, as of such date, is
secured by any Lien on any asset or property of SEI or any of its Subsidiaries.
"Consolidated Senior Secured Leverage Ratio" means, as of the date of
computation thereof with respect to SEI and its Subsidiaries, the ratio of (i)
Consolidated Senior Secured Indebtedness (determined as at such date) to (ii)
Consolidated EBITDA (for the Four-Quarter Period ending on (or most recently
ended prior to) such date).
"Continuing Director" means, individually or collectively as the context
may indicate, as of any date of determination, any member of the board of
directors of SEI who:
(i) was a member of the board of directors of SEI on the Closing
Date; or
(ii) was nominated for election or elected to the board of directors
of SEI with the approval of a majority of the Continuing Directors who
were members of the board of directors of SEI at the time of such
nomination or election.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Cost of Acquisition" means, with respect to any Acquisition, as of the
date of entering into any agreement therefor, the sum of the following (without
duplication): (i) the amount of any cash and fair market value of other property
(excluding the value of any capital stock, warrants or options to acquire
capital stock of SEI or any Subsidiary to be transferred in connection
therewith) given as consideration, (ii) the amount (determined by using the face
amount or the amount payable at maturity, whichever is greater) of any
Indebtedness incurred, assumed or acquired by SEI or any Subsidiary in
connection with such Acquisition, (iii) all additional purchase price amounts in
the form of earnouts and other contingent obligations that should be recorded on
the financial statements of SEI and its Subsidiaries in accordance with GAAP,
(iv) all amounts paid in respect of covenants not to compete, consulting
agreements that should be recorded on financial statements of SEI and its
Subsidiaries in accordance with GAAP, and other affiliated contracts in
connection with such Acquisition, (v) the aggregate fair market value of all
other consideration given by SEI or any Subsidiary in connection with such
Acquisition, and (vi) out of pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred as of the date
of determination in effecting such transaction, and other similar transaction
costs so incurred.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"De Minimis Disposition" means a Disposition of a Subsidiary (whether by
Disposition of Equity Interests or of all or substantially all of the assets of
such Subsidiary) that owns only property with an aggregate fair market value of
less than $700,000.
12
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Deemed Cost of Acquisition Amount" has the meaning specified in the
definition of Aggregate Discretionary Basket.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be
an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum, and (b) when used with
respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2%
per annum; provided that in each case the Default Rate shall be computed using
the Applicable Rate at Pricing Level 4 as set forth in the definition of
Applicable Rate.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans or the Term Loan, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Direct Foreign Subsidiary" means each Subsidiary, other than a Domestic
Subsidiary or an Excluded Subsidiary, a majority of whose Voting Securities are
owned by SEI or a Domestic Subsidiary; provided that notwithstanding the
foregoing, the Excluded PR Subsidiaries shall not constitute Direct Foreign
Subsidiaries for the purposes of Section 6.19.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary of SEI organized under the laws
of the United States, any state or territory thereof (other than Puerto Rico) or
the District of Columbia, except the Excluded Subsidiaries.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has
13
occurred and is continuing, SEI (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include SEI or any of its Affiliates or Subsidiaries;
provided, further, that notwithstanding anything to the contrary in this
definition, no approval of SEI, the L/C Issuer or the Swing Line Lender will be
required with respect to assignments of any portion of the Term Loan Facility.
"Eligible Securities" means the following obligations and any other
obligations previously approved in writing by the Administrative Agent:
(a) Government Securities;
(b) obligations of any corporation organized under the laws of any
state of the United States payable in the United States, expressed to
mature not later than 180 days following the date of issuance thereof and
rated A or A-2 or better by S&P or ▇▇▇▇▇'▇; and
(c) non-interest bearing demand deposits and interest bearing demand
or time deposits or certificates of deposit maturing within one year from
the date of issuance, in each case either issued by a Lender or by a
commercial bank or trust company organized under the laws of the United
States or of any state thereof having capital surplus and undivided
profits aggregating at least $500,000,000 and being rated "A" or better by
S&P or "A" or better by ▇▇▇▇▇'▇.
"Employee Benefit Plan" means (i) any employee benefit plan, including any
Pension Plan, within the meaning of Section 3(3) of ERISA which (A) is
maintained for employees of SEI or any of its ERISA Affiliates, or any
Subsidiary or is assumed by SEI or any of its ERISA Affiliates, or any
Subsidiary in connection with any Acquisition or (B) has at any time been
maintained for the employees of SEI, any current or former ERISA Affiliate, or
any Subsidiary and (ii) any plan, arrangement, understanding or scheme
maintained by SEI or any Subsidiary that provides retirement, deferred
compensation, employee or retiree medical or life insurance, severance benefits
or any other benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any Governmental
Authority other than the United States.
"Environmental Laws" means any Federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating,
relating to, or imposing liability or standards of conduct concerning, any
environmental matters or conditions, environmental protection or conservation,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery
Act, as amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all regulations
promulgated thereunder, and any other "Superfund" or "Superlien" law.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly
14
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means: (i) a "Reportable Event" described in Section 4043 of
ERISA and the regulations issued thereunder (unless the notice requirement has
been waived by applicable regulation) with respect to a Pension Plan; or (ii)
the withdrawal of SEI or any ERISA Affiliate from a Pension Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA or was deemed such under Section 4062(e) of ERISA; or (iii) the
termination of a Pension Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to terminate a
Pension Plan by the PBGC; or (v) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the partial or
complete withdrawal of SEI or any ERISA Affiliate from a Multiemployer Plan; or
(vii) the imposition of a Lien with respect to a Pension Plan pursuant to
Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
condition which results in the reorganization or insolvency of a Multiemployer
Plan under Section 4241 or Section 4245 of ERISA, respectively; or (ix) any
event or condition which results in the termination of a Multiemployer Plan
under Section 4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any event or
condition with respect to any Employee Benefit Plan which is regulated by any
Foreign Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan's authority to operate
under the applicable Foreign Benefit Law.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA
15
LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
"Eurodollar Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan (including a Segment) that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Segment" means a Segment bearing interest or to bear
interest at the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded PR Subsidiaries" means each of the PR Borrowers and Simplicity
Plan of Puerto Rico, a Puerto Rican civil partnership.
"Excluded Subsidiaries" means each of the following Subsidiaries of SEI:
(a) Investors Trust, Inc., a Texas corporation, (b) The Lincoln Memorial Park
Cemetery Association, a Nebraska corporation, (c) West Lawn Cemetery, a Nebraska
corporation, (d) so long as it is inactive and remains administratively
dissolved, Fine Finishes, Inc., a North Carolina corporation, and (e) so long as
it is inactive and remains administratively dissolved, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co., a
North Carolina corporation.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of any Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which SEI is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by SEI under Section
10.13), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from SEI with respect to such
withholding tax pursuant to Section 3.01(a).
16
"Executive Officer" means, with respect to SEI, any of its Chief Executive
Officer, President, Chief Financial Officer or Treasurer.
"Existing Agreement" has the meaning specified in the recitals to this
Agreement.
"Facility Termination Date" means such date as all of the following shall
have occurred: (a) the Borrowers shall have permanently terminated the Revolving
Credit Facility and the Swing Line and paid in full the Outstanding Amount of
all Revolving Loans, L/C Obligations and Swing Line Loans, together with all
accrued and unpaid interest and fees thereon, other than (i) the undrawn portion
of Letters of Credit and (ii) all letter of credit fees relating thereto
accruing after such date (which shall be payable solely for the account of the
L/C Issuer) computed (based on the interest rates and the Applicable Rate for
Eurodollar Loans under the Revolving Credit Facility then in effect) on such
undrawn amounts to the respective expiry dates of the Letters of Credit, in each
case as have been fully Cash Collateralized in a manner consistent with the
terms of Section 8.02(c) or as to which other arrangements satisfactory to the
L/C Issuer shall have been made; (b) the Borrowers shall have paid the
Outstanding Amount of the Term Loan in full, together with all accrued and
unpaid interest, premium (if applicable) and fees thereon; (c) all Related Swap
Contracts shall have been terminated, expired or cash collateralized; (d) all
commitments of the Term Lenders to make any portion of the Term Loan and all
Revolving Credit Commitments shall have terminated or expired; and (e) the
Borrowers shall have fully, finally and irrevocably paid and satisfied in full
all other Obligations (except for Obligations consisting of continuing
indemnities and other contingent Obligations of any Borrower or any Guarantor
that may be owing to the Administrative Agent (or any sub-agent thereof), any
Lender, the L/C Issuer, or any Related Party of any of the foregoing Persons
pursuant to the Loan Documents and expressly survive termination of this
Agreement).
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated October 19, 2004, among
SEI, the Administrative Agent and the Arranger.
"Florida Bond Obligation" means, at any date of measurement thereof, the
sum, without duplication, of (a) the amount required to be bonded by SEI or any
of its Subsidiaries and (b) the amount of other credit support required to be
provided by SEI or any its Subsidiaries, in each case in connection with certain
trust conversions by SEI or its Subsidiaries in the State of Florida.
17
"Foreign Benefit Law" means any applicable statute, law, ordinance, code,
rule, regulation, order or decree of any foreign nation or any province, state,
territory, protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning, any
Employee Benefit Plan.
"Foreign Cash Equivalents" means the following obligations and any other
obligations previously approved in writing by the Administrative Agent:
(a) the official currency of Australia, Belgium, Canada, France,
Germany, Mexico, the Netherlands, New Zealand, Spain and the United
Kingdom;
(b) securities issued or directly and fully guaranteed or insured by
the government of any of Australia, Belgium, Canada (including any
province thereof), France, Germany, Mexico, the Netherlands, New Zealand,
Spain or the United Kingdom or any agency or instrumentality of any of the
foregoing (provided that the full faith and credit of the relevant
jurisdiction is pledged in support thereof), and in each case having
maturities of not more than six months from the date of acquisition;
(c) certificates of deposit, time deposits and money market deposits
with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any commercial bank or trust
company organized in a country listed in clause (a) above and having
capital and surplus in excess of $500,000,000 (or its foreign currency
equivalent);
(d) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (c) above;
(e) money market funds at least 95% of the assets of which
constitute Foreign Cash Equivalents of the kinds described in clauses (a)
through (d) of this definition; and
(f) any other security owned on the Closing Date by any Subsidiary
of SEI that is not a Domestic Subsidiary.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which SEI is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Four-Quarter Period" means a period of four full consecutive fiscal
quarters of SEI and its Subsidiaries, taken together as one accounting period.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
18
"Funerarias" has the meaning given such term in the preamble hereto.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions, statements and pronouncements of the Financial
Accounting Standards Board, the Accounting Principles Board, the American
Institute of Certified Public Accountants, the SEC and the PCAOB or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances to
which they are being applied as of the date of application and are applied on a
consistent basis.
"Government Securities" means direct obligations of, or obligations the
timely payment of principal and interest on which are fully and unconditionally
guaranteed by, the United States or any agency or instrumentality thereof so
long as such obligations are rated A or A-2 or better by S&P and ▇▇▇▇▇'▇,
respectively.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Granting Lender" has the meaning specified in Section 10.06(h).
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning. The term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
19
"Guarantors" means, at any date, collectively or individually as the
context may indicate, the SEI Guarantors, the PR Guarantors, and any other
Subsidiary of SEI that is required to be party to a Guaranty at such date.
"Guaranty" means each guaranty agreement between one or more Guarantors
and the Administrative Agent for the benefit of the Administrative Agent and the
Lenders, delivered as of the Original Closing Date, the Closing Date (if
applicable) or thereafter pursuant to Section 6.19 or otherwise.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) Capital Leases and Synthetic Lease Obligations;
(g) all obligations of such Person in respect of any Equity Interest
in such Person or any other Person, by its terms or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, in each case except such obligations that
are payable (whether on the happening of any event or otherwise) not
earlier than the date that is six months after the date set forth in part
(b) of the definition of Term Loan Maturity Date (other than customary and
usual put rights or repurchase or redemption obligations arising as a
result of a change in control (so long as such change in control provision
is not more restrictive than the Change of Control
20
provided herein), valued, in the case of a redeemable preferred interest,
at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends;
(h) all Non-Compete Liabilities; and
(i) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any Capital Lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" means the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons.
"Intellectual Property Security Agreement" means, collectively (or
individually as the context may indicate), (i) the Intellectual Property
Security Agreement dated as of the Original Closing Date by SEI and the SEI
Guarantors to the Collateral Agent, (ii) the Assignment of Patents, Trademarks
and Copyrights dated as of the Original Closing Date by SEI and the SEI
Guarantors to the Collateral Agent, and (iii) any additional Intellectual
Property Security Agreement and any additional Assignment of Patents, Trademarks
and Copyrights delivered to the Collateral Agent on the Closing Date or
thereafter pursuant to Section 6.19 or otherwise.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each fiscal quarter of SEI and the Revolving Credit Maturity Date or Term
Loan Maturity Date, as applicable.
"Interest Period" means, (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three, six
or twelve months thereafter, in each case subject to availability, as selected
by SEI in its Revolving Loan Notice or Term Loan Interest Rate Selection Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
21
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Revolving Credit
Maturity Date or the Term Loan Maturity Date, as applicable.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"LC Account Agreement" means the LC Account Agreement dated as of the
Original Closing Date between SEI and the Administrative Agent.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Revolving Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
22
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination and without
duplication, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings. For purposes of computing the amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.08. For all purposes of this Agreement, if on any date
of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Revolving Credit Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Revolving Credit Commitments. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Revolving
Credit Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of (including deposit
arrangements structured to provide) a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real property, and
any financing lease having substantially the same economic effect as any of the
foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Revolving Loan, a Swing Line Loan or a portion of
the Term Loan (including a Segment thereof).
23
"Loan Documents" means this Agreement, each Note, each Issuer Document,
the Fee Letter, each Guaranty, the LC Account Agreement and each Security
Instrument and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender (including the L/C Issuer) or
the Administrative Agent or the Collateral Agent in connection with the Loans
made and transactions contemplated under this Agreement.
"Loan Parties" means, collectively, the Borrowers, each Guarantor and each
other Person providing Collateral pursuant to any Security Instrument.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, liabilities (actual or contingent), properties, operations,
prospects or condition, financial or otherwise, of SEI and its Subsidiaries,
taken as a whole, or in the facts and information regarding such entities as
represented to date, (ii) the ability of either SEI or the Loan Parties, taken
as a whole, to pay or perform the obligations, liabilities and indebtedness
under the Loan Documents as such payment or performance becomes due in
accordance with the terms thereof, or (iii) the rights, powers and remedies of
the Administrative Agent, the Collateral Agent or any Lender under any Loan
Document or the validity, legality or enforceability thereof.
"Maximum Permitted Time" means (a) with respect to Section 6.01(a)(i), the
latest date for the delivery of annual financial statements on Form 10-K (or
other applicable form) pursuant to the rules of the SEC in effect at such time,
including any applicable grace period for which no special application to the
SEC is required, (b) with respect to Section 6.01(b)(i), the latest date for the
delivery of quarterly financial statements on Form 10-Q (or other applicable
form) pursuant to the rules of the SEC in effect at such time, including any
applicable grace period for which no special application to the SEC is required,
and (c) with respect to Compliance Certificates, 15 days after the required date
of delivery of the financial statements described in Section 6.01(a)(i) or
Section 6.01(b)(i), as applicable.
"Maximum Restricted Payment Amount" means, as measured at the time of any
Restricted Payment permitted by Section 7.09, the sum of $30,000,000 in each
fiscal year of SEI (without carrying forward any unused amounts in one fiscal
year to any later fiscal year) plus the Additional Restricted Payment Amount in
effect on such date (if positive), it being understood that the first amounts
used each fiscal year will be the annual $30,000,000 limit and the Additional
Restricted Payment Amount will only be utilized after such annual amount is
exhausted for such fiscal year.
"Maximum Specified Additional Debt Amount" means, as of any date of
determination thereof, (a) $335,000,000 minus (b) the maximum aggregate
principal amount of the Refinancing Indebtedness that have been issued prior to,
or are to be issued on, such date, minus (c) the maximum aggregate principal
amount by which the Aggregate Commitments have been increased prior to, or are
to be increased on, such date (including as a result of creating a new term loan
facility) pursuant to Section 2.16, it being understood that the aggregate
principal amount of the Refinancing Indebtedness and the amount of any increase
in the Aggregate Commitments pursuant to Section 2.16 shall not in any case
exceed $335,000,000 whether occurring consecutively or simultaneously.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
24
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Proceeds" (a) from any public or private offering of any debt or
equity security means cash payments received by SEI or any Subsidiary therefrom
as and when received, net of all legal, accounting, banking and underwriting
fees and expenses, commissions, discounts and other issuance expenses incurred
in connection therewith (but excluding any transaction fees or expenses paid to
SEI or any of its Affiliates) and all taxes required to be paid or accrued as a
consequence of such issuance; and (b) from any Asset Disposition by SEI or any
of its Subsidiaries means the Adjusted Disposition Proceeds therefrom minus all
amounts utilized by the Borrowers prior to the date of determination of the "Net
Proceeds" from such Asset Disposition in accordance with Section 2.07(a)(iii) to
purchase other assets, make Capital Expenditures and otherwise reinvest in the
business of SEI and its Subsidiaries, in each case in a manner permitted by this
Agreement.
"New Term Loan Facility" has the meaning specified in Section 2.16(a)
"Non-Compete Liabilities" means all liabilities of SEI or its Subsidiaries
to the extent such liabilities arise directly from non-compete obligations of
SEI or a Subsidiary.
"Notes" means, collectively, the Term Notes, the Swing Line Note and the
Revolving Notes.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, or arising under any
Related Swap Contract, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"Operating Cash Flow" means, for any period of measurement thereof, the
amount of "Net Cash Provided by Operating Activities" as that term is used in
the Form 10-K filed by SEI with the SEC for the fiscal year ended October 31,
2003, or such similar term as may from time to time be reflected on the cash
flow statement of SEI and its Subsidiaries conveying substantially the same
information as provided by the term "Net Cash Provided by Operating Activities"
in such October 31, 2003 Form 10-K.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement,
25
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.
"Original Closing Date" means June 29, 2001, the date of closing of the
Existing Agreement.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (a) with respect to Revolving Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date; (b) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrowers of
Unreimbursed Amounts; and (c) with respect to the Term Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to the
Borrowing of the Term Loan and any prepayments or repayments of the Term Loan
(or any Segment) occurring on such date.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation. "PCAOB" means the
Public Company Accounting and Oversight Board.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Indebtedness" means any Indebtedness permitted to be incurred,
created or assumed, or permitted to exist, pursuant to Section 7.05.
"Permitted Liens" means any Liens permitted to be incurred, created or
assumed, or permitted to exist, pursuant to Section 7.04(a), (b), (c), (f), (g)
or (h).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
26
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreement" means, collectively (or individually as the context may
indicate), (i) that certain Securities Pledge Agreement dated as of the Original
Closing Date between SEI and the Collateral Agent for the benefit of the
Collateral Agent, the Administrative Agent, the Lenders and certain other
Persons as applicable, (ii) that certain Securities Pledge Agreement dated as of
the date hereof between certain Domestic Subsidiaries and the Collateral Agent
for the benefit of the Collateral Agent, the Administrative Agent, the Lenders
and certain other Persons as applicable, (iii) any additional Securities Pledge
Agreement delivered to the Collateral Agent on the Closing Date or thereafter
pursuant to Section 3A.01 or 6.19 or otherwise, and (iv) if applicable, with
respect to any Subsidiary Securities issued by a Direct Foreign Subsidiary, any
additional or substitute charge, agreement, document, instrument or conveyance,
in form and substance acceptable to the Administrative Agent, conferring under
applicable foreign law upon the Collateral Agent for the benefit of the
Collateral Agent, the Administrative Agent and the Lenders (and certain other
Persons, if applicable) a Lien upon such Subsidiary Securities as are owned by
SEI or any Domestic Subsidiary.
"Pledge Agreement Supplement" means, with respect to each Pledge
Agreement, the Pledge Agreement Supplement in the form affixed as an Exhibit to
such Pledge Agreement.
"Pledged Interests" means the Subsidiary Securities pledged or required to
be pledged as Collateral pursuant to the terms of this Agreement or any Pledge
Agreement.
"PR Borrowers" has the meaning given such term in the preamble hereto.
"PR Borrowing Limit" means, with respect to the PR Borrowers as to the
Term Loan Facility and the Revolving Credit Facility, the respective maximum
principal amounts set forth below:
(a) Term Loan Facility $30,000,000
(b) Revolving Credit Facility $10,000,000
"PR Downstream Limit" means, at any time of measurement thereof, (a) the
sum of (i) $10,000,000 plus (ii) any and all amounts from time to time paid by
the PR Borrowers to SEI or any SEI Guarantor in the form of cash dividends or
other cash distributions in respect of SEI's direct or indirect ownership
interests in the PR Borrowers plus (iii) cash amounts, not to exceed $29,000,000
in the aggregate, from time to time received by SEI or any SEI Guarantor,
directly or indirectly, from the PR Borrowers in respect of intercompany
Indebtedness owing from the PR Borrowers, directly or indirectly, to SEI or any
SEI Guarantor on the Closing Date, minus (b) the aggregate amount of the
calculation in (a) above that has been or is being utilized at such time
pursuant to Sections 7.05(g)(vi), 7.06(g)(v) and 7.07(e)(iv).
"PR Guarantors" means, individually or collectively as the context may
indicate, each PR Subsidiary as of the Closing Date, and each other PR
Subsidiary delivering a Guaranty from time to time pursuant to Section 6.19
hereof.
27
"PR Subsidiary" means, individually or collectively as the context may
indicate, any Subsidiary of either Cementerios or Funerarias organized under the
laws of Puerto Rico.
"Refinancing Indebtedness" means unsecured senior notes, unsecured senior
subordinated notes or other unsecured Indebtedness of SEI issued for the purpose
of refinancing the Senior Subordinated Notes where (a) the earliest maturity
(including any "put" option of the holders thereof, other than customary and
usual put rights or repurchase obligations arising as a result of a change in
control (so long as such change in control provision is not more restrictive
than the Change of Control provided herein) and customary and usual obligations
requiring repurchase with the proceeds of asset sales in the event such proceeds
are not used or required to be used to reinvest or pay down other senior
indebtedness outside of the 350-day reinvestment period provided in this
Agreement) of any such notes or other Indebtedness is not earlier than the date
that is six months after the date set forth in part (b) of the definition of
Term Loan Maturity Date, (b) such notes or other Indebtedness shall not in any
way limit the ability of SEI or any of its Subsidiaries to ▇▇▇▇▇ ▇ ▇▇▇▇ on any
of their respective real property as security for the Obligations, (c) such
notes or other Indebtedness may be Guaranteed by the SEI Guarantors, and (d)
either (i) the issuance thereof satisfies the requirements of Section 7.05(i) or
of Section 7.05(j) (in addition to the requirements of Section 7.05(h)), or (ii)
the terms thereof are otherwise satisfactory to the Administrative Agent in its
reasonable discretion.
"Register" has the meaning specified in Section 10.06(c).
"Registrar" means, with respect to any Subsidiary Securities, any Person
authorized or obligated to maintain records of the registration of ownership or
transfer of ownership of interests in such Subsidiary Securities, and in the
event no such Person shall have been expressly designated by the related
Subsidiary, shall mean (i) as to any corporation or limited liability company,
its Secretary (or comparable official), and (ii) as to any partnership, its
general partner (or managing general partner if one shall have been appointed).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Related Swap Contract" means all Swap Contracts which are entered into or
maintained by SEI or any Subsidiary with a Lender or Affiliate of a Lender and
which are not prohibited by the express terms of the Loan Documents.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Loans, a Revolving Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, at any time after the Aggregate
Revolving Credit Commitments have been terminated, Lenders holding in the
aggregate more than 50% of the
28
Total Outstandings (with the aggregate amount of each Revolving Lender's risk
participation and funded participation in L/C Obligations and Swing Line Loans
being deemed "held" by such Revolving Lender for purposes of this definition);
provided that the portion of the Aggregate Commitments of, and the portion of
the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Required Revolving Lenders" means, as of any date of determination,
Revolving Lenders with Revolving Credit Commitments that total more than 50% of
the Aggregate Revolving Credit Commitments or, at any time after the Aggregate
Revolving Credit Commitments have been terminated, Revolving Lenders holding in
the aggregate more than 50% of the Outstanding Amount of the Revolving Loans
(with the aggregate amount of each Revolving Lender's risk participations and
funded participations in L/C Obligations and Swing Line Loans being deemed
"held" by such Revolving Lender for purposes of this definition); provided that
the portion of the Aggregate Revolving Credit Commitments of, and the portion of
the Outstanding Amount of the Revolving Loans held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.
"Required Term Lenders" means, as of any date of determination, Term
Lenders having more than 50% of the Outstanding Amount of the Term Loan;
provided that the portion of the Outstanding Amount of the Term Loan held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term Lenders.
"Responsible Officer" means the chief executive officer, president, or any
vice president of a Loan Party or, with respect to financial matters, the chief
financial officer, treasurer, chief accounting officer or assistant treasurer
thereof, or any other Person authorized by the Board of Directors of a Loan
Party (or the appropriate committee thereof) as an Responsible Officer thereof,
as set forth from time to time in a certificate in the form of Exhibit F. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means (a) any dividend or other distribution, direct
or indirect, on account of any shares of any Equity Interests of SEI or any
Subsidiary Securities of its Subsidiaries (other than those payable or
distributable solely to SEI or a Subsidiary of SEI) now or hereafter
outstanding, except a dividend payable solely in shares of a class of stock or
other equity interests to the holders of that class; (b) any redemption,
conversion, exchange, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of SEI or any
Subsidiary Securities of its Subsidiaries (other than those payable or
distributable solely to SEI or any SEI Guarantor) now or hereafter outstanding;
(c) any payment (other than those payable solely in shares of a class of stock
or other equity interests) made to retire, or to obtain the surrender of, any
Equity Interests of SEI or any Subsidiary Securities of its Subsidiaries now or
hereafter outstanding; (d) any issuance and sale of Subsidiary Securities of any
SEI Guarantor other than (x) to SEI or another SEI Guarantor, or (y) in
connection with any Disposition of the issuer thereof permitted hereby; and (e)
any issuance and sale of Subsidiary Securities of any Subsidiary of SEI other
than an SEI Guarantor other than (x) to another
29
Subsidiary of SEI other than an SEI Guarantor, or (y) in connection with any
Disposition of the issuer thereof permitted hereby.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Revolving Lenders pursuant
to Section 2.02.
"Revolving Credit Commitment" means, as to each Revolving Lender, its
obligation to (a) make Revolving Loans to the Borrowers pursuant to Section
2.02, (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Revolving
Lender's name on Schedule 2.01(a) or in the Assignment and Assumption pursuant
to which such Revolving Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
"Revolving Credit Facility" means the facility described in Section 2.02
providing for Revolving Loans to the Borrowers by the Revolving Lenders in the
maximum aggregate principal amount at any time outstanding of $125,000,000, as
increased or reduced from time to time pursuant to the terms of this Agreement.
"Revolving Credit Maturity Date" means (a) if on December 31, 2007 more
than $75,000,000 of principal amount of the Senior Subordinated Notes is
outstanding, December 31, 2007, (b) if on December 31, 2007 $75,000,000 or less
of principal amount of the Senior Subordinated Notes is outstanding, November
19, 2009, or (c) in either case, such earlier date upon which the Aggregate
Revolving Credit Commitments may be terminated in accordance with the terms
hereof.
"Revolving Lender" means each Lender that has a Revolving Credit
Commitment or, following termination of the Revolving Credit Commitments, has
Revolving Loans outstanding or participations in an outstanding Letter of Credit
or Swing Line Loan.
"Revolving Loan" means a Base Rate Loan or a Eurodollar Rate Loan made to
the Borrower by a Revolving Lender in accordance with its Applicable Revolving
Percentage pursuant to Section 2.02, except as otherwise provided herein.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.03(a), which, if in writing,
shall be substantially in the form of Exhibit A-1.
"Revolving Note" means a promissory note made by the Borrowers in favor of
a Revolving Lender evidencing Revolving Loans made by such Revolving Lender,
substantially in the form of Exhibit C-1.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
30
"Security Agreement" means, collectively (or individually as the context
may indicate), (i) the Security Agreement dated as of the Original Closing Date
by SEI and the SEI Guarantors to the Collateral Agent, and (ii) any additional
Security Agreement delivered to the Collateral Agent on the Closing Date or
thereafter pursuant to Section 6.19 or otherwise.
"Security Instruments" means, collectively, the Pledge Agreement, the
Security Agreement, the Intellectual Property Security Agreement, the
Consolidated Amendment to Loan Documents and all other agreements (including
control agreements), instruments and other documents, whether now existing or
hereafter in effect, pursuant to which SEI or any Subsidiary or other Person
shall grant or convey to the Collateral Agent, Administrative Agent or the
Lenders a Lien in, or any other Person shall acknowledge any such Lien in,
property as security for all or any portion of the Obligations or any other
obligation under any Loan Document, as any of them may be amended, modified or
supplemented from time to time.
"Segment" means a portion of the Term Loan (or all thereof) with respect
to which a particular interest rate is (or is proposed to be) applicable.
"SEI" has the meaning given such term in the preamble hereto.
"SEI Guarantors" means, individually or collectively as the context may
indicate, each Domestic Subsidiary of SEI as of the Closing Date, other than the
Excluded Subsidiaries, and each other Domestic Subsidiary of SEI delivering a
Guaranty from time to time pursuant to Section 6.19 hereof.
"Seller Financed Indebtedness" means the Indebtedness of SEI and its
Subsidiaries outstanding on the Closing Date (a) that is owing to third parties,
(b) that was incurred or assumed in connection with the acquisition of assets
(including stock) prior to May 10, 2001, and (c) the maximum principal amount of
which is not in excess of $4,000,000.
"Senior Subordinated Indenture" means that certain Indenture by and among
SEI and Firstar Bank, N.A. as trustee dated as of the Original Closing Date
providing for the issuance of the Senior Subordinated Notes.
"Senior Subordinated Notes" means those certain unsecured notes of SEI
issued pursuant to the Senior Subordinated Indenture in the initial aggregate
principal amount of $300,000,000.
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(a) the fair value of its assets (both at fair valuation and at
present fair saleable value on an orderly basis) is in excess of the total
amount of its liabilities, including, without duplication, contingent
obligations; and
(b) it is then able and expects to be able to pay its debts as they
mature; and
(c) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"SPC" has the meaning specified in Section 10.06(h).
31
"▇▇▇▇▇▇▇ Parties" means, individually or collectively as the context may
indicate, (a) any family member of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., or (b) any trust, the
beneficiary, owner or Person beneficially holding an 80% or more controlling
interest of which consists of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and/or such other Persons
referred to in the immediately preceding clause (a).
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
SEI.
"Subsidiary Securities" means the Equity Interests in any Subsidiary,
whether or not constituting a "security" under Article 8 of the Uniform
Commercial Code as in effect in any jurisdiction.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the SEI or its Subsidiaries shall be a Swap Contract.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
32
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.05.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.05(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Note" means the promissory note made by the Borrowers in favor
of Bank of America, as Swing Line Lender, evidencing the Swing Line Loans made
by the Swing Line Lender, substantially in the form of Exhibit C-3.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Revolving Credit Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Revolving Credit
Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Lender" means each Lender that has a portion of the Term Loan
outstanding under the Term Loan Facility.
"Term Loan" means the Loan made pursuant to the Term Loan Facility, as
described in Section 2.01.
"Term Loan Facility" means the facility described in Section 2.01
consisting of the Term Loan advanced to the Borrowers on the Closing Date in an
original principal amount of $100,000,000, as increased or reduced from time to
time pursuant to the terms of this Agreement.
"Term Loan Interest Rate Selection Notice" means the written notice
delivered by a Responsible Officer of SEI in connection with the election of a
subsequent Interest Period for any Eurodollar Rate Segment or the conversion of
any Eurodollar Rate Segment into a Base Rate Segment or the conversion of any
Base Rate Segment into a Eurodollar Rate Segment, which, if in writing, shall be
substantially in the form of Exhibit A-2.
"Term Loan Maturity Date" means (a) if on December 31, 2007 more than
$75,000,000 of principal amount of the Senior Subordinated Notes is outstanding,
December 31, 2007, (b) if
33
on December 31, 2007 $75,000,000 or less of principal amount of the Senior
Subordinated Notes is outstanding, November 19, 2011, or (c) in either case,
such earlier date upon which the Outstanding Amounts of the Term Loan are due
and payable in accordance with the terms hereof.
"Term Loan Note" means a promissory note made by the Borrowers in favor of
a Term Lender evidencing the portion of the Term Loan made by such Term Lender,
substantially in the form of Exhibit C-2.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Type" means with respect to (a) a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan, and (b) a Segment, its character as a Base
Rate Segment or a Eurodollar Rate Segment.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
"Voting Securities" means Equity Interests issued by a Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of such
a contingency.
1.03 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), including in each case as amended by the Consolidated Amendment
to Loan Documents or supplemented by a Pledge Agreement Supplement, as
applicable, (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending replacing or interpreting such law and any
34
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.04 ACCOUNTING ADJUSTMENTS. With respect to any Asset Disposition by SEI
or any of its Subsidiaries permitted under Section 7.06(c) or (f) or any
Acquisition consummated on or after the Closing Date and prior to the Facility
Termination Date that is permitted hereby, the following shall apply:
(a) For each of the four Four-Quarter Periods ending next following the
date of each Asset Disposition by SEI or any of its Subsidiaries permitted under
Section 7.06(c) or (f),
(i) to the extent GAAP, applied on a consistent basis, does not so
provide, Consolidated EBITDA (and the components thereof) shall exclude
the results of operations of the Person or assets so disposed of on a
historical pro forma basis as if such disposition had been consummated on
the first day of such Four-Quarter Period; and
(ii) to the extent GAAP, applied on a consistent basis, does not so
provide, Consolidated Interest Expense shall be adjusted on a historical
pro forma basis to (A) eliminate interest expense accrued during such
period on any Indebtedness permanently repaid with the proceeds of, or
disposed of in connection with, such Asset Disposition and (B) include
interest expense on any Indebtedness (including Indebtedness hereunder)
incurred, acquired or assumed in connection with such Asset Disposition
("Incremental Disposition Debt") calculated (x) as if all such Incremental
Disposition Debt has been incurred as of the first day of such
Four-Quarter Period and (y) at the following interest rates: (I) for all
periods subsequent to the date of the Asset Disposition and for
Incremental Disposition Debt assumed or acquired in the Asset Disposition
and in effect prior to the date of the Asset Disposition, at the actual
rates of interest applicable thereto, and (II) for all periods prior to
the actual incurrence of such Incremental Disposition Debt, equal to the
rate of interest actually applicable to such Incremental Disposition Debt
hereunder or under other financing documents applicable thereto, as the
case may be.
(b) For each of the four Four-Quarter Periods ending next following the
date of each Acquisition,
(i) to the extent GAAP, applied on a consistent basis, does not so
provide, Consolidated EBITDA (and the components thereof) shall include
the results of
35
operations of the Person or assets so acquired on a historical pro forma
basis as if such acquisition had been consummated on the first day of such
Four-Quarter Period; and
(ii) to the extent GAAP, applied on a consistent basis, does not so
provide, Consolidated Interest Expense shall be adjusted on a historical
pro forma basis to (A) eliminate interest expense accrued during such
period on any Indebtedness repaid in connection with such Acquisition and
(B) include interest expense on any Indebtedness (including Indebtedness
hereunder) incurred, acquired or assumed in connection with such
Acquisition ("Incremental Acquisition Debt") calculated (x) as if all such
Incremental Acquisition Debt had been incurred as of the first day of such
Four-Quarter Period and (y) at the following interest rates: (I) for all
periods subsequent to the date of the Acquisition and for Incremental
Acquisition Debt assumed or acquired in the Acquisition and in effect
prior to the date of Acquisition, at the actual rates of interest
applicable thereto, and (II) for all periods prior to the actual
incurrence of such Incremental Acquisition Debt, equal to the rate of
interest actually applicable to such Incremental Acquisition Debt
hereunder or under other financing documents applicable thereto, as the
case may be.
1.05 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(a) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either SEI or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrowers shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP; provided that (i) the Borrowers' obligations
under this Section 1.05(b) are expressly limited to such good faith negotiations
and the Borrowers shall have no obligation to enter into any such amendment to
the extent the Borrowers have acted in good faith as provided herein but have
been unable to reach agreement with the Administrative Agent and the Lenders on
the substance of any such amendment, and (ii) any such amendment shall be
subject to the approval of the Required Lenders; provided, further, that unless
and until so amended, (A) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (B) SEI shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.06 ROUNDING. Any financial ratios required to be maintained by the
Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
36
1.07 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Documents related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 TERM LOANS.
(a) Subject to the terms and conditions of this Agreement, each Term
Lender severally, and not jointly, agrees to make an advance of the Term Loan to
the Borrowers (subject to the PR Borrowing Limit) on the Closing Date on a pro
rata basis determined by its Applicable Term Percentage of the Term Loan,
subject to adjustment for amounts outstanding under the Existing Agreement that
are to remain outstanding as a portion of the Term Loan under this Agreement.
The principal amount of each Segment of the Term Loan outstanding hereunder from
time to time shall bear interest and the Term Loan shall be repayable as herein
provided. No amount of the Term Loan repaid or prepaid by the Borrowers may be
reborrowed hereunder, and no subsequent Borrowing under the Term Loan Facility
shall be allowed after the initial such advance of the Term Loan on the Closing
Date.
(b) Not later than 1:00 P.M. on the Closing Date each Term Lender shall,
pursuant to the terms and subject to the conditions of this Agreement and
subject to adjustment for amounts outstanding under the Existing Agreement that
are to remain outstanding as a portion of the Term Loan under this Agreement,
make its Applicable Term Percentage of the Term Loan available by wire transfer
to the Administrative Agent. Such wire transfer shall be directed to the
Administrative Agent at the Administrative Agent's Office and shall be in the
form of immediately available funds in Dollars. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, including without limitation the satisfaction of all applicable
conditions in Sections 4.01 and 4.02, be made available to the Borrowers
(subject to the PR Borrowing Limit) by delivery of the proceeds thereof as shall
be directed by the Responsible Officer of SEI and reasonably acceptable to the
Administrative Agent. The initial Borrowing of the Term Loan (including the
portion of the Term Loan outstanding under the Existing Agreement prior to the
Closing Date and to remain outstanding hereunder, but with a new Interest Period
pursuant to Section 1.01(e)) may be made as a Eurodollar Rate Loan so long as
SEI delivers to the Administrative Agent irrevocable notice thereof, together
with funding indemnity agreement reasonably satisfactory to the Administrative
Agent, not later than 11:00 a.m. three Business Days prior to the Closing Date.
Otherwise, the entire Term Loan shall be made or remain outstanding, as the case
may be, as a Base Rate Loan, subject to conversion after the Closing Date in
accordance with a Term Loan Interest Rate Selection Notice delivered on the
Closing Date pursuant to Section 4.01(a) (or, if no Term Loan
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Interest Rate Selection Notice is so delivered on the Closing Date, thereafter
in accordance with Section 2.03).
2.02 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make Revolving Loans to one or
more of the Borrowers (subject to the PR Borrowing Limit) from time to time, on
any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Revolving Lender's Revolving
Credit Commitment; provided, however, that after giving effect to any Revolving
Borrowing, (i) the aggregate Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations shall not exceed the Aggregate Revolving Credit
Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any
Revolving Lender, plus such Revolving Lender's Applicable Revolving Percentage
of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender's
Applicable Revolving Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Revolving Lender's Revolving Credit Commitment, and
(iii) the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations owing by the PR Borrowers shall not exceed the applicable PR
Borrowing Limit. Within the limits of each Revolving Lender's Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.02, prepay under Section 2.06, and reborrow
under this Section 2.02. Revolving Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
2.03 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF REVOLVING LOANS;
CONVERSIONS AND CONTINUATIONS OF SEGMENTS OF THE TERM LOAN.
(a) Each Revolving Borrowing, each conversion of Revolving Loans or
Segments of the Term Loan from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon SEI's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of, or
conversion to, Base Rate Loans. Each telephonic notice by SEI pursuant to this
Section 2.03(a) must be confirmed promptly by delivery to the Administrative
Agent of a written Revolving Loan Notice or Term Loan Interest Rate Selection
Notice, appropriately completed and signed by a Responsible Officer of SEI
(unless such Revolving Loan Notice is being delivered by the Swing Line Lender
pursuant to Section 2.05(c) or by the Administrative Agent on behalf of the L/C
Issuer pursuant to Section 2.04(c)(i)); provided that the lack of such prompt
confirmation shall not affect the conclusiveness or binding effect of such
telephonic notice. Each Borrowing of or conversion to Eurodollar Rate Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Revolving
Loan Notice (whether telephonic or written) and each Term Loan Interest Rate
Selection Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Revolving Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued,
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(iv) the Type of Loans to be borrowed or to which existing Loans are to be
converted, (v) if applicable, the duration of the Interest Period with respect
thereto and (vi) if applicable, the identity of the Borrower or Borrowers by
whom such Borrowing is to be made or existing Loan converted or continued. If
SEI fails to specify a Type of Revolving Loan in a Revolving Loan Notice or Type
of Segment in a Term Loan Interest Rate Selection Notice, or if SEI fails to
give a timely notice requesting a conversion or continuation, then the
applicable Revolving Loans and Segments of the Term Loan shall, subject to the
last sentence of this Section 2.03(a), be made as or converted to Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be effective as of
the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If SEI requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Revolving Loan Notice or
Term Loan Interest Rate Selection Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Revolving Loan Notice, the Administrative Agent
shall promptly notify each Revolving Lender of the amount of its Applicable
Revolving Percentage of the applicable Revolving Loans, and if no timely notice
of a conversion or continuation is provided by SEI, the Administrative Agent
shall notify each Revolving Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a
Revolving Borrowing, each Revolving Lender shall make the amount of its
Revolving Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent's Office not later than 1:00 p.m. on the
Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the Administrative Agent either
by (i) crediting the account of the applicable Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by SEI; provided, that if, on the date the
Revolving Loan Notice with respect to such Revolving Borrowing is given by SEI,
there are L/C Borrowings outstanding, then the proceeds of such Revolving
Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and second, to the applicable Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, (i) no Revolving Loan
may be requested as, converted into or continued as a Eurodollar Rate Loan
without the consent of the Required Revolving Lenders, and (ii) no Segment of
the Term Loan may be converted into or continued as a Eurodollar Rate Segment
without the consent of the Required Term Lenders.
(d) The Administrative Agent shall promptly notify SEI and the applicable
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify SEI and the Lenders
of any change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
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(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than twenty (20) Interest Periods in effect with respect to
Loans; provided that, in the event the Aggregate Commitments are increased by at
least $100,000,000 pursuant to Section 2.16 then the number of Interest Periods
in effect with respect to the Loans permitted under this subsection shall be
increased to thirty (30).
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrowers, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the Revolving Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrowers
and any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (w) the aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations shall not exceed the Aggregate Revolving Credit Commitments,
(x) the aggregate Outstanding Amount of the Revolving Loans of any
Revolving Lender, plus such Revolving Lender's Applicable Revolving
Percentage of the Outstanding Amount of all L/C Obligations, plus such
Revolving Lender's Applicable Revolving Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Revolving Lender's
Revolving Credit Commitment, (y) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit, and (z) the
aggregate Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations of the PR Borrowers does not exceed the PR Borrowing Limit for
the Revolving Credit Facility. Each request by SEI, whether for itself or
any other Borrower, for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrowers that the L/C
Credit Extension so requested complies with the conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, each Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrowers may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon
and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance, unless the
Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Lenders have approved such expiry date.
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(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $500,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Revolving Lender's obligations to fund
under Section 2.04(c) exists or any Revolving Lender is at such time
a Defaulting Lender hereunder, unless the L/C Issuer has entered
into satisfactory arrangements with the Borrowers or such Revolving
Lender to eliminate the L/C Issuer's risk with respect to such
Revolving Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders
with respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits
and immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer
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Documents pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of SEI, whether on behalf of itself or any other
Borrower, delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of SEI. Such Letter of
Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days
(or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may
require. Additionally, SEI, on behalf of itself or any other Borrower, as
the case may be, shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from SEI, on behalf of itself or any other Borrower,
as the case may be, and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless the L/C Issuer has
received written notice from any Revolving Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of the applicable Borrower or enter into the applicable amendment,
as the case may be, in each case in accordance with the L/C Issuer's usual
and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a
risk participation in such Letter of Credit in an amount
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equal to the product of such Revolving Lender's Applicable Revolving
Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to SEI and
the Administrative Agent a true and complete copy of such Letter of Credit
or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify SEI, on behalf of itself or any other applicable Borrower, and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrowers shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If
the Borrowers fail to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Lender of the
Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Revolving Lender's Applicable Revolving
Percentage thereof. In such event, SEI, on behalf of itself or any other
applicable Borrower, shall be deemed to have requested a Revolving
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.03 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the
Aggregate Revolving Credit Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Revolving Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.04(c)(i) may be given by telephone if immediately confirmed
in writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Revolving Percentage of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.04(c)(iii), each Revolving Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to SEI,
on behalf of itself or any other applicable Borrower, in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Base Rate Revolving Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, SEI or the other applicable Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear
interest at the
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Default Rate. In such event, each Revolving Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.04(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Revolving
Lender in satisfaction of its participation obligation under this Section
2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.04(c) to reimburse the L/C Issuer for
any amount drawn under any Letter of Credit, interest in respect of such
Revolving Lender's Applicable Revolving Percentage of such amount shall be
solely for the account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Lender may have against the L/C Issuer, SEI or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Revolving Lender's
obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02 (other than delivery
by SEI of a Revolving Loan Notice). No such making of an L/C Advance shall
relieve or otherwise impair the obligation of SEI or any other applicable
Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), the
L/C Issuer shall be entitled to recover from such Revolving Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate
per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation. A certificate of the L/C Issuer submitted to any
Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Lender such Revolving
Lender's L/C Advance in respect of such payment in accordance with Section
2.04(c), if the Administrative Agent receives for the account of the L/C
Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from SEI, any other applicable Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
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Revolving Lender its Applicable Revolving Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Lender's L/C Advance was
outstanding) in the same funds as those received by the Administrative
Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Revolving Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Revolving
Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned
by such Revolving Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Revolving Lenders
under this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that any Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
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(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Borrower or any Subsidiary.
SEI, on behalf of itself or any other applicable Borrower, shall promptly
examine a copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance with SEI's
instructions or other irregularity, SEI will immediately notify the L/C Issuer.
The Borrowers shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Revolving Lender and the Borrowers agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
to any Revolving Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrowers
hereby assume all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude any Borrower
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrowers may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrowers, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrowers which the Borrowers prove were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for 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, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrowers shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections
46
2.06 and 8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.04, Section 2.06 and
Section 8.02(c), "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Revolving Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Revolving Lenders). Derivatives of such term have
corresponding meanings. The Borrowers hereby grant to the Administrative Agent,
for the benefit of the L/C Issuer and the Revolving Lenders, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and SEI when a Letter of Credit is issued, the rules of the ISP shall
apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its Applicable
Revolving Percentage a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.08. Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the last Business Day of each fiscal quarter
of SEI, commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Revolving Lenders,
while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrowers shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit and on a quarterly basis in arrears, and due and
payable on the last Business Day of each fiscal quarter of SEI, commencing with
the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.08. In addition, the Borrowers shall pay directly to the L/C Issuer for its
own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
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2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Revolving Lenders set forth in this Section 2.05, to make loans (each such loan,
a "Swing Line Loan") to the Borrowers (subject to the PR Borrowing Limit) from
time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Revolving Percentage of the Outstanding Amount of Revolving
Loans and L/C Obligations of the Revolving Lender acting as Swing Line Lender,
may exceed the amount of such Revolving Lender's Revolving Credit Commitment;
provided, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, (ii) the aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
shall not exceed the Aggregate Revolving Credit Commitments, (iii) the aggregate
Outstanding Amount of the Revolving Loans of any Revolving Lender other than the
Swing Line Lender, plus such Revolving Lender's Applicable Revolving Percentage
of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender's
Applicable Revolving Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Revolving Lender's Revolving Credit Commitment, and
(iv) the Outstanding Amount of Revolving Loans and Swing Line Loans owing by the
PR Borrowers shall not exceed the applicable PR Borrowing Limit; and provided,
further, that no Borrower shall use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.05, prepay under Section 2.06, and reborrow under this Section
2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Revolving Lender's Applicable Revolving Percentage times the
amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
SEI's irrevocable notice to the Swing Line Lender and the Administrative Agent,
which may be given by telephone. Each such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $100,000, (ii) the requested borrowing date, which shall
be a Business Day, and (iii) the Borrower to whom such Swing Line Loan is to be
made (subject to the applicable PR Borrowing Limit). Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of SEI. Promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice and,
if not, the Swing Line Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.05(a), or (B) that one or more of the
applicable conditions specified in
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Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the applicable Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the applicable Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Revolving Loan in an amount equal to
such Revolving Lender's Applicable Revolving Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Revolving Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.03,
without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion
of the Aggregate Revolving Credit Commitments, the PR Borrowing Limit and
the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the applicable Borrower with a copy of the applicable Revolving
Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount equal to its Applicable
Revolving Percentage of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent's Office
not later than 1:00 p.m. on the day specified in such Revolving Loan
Notice, whereupon, subject to Section 2.05(c)(ii), each Revolving Lender
that so makes funds available shall be deemed to have made a Base Rate
Revolving Loan to the applicable Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Revolving Borrowing in accordance with Section 2.05(c)(i), the
request for Base Rate Revolving Loans submitted by the Swing Line Lender
as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Revolving Lenders fund its risk participation in
the relevant Swing Line Loan and each Revolving Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.05(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.05(c) by the time specified in Section 2.05(c)(i), the
Swing Line Lender shall be entitled to recover from such Revolving Lender
(acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation. A certificate of the Swing Line
Lender submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
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(iv) Each Revolving Lender's obligation to make Revolving Loans or
to purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.05(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Revolving Lender may have
against the Swing Line Lender, a Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Revolving Lender's obligation
to make Revolving Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02 and the PR Borrowing Limit. No such
funding of risk participations shall relieve or otherwise impair the
obligation of the Borrowers to repay Swing Line Loans, together with
interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded
a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Revolving Lender its Applicable Revolving
Percentage of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Revolving Lender shall pay to the Swing
Line Lender its Applicable Revolving Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender. The obligations of the Revolving
Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the applicable Borrowers for interest on the Swing
Line Loans. Until each Revolving Lender funds its Base Rate Revolving Loan or
risk participation pursuant to this Section 2.05 to refinance such Revolving
Lender's Applicable Revolving Percentage of any Swing Line Loan, interest in
respect of such Applicable Revolving Percentage shall be solely for the account
of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
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2.06 PREPAYMENTS.
(a) In addition to the required payments of principal of the Revolving
Loans set forth in Section 2.07, each Borrower may, upon notice by SEI to the
Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (A) two Business Days prior to any date of prepayment of Eurodollar
Rate Loans and (B) on the date of prepayment of Base Rate Revolving Loans; (ii)
any prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Revolving Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case,
if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Revolving Loans to be prepaid. The Administrative Agent will promptly notify
each Revolving Lender of its receipt of each such notice, and of the amount of
such Revolving Lender's Applicable Revolving Percentage of such prepayment. If
such notice is given by SEI on behalf of itself or another Borrower, the
applicable Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the Revolving
Loans of the Revolving Lenders in accordance with their respective Applicable
Revolving Percentages.
(b) In addition to the required payments of principal of the Term Loan set
forth in Sections 2.09(c) and 2.07, each Borrower may, upon irrevocable notice
by SEI to the Administrative Agent, voluntarily prepay the Term Loan in whole or
in part from time to time on any Business Day, without penalty or premium;
provided that (i) such notice must be received by the Administrative Agent not
later than 12:00 Noon (A) two Business Days prior to any date of prepayment of
Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate Loans,
(ii) any prepayment of the Term Loan shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or in the entire
remaining principal balance of the Term Loan), and (iii) any such prepayment
will be applied among the Term Loan Lenders in accordance with their respective
Applicable Term Percentages. Each such notice shall specify the date and amount
of such prepayment and the Type(s) of Segment to be prepaid. The Responsible
Officer of SEI shall provide the Administrative Agent written confirmation of
each such telephonic notice but failure to provide such confirmation shall not
affect the validity of such telephonic notice. The Administrative Agent will
promptly notify each Term Lender of its receipt of each such notice, and such
Term Lender's pro rata share of such prepayment (calculated in accordance with
the first sentence of this subsection (b)). If such notice is given by SEI, the
applicable Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. All prepayments of principal under this Section 2.06(b) shall be
applied (x) pro rata across the quarterly installments of principal of the Term
Loan due in the last year of the Term Loan pursuant to Section 2.09(c) until
such time as the amount of the Term Loan due in the last year equals the amount
due in the prior six years pursuant to Section 2.09(c) as a result of
prepayments under this Section 2.06(b) and under
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Section 2.07, and (y) thereafter to installments of principal of the Term Loan
in inverse order of maturity pursuant to Section 2.09(c). Within each maturity,
SEI may determine the Borrower or Borrowers whose Outstanding Amount of the Term
Loan shall be prepaid in connection with any prepayment of principal under this
Section 2.06(b).
(c) Each Borrower may, upon notice by SEI to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by SEI, the applicable Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein.
(d) If for any reason the Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations at any time exceeds the Aggregate Revolving
Credit Commitments then in effect, the Borrowers shall immediately prepay
Revolving Loans and/or Swing Line Loans, and/or Cash Collateralize the L/C
Obligations, as SEI shall select, in an aggregate amount equal to such excess;
provided, however, that SEI shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.06(d) unless after the prepayment in full
of the Revolving Loans and Swing Line Loans the Outstanding Amount of all L/C
Obligations at any time exceeds the Aggregate Revolving Credit Commitments then
in effect.
2.07 MANDATORY PREPAYMENTS.
(a) Sources. In addition to any required and optional payments of
principal of the Term Loan Facility and the Revolving Credit Facility otherwise
set forth in Sections 2.06 and 2.09, the following required prepayments, each
such payment to be made to the Administrative Agent for the ratable benefit of
the applicable Lenders, shall be made as and within the time period specified
below:
(i) in the event that immediately prior to any private or public
offering of equity securities of SEI or any Subsidiary (other than
securities issued to SEI or another Subsidiary, but including without
limitation any security not constituting Indebtedness exchangeable,
exercisable or convertible for or into equity securities) the Consolidated
Leverage Ratio is greater than or equal to 3.00 to 1.00, a prepayment of
Loans under this Agreement shall be made from the cash proceeds of such
issuance in an amount equal to the lesser of (A) fifty percent (50%) of
the Net Proceeds of such issuance, or (B) the amount of the Net Proceeds
of such issuance necessary so that the Consolidated Leverage Ratio, after
giving effect to such prepayment of Loans, shall be less than 3.00 to
1.00;
(ii) a prepayment of Loans under this Agreement shall be made from
the cash proceeds of each private or public offering or incurrence of
Indebtedness of SEI or any Subsidiary (other than the Permitted
Indebtedness), to the extent such Indebtedness is permitted with the
consent of the Required Lenders, in an amount equal to one-hundred percent
(100%) of the Net Proceeds of each such issuance or incurrence of
Indebtedness; and
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(iii) after the aggregate fair market value of all Asset
Dispositions that would otherwise give rise to a prepayment under this
Section 2.07(a)(iii) exceeds $25,000,000 in the then-current fiscal year
of SEI, a prepayment shall be made from the cash proceeds of each Asset
Disposition by SEI or any of its Subsidiaries permitted under Section
7.06(f), or otherwise consented to by the Required Lenders, in an amount
equal to one-hundred percent (100%) of the Net Proceeds of such Asset
Disposition; provided that for purposes of this Section 2.07(a)(iii), the
Net Proceeds of any Asset Disposition shall be measured, and the
associated prepayment made within 10 Business Days thereafter as provided
in subsection (c) below, at a time after the consummation of such Asset
Disposition selected by SEI but not later than 350 days after such
consummation.
(b) Application of Proceeds.
(i) The Net Proceeds described in Section 2.07(a) shall be applied
(i) first, to repay the Outstanding Amount of Revolving Loans, without
reduction of the Revolving Credit Commitments, until the Outstanding
Amount of Revolving Loans is $0, and (ii) thereafter, to repay the
Outstanding Amount of the Term Loan; provided that in the event any
mandatory prepayment, or any portion thereof, is waived in accordance with
the terms of this Agreement by the applicable Lenders with respect to the
Revolving Credit Facility, such waived amount shall be applied to the
Outstanding Amount of the Term Loan; provided, further, that any portion
of any prepayment pursuant to this Section 2.07(b) that would otherwise
reduce Revolving Loans owing by the PR Borrowers may be designated by SEI
in the notice of such prepayment delivered to the Administrative Agent in
accordance with Section 2.07(c) below to be applied to first to repay any
Outstanding Amount of the Term Loan and then to the Revolving Loans owing
by the PR Borrowers, in which case such portion shall be so applied first
to the Term Loan in accordance with Section 2.07(b)(ii) and then to the
Revolving Loans owing by the PR Borrowers.
(ii) All prepayments of principal of the Term Loan to be made under
this Section 2.07 shall be applied (x) pro rata across the quarterly
installments of principal of the Term Loan due in the last year of the
Term Loan pursuant to Section 2.09(c) until such time as the amount of the
Term Loan due in the last year equals the amount due in the prior six
years pursuant to Section 2.09(c) as a result of prepayments under Section
2.06(b) and under this Section 2.07, and (y) thereafter to installments of
principal of the Term Loan in inverse order of maturity pursuant to
Section 2.09(c). Within each maturity, SEI may determine the Borrower or
Borrowers whose Outstanding Amount of the Term Loan shall be prepaid in
connection with any prepayment of principal under this Section 2.07.
(c) Timing and Notice. Each prepayment will be made as set forth in this
Section 2.07 within ten (10) Business Days of receipt of any Net Proceeds set
forth in Section 2.07(a)(i) or (ii) whether such receipt is partial or entire,
and within ten (10) Business Days of the date of determination of the Net
Proceeds by SEI under Section 2.07(a)(iii) (such date of determination not to be
later than the date that is 350 days after the consummation of the relevant
Asset Disposition), in each case without regard to any contingencies, earn-outs
or future payments, and in each case upon not less than two (2) Business Days'
irrevocable written notice to the
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Administrative Agent, and shall include a certificate of a Responsible Officer
of SEI setting forth in reasonable detail the calculations utilized in computing
the amount of such prepayment. Notwithstanding the ten (10) Business Day
provision in the immediately preceding sentence, if the amount of such mandatory
prepayment is in excess of the principal amount of all Base Rate Loans
outstanding under the applicable facility, SEI may make the payments provided
hereunder on the last day of each Interest Period for Eurodollar Rate Loans so
long as all amounts required to be paid under this Section 2.07 have been
received not later than three months after the date that they would otherwise
have been due pursuant to the immediately preceding sentence, and the schedule
for such payments will be provided by SEI in the notice required under such
preceding sentence. The Administrative Agent shall give each applicable Lender,
within one (1) Business Day after receipt of notice from SEI, telefacsimile
notice of each notice of prepayment described in this Section 2.07(c) and the
timing thereof.
2.08 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrowers may, upon
notice by SEI to the Administrative Agent, terminate the Aggregate Revolving
Credit Commitments, or from time to time permanently reduce the Aggregate
Revolving Credit Commitments (including, as determined by SEI, the PR Borrowing
Limit); provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrowers shall not terminate or reduce the Aggregate
Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the then aggregate Outstanding Amount of all
Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Aggregate
Revolving Credit Commitments, and (iv) if, after giving effect to any reduction
of the Aggregate Revolving Credit Commitments, the Letter of Credit Sublimit,
the Swing Line Sublimit or the PR Borrowing Limit (with respect to the Revolving
Credit Facility) exceeds the amount of the Aggregate Revolving Credit
Commitment, such sublimit or PR Borrowing Limit shall be automatically reduced
by the amount of such excess. The Administrative Agent will promptly notify the
Revolving Lenders of any such notice of termination or reduction of the
Aggregate Revolving Credit Commitments. Any reduction of the Aggregate Revolving
Credit Commitments shall be applied to the Revolving Credit Commitment of each
Revolving Lender according to its Applicable Revolving Percentage. All fees
accrued until the effective date of any termination of the Aggregate Revolving
Credit Commitments shall be paid on the effective date of such termination.
2.09 REPAYMENT OF LOANS.
(a) The Borrowers shall repay to the Revolving Lenders on the Revolving
Credit Maturity Date the aggregate principal amount of Revolving Loans
outstanding on such date.
(b) The Borrowers shall repay each Swing Line Loan on the earlier to occur
of (i) the date that is 10 Business Days after the advance of such Swing Line
Loan and (ii) the Revolving Credit Maturity Date.
(c) The Borrowers shall repay the principal amount of the Term Loan in
consecutive quarterly installments equal to $250,000 per fiscal quarter of SEI
through and including the fiscal quarter ending January 31, 2011, and then equal
to $23,500,000 per fiscal quarter of SEI
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thereafter, subject to (i) adjustments for prepayments made pursuant to, and as
provided in, Sections 2.06 and 2.07, and (ii) adjustment for any increase in the
Term Loan Facility pursuant to Section 2.16 to provide for amortization of the
increased Term Loan at substantially the same rate as provided above (that is,
1% of the aggregate principal amount per year through the sixth loan year, and
94% of the aggregate principal amount due on the last day of the three fiscal
quarters of SEI ending April 30, July 31 and October 31, 2011, and on the
scheduled Term Loan Maturity Date), with the precise amounts to be reasonably
determined by the Administrative Agent at the time of any such increase of the
Term Loan; provided that all Outstanding Amounts of the Term Loan will be repaid
on the Term Loan Maturity Date. At the time of each such scheduled payment, SEI
may determine the Borrower or Borrowers whose Outstanding Amount of the Term
Loan shall be repaid at such time.
2.10 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by any
Borrower under any Loan Document is not paid when due (after giving effect
to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required Lenders,
such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrowers shall pay interest on the principal amount
of all outstanding Obligations hereunder at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after
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judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
2.11 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.04:
(a) Commitment Fee. SEI shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Revolving
Percentage, a commitment fee equal to the Applicable Rate times the actual daily
amount by which the Aggregate Revolving Credit Commitments exceed the sum of (i)
the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each fiscal quarter of SEI, commencing with
the first such date to occur after the Closing Date, and on the Revolving Credit
Maturity Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect.
Notwithstanding the foregoing, so long as any Revolving Lender fails to make
available any portion of its Revolving Credit Commitment when requested, such
Revolving Lender shall not be entitled to receive payment of its pro rata share
of such fee until such Revolving Lender shall make available such portion.
(b) Other Fees. (i) SEI shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) SEI shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.12 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.14(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
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2.13 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Revolving Note, a
Term Loan Note and/or a Swing Line Note, as applicable, each of which shall
evidence such Lender's applicable Loans in addition to such accounts or records.
Each Lender may attach schedules to its Note(s) and endorse thereon the date,
Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Revolving Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Revolving Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Revolving Lender
in respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.14 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrowers shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Revolving Percentage or Applicable Term
Percentage (or other applicable share as provided herein), as applicable, of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by any
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent
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such Lender's share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance
with Section 2.03 and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable
Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the applicable
Borrower to but excluding the date of payment to the Administrative Agent,
at (A) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation and
(B) in the case of a payment to be made by a Borrower, the interest rate
applicable to Base Rate Loans. If the applicable Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
applicable Borrower the amount of such interest paid by such Borrower for
such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such
Lender's Loan included in such Borrowing. Any payment by any Borrower
shall be without prejudice to any claim such Borrower may have against a
Lender that shall have failed to make such payment to the Administrative
Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from SEI or
another Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders, or any of them, or
the L/C Issuer hereunder that the applicable Borrower will not make such
payment, the Administrative Agent may assume that the applicable Borrower
has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the applicable Lenders or the
L/C Issuer, as the case may be, the amount due. In such event, if the
applicable Borrower has not in fact made such payment, then each of the
applicable Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the applicable Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the
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Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) (i) Obligations of Lenders Several. The obligations of the Revolving
Lenders hereunder to make Revolving Loans and to fund participations in
Letters of Credit and Swing Line Loans are several and not joint. The
failure of any Revolving Lender to make any Revolving Loan or to fund any
such participation on any date required hereunder shall not relieve any
other Revolving Lender of its corresponding obligation to do so on such
date, and no Revolving Lender shall be responsible for the failure of any
other Revolving Lender to so make its Revolving Loan or purchase its
participation.
(ii) The obligations of the Term Lenders to fund each of their
respective Applicable Term Percentage of the Term Loan Facility are
several and not joint. The failure of any Term Lender to fund its
Applicable Term Percentage of the Term Loan Facility on the Closing Date
(subject to adjustments as provided in Section 1.01 for amount outstanding
under the Existing Agreement) shall not relieve any other Term Lender of
its corresponding obligation to do so on the Closing Date, and no Term
Lender shall be responsible for the failure of any other Term Lender so to
fund its Applicable Term Percentage of the Term Loan Facility.
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.15 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Revolving Loans or the Term Loan made
by it, or the participations in L/C Obligations or in Swing Line Loans held by
it resulting in such Lender's receiving payment of a proportion of the aggregate
amount of such applicable Loans or participations and accrued interest thereon
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the
applicable Loans and subparticipations in L/C Obligations and Swing Line Loans
of the other Lenders of such Loans, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Revolving Lenders or Term Lenders, as applicable, ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
applicable Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by any Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the
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assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee
or participant, other than to SEI or any Subsidiary thereof (as to which
the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.16 INCREASE IN COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), SEI may on a
one-time basis, request an increase in the Aggregate Commitments (such term to
be deemed to include, for this purpose, the New Term Loan Facility (as defined
below) as if the amendment described in subsection (c)(ii) below had been
effectuated) by an amount not exceeding the Maximum Specified Additional Debt
Amount in effect at such time, which such increase may be composed of any or all
of an increase in the Term Loan Facility, an increase in the Revolving Credit
Commitments, and/or the creation of a new term loan tranche under this Agreement
(the "New Term Loan Facility"); provided that (i) the Aggregate Revolving Credit
Commitments, after giving effect to such increase, shall not exceed
$175,000,000, (ii) no such increase shall increase the Letter of Credit Sublimit
or the Swing Line Sublimit, and (iii) after giving effect to such increase, in
the event that any of the Senior Subordinated Notes remains outstanding, the
Aggregate Commitments (as if fully drawn) shall constitute "Permitted Debt" as
defined in Section 4.09 of the Senior Subordinated Indenture. At the time of
sending such notice, SEI (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).
(b) New and Increasing Lenders. The requested increase, at the option of
SEI, may be offered to existing Lenders (which offer the existing Lenders may
accept or reject) and, subject to the approval of the Administrative Agent and
the L/C Issuer (which approvals shall not be unreasonably withheld), additional
Eligible Assignees who may become Lenders pursuant to a joinder agreement in
form and substance satisfactory to the Administrative Agent and its counsel.
(c) New Term Loan Facility. In the event SEI elects to accomplish all or a
portion of the increase with the creation of a New Term Loan Facility:
(i) such New Term Loan Facility shall:
(A) have a maturity date not earlier than the Term Loan
Maturity Date;
(B) amortize, pursuant to Section 2.09, no more quickly than
the Term Loan Facility;
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(C) have an Applicable Rate agreed by SEI, the Administrative
Agent and the Lenders participating in the New Term Loan Facility;
(D) share in mandatory prepayments pursuant to Section 2.07
pro rata with the Term Loan Facility;
(E) include optional prepayments pursuant to Section 2.06 in a
manner substantially the same as the Term Loan Facility; and
(F) have substantially the same terms as the Term Loan
Facility hereunder and under the other Loan Documents;
(ii) an amendment to this Agreement and any applicable Loan
Documents shall be entered into by the Borrowers, the Guarantors (to the
extent necessary), the Administrative Agent and the Lenders to such New
Term Loan Facility to provide for the New Term Loan Facility in accordance
with the provisions set forth in subsection (c)(i) above; provided that no
further consent of Lenders to the Revolving Credit Facility and/or the
Term Loan Facility shall be required.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section 2.16, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify SEI and the Lenders of the final allocation of such increase and the
Increase Effective Date. Such Effective Date shall be the date set forth in the
amendment described in subsection (c)(ii) above in the event such an amendment
is required.
(e) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, SEI shall deliver to the Administrative Agent a certificate of
each Borrower and each other Loan Party dated as of the Increase Effective Date
(in sufficient copies for each Lender, including any new Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such increase
(which such resolutions authorizing such increase may be dated on or before the
date of this Agreement, so long as such resolutions remain in full force and
effect without revocation thereof, and the applicable Loan Party certifies
thereto), and (ii) in the case of each Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and correct on and
as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.16, the representations and warranties contained in
subsection (a) of Section 5.06 shall be deemed to refer to the most recent
statements furnished pursuant to clause (a)(i) and (b)(i) of Section 6.01, and
(B) no Default exists or would occur as a result of such increase. SEI shall
also deliver a Compliance Certificate demonstrating pro forma compliance with
the financial covenants set forth in Section 7.01 after giving effect to such
increase. The Borrowers shall prepay any Loans outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Loans ratable with any
revised Applicable Revolving Percentages or Applicable
61
Term Percentages arising from any nonratable increase in the Aggregate
Commitments under this Section 2.16.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.15 or 10.01 to the contrary.
2.17 JOINT AND SEVERAL BORROWERS.
(a) Notwithstanding any other provision of this Agreement, except as
hereinafter provided, each Borrower shall be jointly and severally liable as
primary obligor and not merely as surety for repayment of all Obligations of any
PR Borrower arising under the Loan Documents. Such joint and several liability
shall apply to each Borrower regardless of whether (i) any Loan was only
requested on behalf of or made to another Borrower or the proceeds of any Loan
were used only by another Borrower, (ii) any interest rate election was made
only on behalf of another Borrower, or (iii) any indemnification obligation or
any other obligation arose only as a result of the actions of another Borrower;
provided the liability of each of the PR Borrowers under this Agreement, the
Notes and the other Loan Documents shall be limited to the Obligations of the PR
Borrowers. Each Borrower shall retain any right of contribution arising under
applicable law against the other Borrowers as the result of the satisfaction of
any Obligations; provided, such rights are hereby fully subordinated in all
respects to the payment in full of the Obligations, no Borrower shall assert
such right of contribution against any other Borrower until the Facility
Termination Date, and each Borrower shall hold in trust and separate from its
other property any funds or other property received on account of any such right
of contribution and pay the same over to the Administrative Agent for
application to the Obligations until payment in full of the Obligations.
(b) Without limiting the foregoing provisions of this Section 2.17, SEI
hereby irrevocably, absolutely and unconditionally guarantees the full and
punctual payment or performance when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of each of the PR Borrowers, whether owing to the Administrative
Agent, the Collateral Agent or any Lender. This guarantee constitutes a guaranty
of payment and not of collection.
(c) Without limiting the foregoing provisions of this Section 2.17, each
PR Borrower hereby irrevocably, absolutely and unconditionally guarantees the
full and punctual payment or performance when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of the other PR Borrower, whether owing to the Administrative Agent,
the Collateral Agent or any Lender. This guarantee constitutes a guaranty of
payment and not of collection.
(d) It is the intention of the parties that with respect to each Borrower,
its obligations under Sections 2.17(a), (b) and (c) shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, any Note, or any other Loan Document as to any other Borrowers;
62
(ii) the failure of the Administrative Agent, the Collateral Agent
or any Lender:
(A) to enforce any right or remedy against any other Borrower
or any other Person under the provisions of this Agreement, any
Note, any other Loan Document or otherwise, or
(B) to exercise any right or remedy against any guarantor of,
or Collateral securing, any Obligations;
(iii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other extension,
compromise or renewal of any Obligations with respect to any other
Borrower;
(iv) any reduction, limitation, impairment or termination of any
Obligations with respect to any other Borrower or any other Person for any
reason including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Borrower hereby waives
any right to or claim of) any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise or unenforceability of, or any
other event or occurrence affecting, any Obligations with respect to any
other Borrower;
(v) any addition, exchange, release, surrender or nonperfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any guaranty, held by the Administrative
Agent, the Collateral Agent, any Lender or any holder of any Note securing
any of the Obligations; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any other
Borrower, any surety or any guarantor.
(e) Each Borrower agrees that its joint and several liability hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must be restored by the Administrative Agent, the Collateral Agent, any Lender
or any holder of any Note, upon the insolvency, bankruptcy or reorganization of
any other Borrower as though such payment had not been made.
(f) Each Borrower hereby expressly waives: (i) notice of the Lenders'
acceptance of this Agreement; (ii) notice of the existence or creation or
non-payment of all or any of the Obligations; (iii) notice of the release of any
Borrower; (iv) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever other than notices expressly provided for in this Agreement
or by applicable law; and (v) all diligence in collection or protection of or
realization upon the Obligations or any thereof, any obligation hereunder, or
any security for or guaranty of any of the foregoing.
(g) No delay on the part of the Administrative Agent, the Collateral Agent
or any Lender in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by the Administrative Agent, the
Collateral Agent or any Lender of any right or
63
remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. No action of the Administrative Agent, the Collateral
Agent or any Lender permitted hereunder shall in any way affect or impair any of
their rights or any of their obligations to any of the Borrowers under this
Agreement (except as otherwise waived, modified, or amended).
(h) Until this Agreement is terminated in accordance with the terms
hereof, SEI hereby unconditionally subordinates all present and future debts,
liabilities or obligations now or hereafter owing to SEI (i) of any of the PR
Borrowers, to the payment in full of any Obligations of the PR Borrowers, (ii)
of each Guarantor, to the payment in full of the obligations of each such
Guarantor under this Agreement or any of the Loan Documents, and (iii) of each
other Person now or hereafter constituting a Loan Party, to the payment in full
of the obligations of such Loan Party under this Agreement or any of the Loan
Documents. All amounts due under such subordinated debts, liabilities or
obligations shall, upon the occurrence and during the continuance of an Event of
Default, be collected and, upon the request of the Administrative Agent, be paid
over forthwith to the Administrative Agent for the benefit of the Administrative
Agent, the Collateral Agent and the Lenders on account of the Obligations or
such other obligations, as applicable, and, after such request and pending such
payment, shall be held by SEI as agent and bailee of the Administrative Agent,
the Collateral Agent and the Lenders separate and apart from all other funds,
property and accounts of SEI.
2.18 SEI AS BORROWING AGENT. Because the operations and business
activities of the Borrowers are highly integrated and interdependent, at any
particular time it is in the mutual best interest of the Administrative Agent,
the Lenders and the Borrowers for SEI, through one or more of its Responsible
Officers, to deliver all Requests for Credit Extension, all Term Loan Interest
Rate Selection Notices and all other such notices, and to take all other action
of a Responsible Officer in this Agreement or in any other Loan Document,
whether on behalf of SEI or any other Borrower, and to determine which of the
Borrowers will directly receive the proceeds of a Loan (subject to the PR
Borrowing Limit). Each of the Borrowers hereby directs the Administrative Agent
to disburse the proceeds of each Loan as directed by SEI through a Responsible
Officer (such directions to be subject to approval of the Administrative Agent
in its discretion), and such distribution will, in all circumstances, be deemed
to be made to the Borrower to which such proceeds are directed (subject to the
PR Borrowing Limit). Each Borrower hereby irrevocably designates, appoints,
authorizes and directs SEI (including each Responsible Officer of SEI) to act on
behalf of such Borrower for the purposes set forth in this Section 2.18, and to
act on behalf of such Borrower for purposes of giving notice to the
Administrative Agent of requests for Borrowings, conversions, continuations and
for otherwise giving and receiving notices and certifications under this
Agreement or any other Loan Document and otherwise for taking all other action
contemplated to be taken by SEI (including each Responsible Officer) hereunder
or under any other Loan Document. The Administrative Agent is entitled to rely
and act on the instructions of SEI, by and through any Responsible Officer, on
behalf of each Borrower. Each Borrower covenants and agrees to assume liability
for and to protect, indemnify and hold harmless the Administrative Agent, the
Collateral Agent, the Lenders, the L/C Issuer and Swing Line Lender from any and
all liabilities, obligations, damages, penalties, claims, causes of action,
costs, charges and expenses (including without limitation, reasonable attorneys'
fees), which may be incurred by, imposed or asserted against the Administrative
Agent, the Collateral Agent, any Lender, the L/C Issuer or the Swing Line
Lender, howsoever arising or incurred because of, out of or in connection with
the disbursements
64
of Loans and Credit Extensions in accordance with this Section 2.18; provided,
that the liability of the Borrowers pursuant to this indemnity shall not extend
to any liability, obligation, damage, penalty, claim, cause of action, cost,
charge or expense caused by or arising out of the gross negligence or willful
misconduct of the Administrative Agent, the Collateral Agent, any Lender, the
L/C Issuer or the Swing Line Lender. SEI shall maintain detailed accounting and
records of all disbursements and payments made to each Borrower with respect to
proceeds of Loans. Not in any way in limitation of any other provisions set
forth herein, such books and records may be reviewed and copied by the
Administrative Agent at SEI's expense at reasonable intervals and upon
reasonable notice given by the Administrative Agent to SEI.
2.19 REMOVAL OF PR BORROWERS. At any time and provided that no Default
shall have occurred and be continuing, upon at least two (2) Business Days'
written notice from the Borrowers (effective upon receipt) to the Administrative
Agent prior to 11:00 A.M., which notice shall be irrevocable and shall be in the
form of Exhibit G hereto, SEI and the PR Borrowers may elect to remove the PR
Borrowers as Borrowers under the Revolving Credit Facility (including the Swing
Line Facility) or the Term Loan Facility, or both, so long as (a) such removal
is of both PR Borrowers simultaneously with respect to the Revolving Credit
Facility (including the Swing Line Facility) or the Term Loan Facility, as
applicable and (b) SEI shall expressly acknowledge and assume all Obligations of
the PR Borrowers outstanding at such time as primary obligor, and shall reaffirm
its obligation for all Obligations. From and after the effective date of such
election, as specified in such notice in accordance with the terms of this
Section 2.19, (i) the PR Borrowers shall have no further rights or privileges as
Borrowers hereunder, (ii) the PR Borrowers shall have no further liability for
the payment of any amounts required to be paid by the PR Borrowers as borrowers
hereunder or under the Notes, (iii) each Responsible Officer shall without
further action serve solely as the representative of SEI for all purposes of the
Loan Documents, and (iv) all references in the Loan Documents to permitted,
required or prohibited conduct of the "Borrowers" or the "PR Borrowers" from and
after such effective date shall be deemed to refer solely to SEI; provided, that
no such termination of the PR Borrowers' status as Borrowers shall reduce or
impair any obligation or liability of the PR Borrowers arising as a result of
(x) any representation, warranty or certification made by or on behalf of either
of them prior to or on such effective date under or pursuant to any of the Loan
Documents, (y) any representation, warranty, acknowledgement or other
undertaking of either of them contained in the election notice described above,
or (z) any indemnification obligations under Section 2.18 or 10.04 or otherwise
arising from or relating to any conduct of the PR Borrowers prior to such
effective date, including the application of any proceeds of Loans.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
Obligation of the Borrowers hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if any Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions
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applicable to additional sums payable under this Section) the Administrative
Agent, the Collateral Agent, Lender or L/C Issuer, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable Borrower shall make such deductions and (iii) the
applicable Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, each Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, the Collateral Agent, each Lender and the L/C Issuer,
within 10 days after demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, the Collateral Agent, such Lender or the L/C Issuer, as
the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to SEI by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent or the Collateral Agent on
its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the applicable Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
SEI is resident for tax purposes, or any treaty to which such jurisdiction is a
party, with respect to payments hereunder or under any other Loan Document shall
deliver to SEI (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by SEI or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by SEI or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by SEI or the
Administrative Agent as will enable SEI or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of the foregoing, in the event that SEI is
resident for tax purposes in the United States, any Foreign Lender shall deliver
to SEI and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
request of SEI or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:
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(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of SEI within the meaning of section 881(c)(3)(B) of the
Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit SEI to
determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, the
Collateral Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with respect to which a Borrower
has paid additional amounts pursuant to this Section 3.01, it shall pay to the
applicable Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this
Section 3.01 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, the
Collateral Agent, such Lender or the L/C Issuer, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund), provided that such Borrower, upon the request of
the Administrative Agent, the Collateral Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to such Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, the Collateral Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, the Collateral Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, the
Collateral Agent, any Lender or the L/C Issuer to make available its tax returns
(or any other information relating to its taxes that it deems confidential) to
any Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to SEI through the Administrative Agent, any obligation of such Lender to make
or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and SEI that the circumstances giving rise to such
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determination no longer exist. Upon receipt of such notice, each Borrower shall,
upon demand to SEI from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the applicable
Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender represents and warrants that as of the Closing Date there is no
basis for such Lender to invoke the provisions of the this Section 3.02.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine after
the Closing Date that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify SEI and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, any Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer
in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, each applicable
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time each
applicable Borrower will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender's or the L/C Issuer's holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to SEI shall be conclusive
absent manifest error. Each applicable Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that no Borrower shall be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section 3.04 for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies SEI of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrowers shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan
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equal to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrowers shall have received at least 10
days' prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, each Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by SEI on
behalf of such Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by a Borrower
pursuant to Section 10.13;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Each Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by any Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. SEI hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or
assignment.
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(b) Replacement of Lenders. If (i) any Lender (x) is subject to Section
3.02 and has not designated a different Lending Office for funding or booking
its Loans hereunder or assigned its rights and obligations hereunder to another
of its offices, branches or affiliates or otherwise eliminated the need for the
notice pursuant to Section 3.02 within 30 days of giving notice pursuant to
Section 3.02 or (y) requests compensation under Section 3.04, or (ii) if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
SEI may replace such Lender in accordance with Section 10.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IIIA.
SECURITY
3A.01 SECURITY. As security for the full and timely payment and
performance of all Obligations, SEI shall, and shall cause all other Loan
Parties to, on or before the Closing Date, do or cause to be done all things
necessary in the opinion of the Administrative Agent and the Collateral Agent,
and their counsel, to grant to the Collateral Agent or the Administrative Agent,
as applicable, for the benefit of the Collateral Agent, the Administrative Agent
and the Lenders a duly perfected first priority security interest in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer other than Permitted Liens. Without limiting the foregoing, and to the
extent not previously delivered under the Existing Agreement and its associated
loan documents, SEI and each Subsidiary having rights in any Subsidiary
Securities shall on the Closing Date deliver to the Collateral Agent, in form
and substance reasonably acceptable to the Collateral Agent, (A) a Pledge
Agreement which shall pledge to the Collateral Agent for the benefit of the
Collateral Agent, the Administrative Agent and the Lenders (i) 65% of the Voting
Securities of each Direct Foreign Subsidiary (or if SEI and its Subsidiaries
shall own less than 65%, then all of the Voting Securities owned by them) and
100% of the other Subsidiary Securities of such Direct Foreign Subsidiary, and
(ii) except with respect to those Subsidiaries set forth in Schedule 3A.01, all
of the Subsidiary Securities of all Domestic Subsidiaries and all Excluded
Subsidiaries, (B) if such Subsidiary Securities are in the form of certificated
securities, such certificated securities (including corrected certificates with
respect to any certificated securities delivered pursuant to the Existing
Agreement and its associated loan documents that require updating to accurately
reflect the appropriate information), together with undated stock powers or
other appropriate transfer documents endorsed in blank pertaining thereto, (C)
if such Subsidiary Securities do not constitute securities and the Subsidiary
has not elected to have such interests treated as securities under Article 8 of
the Uniform Commercial Code, a control agreement (containing the provisions
described in Section 6.19(d)) from the Registrar of such Subsidiary Securities
and (D) Uniform Commercial Code financing statements reflecting the Lien in
favor of the Collateral Agent on such Subsidiary Securities, each in form and
substance acceptable to the Collateral Agent, and shall take such further action
and deliver or cause to be delivered such further documents as required by the
Security Instruments or otherwise as the Collateral Agent may request to effect
the transactions contemplated by this Article IIIA. SEI shall pledge, and shall
cause each applicable Subsidiary to pledge, to the Collateral Agent for the
benefit of the Collateral Agent, the Administrative Agent and the
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Lenders (and as appropriate to reaffirm its prior pledge of) all of the Pledged
Interests of any Domestic Subsidiary and each Direct Foreign Subsidiary acquired
or created after the Closing Date (including any Subsidiary becoming a Domestic
Subsidiary or Direct Foreign Subsidiary) and to deliver to the Collateral Agent
all of the documents and instruments in connection therewith as are required
pursuant to the terms of Section 6.19 and of the Security Instruments. To the
extent any of the Subsidiaries set forth in Schedule 3A.01 shall at any time
prior to the Facility Termination Date be capable of being pledged, SEI will,
and will cause all applicable Subsidiaries to, deliver a Pledge Agreement or a
Pledge Agreement Supplement, as the case may be, pledging the Subsidiary
Securities of such Subsidiary.
3A.02 FURTHER ASSURANCES. At the request of the Administrative Agent or
the Collateral Agent, SEI will or will cause all other Loan Parties, as the case
may be, to execute, by its duly authorized officers, alone or with the
Collateral Agent, any certificate, instrument, financing statement, control
agreement, statement or document, or to procure any such certificate,
instrument, statement or document, or to take such other action (and pay all
connected costs) which the Collateral Agent or the Administrative Agent
reasonably deems necessary from time to time to create, continue or preserve the
liens and security interests in Collateral (and the perfection and priority
thereof) of the Collateral Agent contemplated hereby and by the other Loan
Documents and specifically including all Collateral acquired by SEI or any other
Loan Party after the Closing Date. The Collateral Agent is hereby irrevocably
authorized to execute and file or cause to be filed, with or if permitted by
applicable law without the signature of SEI or any Loan Party appearing thereon,
all Uniform Commercial Code financing statements reflecting SEI or any other
Loan Party as "debtor" and the Collateral Agent as "secured party", and
continuations thereof and amendments thereto, as the Collateral Agent reasonably
deems necessary or advisable to give effect to the transactions contemplated
hereby and by the other Loan Documents.
3A.03 INFORMATION REGARDING COLLATERAL. Each Borrower represents, warrants
and covenants that (i) the chief executive office of SEI and each other Person
providing Collateral pursuant to a Security Instrument (each, a "Grantor") at
the Closing Date is located at the address or addresses specified on Schedule
3A.03, and (ii) Schedule 3A.03 contains a true and complete list of (a) the
exact legal name, jurisdiction of formation, and address of each Grantor, (b)
the exact legal name, jurisdiction of formation, and each location of the chief
executive office of each Grantor, (c) each location in which goods constituting
Collateral are located, and (d) each trade name, trademark or other trade style
currently used by any Grantor. SEI shall not change, and shall not permit any
other Grantor to change, its name, jurisdiction of formation (whether by
reincorporation, merger or otherwise), the location of its chief executive
office or any location specified in clause (c) of the immediately preceding
sentence, or use or permit any other Grantor to use, any additional trade name,
trademark or other trade style, except upon giving written notice not more than
thirty (30) days thereafter to the Collateral Agent and the Administrative Agent
and taking or causing to be taken all such action at SEI's or such other
Grantor's expense as may be reasonably requested by the Collateral Agent to
perfect or maintain the perfection of the Lien of the Collateral Agent in
Collateral.
3A.04 RELEASE OF GUARANTORS, COLLATERAL AND PLEDGED INTERESTS. Upon, or
simultaneously with, the consummation of any sale or other Disposition of all or
substantially all of the assets or capital stock of any Guarantor or any Direct
Foreign Subsidiary (including by
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way of merger or consolidation) to a Person that is not (either before or after
giving effect to such transaction) a Loan Party, so long as such sale or
Disposition (and any related merger or consolidation) is otherwise permitted
pursuant to the terms of this Agreement and the other Loan Documents:
(a) any security interest of the Collateral Agent, the
Administrative Agent or any Lender in any Collateral so sold or Disposed
of shall be deemed released, without any further action by the Collateral
Agent, the Administrative Agent or any Lender;
(b) to the extent such sale or Disposition, or any portion thereof,
is of any Subsidiary Securities of any Guarantor or any Direct Foreign
Subsidiary, any security interest of the Collateral Agent, the
Administrative Agent or any Lender in any such Subsidiary Securities shall
be deemed released, without any further action by the Collateral Agent,
the Administrative Agent or any Lender;
(c) to the extent such sale or Disposition results in any Guarantor
no longer being a Domestic Subsidiary of SEI, the guaranty of such
Guarantor under any Guaranty shall be deemed released, without any further
action by the Collateral Agent, the Administrative Agent or any Lender;
and
(d) each of the Collateral Agent, the Administrative Agent or any
Lender will, at the sole expense of SEI, to the extent reasonably
requested by SEI, execute and deliver, or cause to be duly executed and
delivered, to SEI such instruments, documents and certificates, and do and
cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of SEI to carry out more effectively
the provisions and purposes of this Section 3A.04, provided that the
Collateral Agent shall not be obligated to take any action that may
adversely affect any interest in Collateral or any guaranty by any other
Guarantor except as may be otherwise expressly required by this Section
3A.04.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, the Consolidated
Amendment to Loan Documents, and any other Loan Document required to be
delivered with respect to the Guarantors, the Collateral or otherwise, in
each case sufficient in number for distribution to the Administrative
Agent, each Lender and SEI;
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(ii) a (x) Revolving Note executed by each Borrower in favor of each
Revolving Lender requesting a Revolving Note, (x) Term Note executed by
each Borrower in favor of each Term Lender requesting a Term Note, and (y)
a Swing Line Note executed by each Borrower in favor of Bank of America,
as the Swing Line Lender;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party, which such certificates may, to the extent agreed by the
Administrative Agent, reference such documents delivered in connection
with the Original Closing Date of the Existing Agreement and certifying to
their continuing status or any changes thereto;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party, other than any
Loan Party set forth on Schedule 4.01(a)(iv), is duly organized or formed,
and that each such Loan Party is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(v) the favorable written opinion or opinions with respect to the
Loan Documents and the transactions contemplated thereby of (A) special
counsel to SEI and any Loan Party organized under the laws of the United
States of America, any state or territory thereof (other than Puerto Rico)
or the District of Columbia, (B) special counsel to the PR Borrowers and
any PR Guarantor, and (C) special local counsel to one or more of the Loan
Parties in each jurisdiction listed on Schedule 4.01(a)(v), in each case
dated the Closing Date, addressed to the Administrative Agent and the
Lenders and satisfactory to the Administrative Agent;
(vi) a certificate of a Responsible Officer of SEI that (A) either
(x) attaches copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full
force and effect, or (y) states that no such consents, licenses or
approvals are so required, (B) certifies that the conditions specified in
Sections 4.02(a) and (b) have been satisfied, (C) certifies that there has
been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (D)
includes calculations demonstrating that the Aggregate Revolving Credit
Commitments as of the Closing Date, after giving effect to all
transactions to be consummated on or prior to such date, exceeds the
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations by not less than $50,000,000;
(vii) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect;
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(viii) evidence of the delivery of any Uniform Commercial Code
financing statements or amendments, sufficient in each case for filing in
all places required by applicable United States law to perfect the Liens
of the Collateral Agent or the Administrative Agent under the Security
Instruments as a first priority Lien (subject to Permitted Liens) as to
items of Collateral in which a security interest may be perfected by the
filing of financing statements, to the extent deemed necessary or
appropriate by the Administrative Agent or the Collateral Agent to
maintain the perfection in Collateral existing under the Existing
Agreement and related documents, or to perfect a security interest in any
new or additional Collateral provided in connection with this Agreement
and the Loan Documents;
(ix) such other documents and/or evidence of other actions as may be
necessary under applicable United States law to perfect, or maintain the
perfection of, the Liens of the Collateral Agent under the Security
Instruments as a first priority Lien (subject to Permitted Liens) in and
to such other Collateral as the Collateral Agent or the Administrative
Agent may require, including without limitation:
(A) the delivery by SEI and each Subsidiary owning any Pledged
Interests of all stock certificates evidencing Pledged Interests not
already in possession of the Collateral Agent, or that are necessary
to correct the certificate in the possession of the Collateral Agent
evidencing such Pledged Interest (whether the identity of the record
owner or issuer, the number or type of shares, or otherwise),
accompanied in each case by duly executed stock powers (or other
appropriate transfer documents) in blank affixed thereto; and
(B) to the extent not previously delivered to the Collateral
Agent pursuant to the Existing Agreement, the delivery by SEI and
each applicable Subsidiary of certificates of the Registrar of each
partnership or limited liability company Domestic Subsidiary
evidencing the due registration on the registration books of such
Person of the Lien in favor of the Collateral Agent conferred under
the Security Instruments;
(x) Uniform Commercial Code search results showing only Permitted
Liens and such other Liens as are acceptable to the Lenders; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have
paid all fees, charges and disbursements of counsel to the Administrative Agent
to the extent invoiced prior to or on the Closing Date (provided that after the
Closing Date, the Borrowers acknowledge that there will be a final settling of
accounts between the Borrowers and the Administrative Agent).
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Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in subsection (a) of Section
5.06 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a)(i) and (b)(i) of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type, or a
continuation of Eurodollar Rate Loans) submitted by SEI shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to the Administrative Agent
and the Lenders that:
5.01 ORGANIZATION AND AUTHORITY.
(a) Each Borrower and each Guarantor is a corporation, limited liability
company, partnership or civil partnership as the case may be, duly organized and
validly existing under the laws of the jurisdiction of its formation;
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(b) Each Borrower and each Guarantor (x) has the requisite power and
authority to own its properties and assets and to carry on its business as now
being conducted and as contemplated in the Loan Documents, and (y) is qualified
to do business in every jurisdiction in which failure so to qualify would have a
Material Adverse Effect;
(c) Each Borrower has the power and authority to execute, deliver and
perform this Agreement and the Notes, and to borrow hereunder, and to execute,
deliver and perform each of the other Loan Documents to which it is a party;
(d) Each Guarantor (other than any Borrower) has the power and authority
to execute, deliver and perform the Guaranty and each of the other Loan
Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to which any
Loan Party is a party will be the legal, valid and binding obligation or
agreement, as the case may be, of such Loan Party, enforceable against such Loan
Party in accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization, fraudulent conveyance or
other similar law affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity (whether considered in a
proceeding at law or in equity).
5.02 LOAN DOCUMENTS. The execution, delivery and performance by each Loan
Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite organizational action of
such Loan Party required for the lawful execution, delivery and performance
thereof;
(b) do not violate any provisions of (i) any applicable law, rule or
regulation, (ii) any judgment, writ, order, determination, decree or arbitral
award of any Governmental Authority or arbitral authority binding on such Loan
Party or its properties, or (iii) the Organization Documents of such Loan Party;
(c) does not and will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse of time
or both, would constitute an event of default, under any contract, indenture,
agreement or other instrument or document to which such Loan Party is a party,
or by which the properties or assets of such Loan Party are bound; and
(d) does not and will not result in the creation or imposition of any Lien
upon any of the properties or assets of such Loan Party or any Subsidiary except
Permitted Liens.
5.03 SOLVENCY. (a) As of the Closing Date, each Loan Party is Solvent
after giving effect to the transactions contemplated by the Loan Documents, and
(b) at any time thereafter, SEI and its Subsidiaries are Solvent on a
consolidated basis.
5.04 SUBSIDIARIES AND STOCKHOLDERS. SEI has no Domestic Subsidiaries or
Direct Foreign Subsidiaries other than those Persons listed as Domestic
Subsidiaries or Direct Foreign Subsidiaries in Schedule 5.04 and additional
Domestic Subsidiaries or Direct Foreign Subsidiaries created or acquired after
the Closing Date in compliance with Section 6.19;
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Schedule 5.04 states as of the date hereof the organizational form of each
entity, the authorized and issued capitalization of each Domestic Subsidiary and
Direct Foreign Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and outstanding of
each such Domestic Subsidiary and Direct Foreign Subsidiary and the number
and/or percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each such class
of capital stock or other equity interest owned by SEI or by any Domestic
Subsidiary; the outstanding shares or other equity interests of each such
Domestic Subsidiary and Direct Foreign Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable; and SEI and each Domestic
Subsidiary owns beneficially and of record all the shares and other interests it
is listed as owning in Schedule 5.04, free and clear of any Lien other than
Liens on Subsidiary Securities securing Seller Financed Indebtedness or any Lien
arising under the Loan Documents.
5.05 OWNERSHIP INTERESTS. Except as set forth in Schedule 5.05, SEI owns
no interest in any Person other than the Persons listed in Schedule 5.04, equity
investments in Persons not constituting Subsidiaries permitted under Section
7.07 and additional Subsidiaries created or acquired after the Closing Date in
compliance with Section 6.19.
5.06 FINANCIAL CONDITION.
(a) SEI has heretofore furnished to Administrative Agent the following:
(i) audited consolidated balance sheets of SEI and its Subsidiaries
as of October 31, 2001, 2002 and 2003, and audited consolidated statements
of income, stockholders' equity and cash flows for each such fiscal year
then ended, along with the related notes thereto, all as examined and
certified by PricewaterhouseCoopers LLP; and
(ii) unaudited interim consolidated balance sheets of SEI and its
Subsidiaries as of July 31, 2004, and unaudited interim consolidated
statements of income, stockholders' equity and cash flows for the quarter
and/or nine-month period then ended, as applicable.
Except as set forth therein, the financial statements described in
subsections (i) and (ii) above (including the notes thereto, where
applicable) present fairly the financial condition of SEI and its
Subsidiaries and the results of their operations, cash flows and changes
in stockholders' equity, as applicable, as of and for the periods
indicated in such subsections, all in conformity with GAAP, subject
however, in the case of unaudited interim statements, to year end audit
adjustments.
(b) since the later of (i) the date of the audited financial statements
delivered pursuant to Section 5.06(a) hereof with respect to the fiscal year
ended October 31, 2003, or (ii) the date of the audited financial statements
most recently delivered pursuant to Section 6.01(a) hereof, there has not
occurred any event, condition (financial or otherwise) or circumstance which has
had or could reasonably be expected to have a Material Adverse Effect, nor have
the businesses, assets, operations or properties of SEI or any Subsidiary, on a
consolidated basis, been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God; and
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(c) except as set forth in the financial statements for the fiscal year
ended October 31, 2003 and the nine-month period ended July 31, 2004 referred to
in Section 5.06(a) or permitted by Section 7.05, neither SEI nor any Subsidiary
has incurred, other than in the ordinary course of business, any material
Indebtedness or any other material commitment or liability which remains
outstanding or unsatisfied.
5.07 TITLE TO PROPERTIES. SEI and each of its Subsidiaries and each other
Loan Party has good and marketable title to its material real and all its
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens permitted by Section 7.04.
5.08 TAXES. SEI and each of its Subsidiaries has filed or caused to be
filed all material federal, state and local tax returns which are required to be
filed by it and, except for taxes and assessments being contested in good faith
by appropriate proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section 5.06(a) or Sections
6.01(a) or (b) and satisfactory to SEI's independent certified public
accountants have been established, have paid or caused to be paid all material
taxes as shown on said returns or on any assessment received by it, to the
extent that such taxes have become due, except to the extent failure to pay
could not reasonably be expected to have a Material Adverse Effect.
5.09 OTHER AGREEMENTS. Neither SEI, any other Loan Party nor any other
Subsidiary of SEI is:
(a) a party to or subject to any judgment, order, decree, agreement, lease
or instrument, or subject to other restrictions, which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument to
which such Loan Party or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could reasonably be expected to
have, a Material Adverse Effect.
5.10 LITIGATION. There is no action, suit, investigation or proceeding at
law or in equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of any Borrower, threatened by or
against any Borrower or any Subsidiary or other Loan Party or affecting any
Borrower or any Subsidiary or other Loan Party or any properties or rights of
any Borrower or any Subsidiary or other Loan Party, which could reasonably be
expected to have a Material Adverse Effect.
5.11 MARGIN STOCK. The proceeds of the borrowings made hereunder will be
used by each Borrower only for the purposes expressly authorized herein. None of
such proceeds will be used, directly or indirectly, for the purpose of (i)
purchasing or carrying any margin stock, or (ii) for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the Board; provided, that, notwithstanding the foregoing clause (i), SEI
may use proceeds of borrowings to purchase Equity Interests of SEI that would
otherwise violate such clause (i) so
79
long as either (x) the Equity Interests of SEI constituting such margin stock so
acquired are promptly retired following the purchase or other acquisition
thereof or (y) at all times and after giving effect to each such purchase or
acquisition of Equity Interests in SEI, not more than twenty five percent (25%)
of the total assets of SEI and its Subsidiaries on a consolidated basis are
represented by such Equity Interests in SEI constituting margin stock owned by
SEI and its Subsidiaries on a consolidated basis. Neither any Borrower, any
Subsidiary of SEI nor any agent acting on behalf of any of them has taken or
will take any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation of the Board or
to violate the Securities Exchange Act of 1934, as amended, or the Securities
Act of 1933, as amended, or any state securities laws, in each case as in effect
on the date hereof.
5.12 REGULATED COMPANY. No Loan Party is (i) an "investment company," or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. Section 80a-1, et seq.) or (ii) a "holding company"
or a "subsidiary company" or "affiliate" of a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended. The
application of the proceeds of the Loans and repayment thereof by any Borrower
and the performance by any Borrower and the other Loan Parties of the
transactions contemplated by the Loan Documents will not violate any provision
of said Acts, or any rule, regulation or order issued by the SEC thereunder, in
each case as in effect on the date hereof.
5.13 PATENTS, ETC. Except to the extent it could not reasonably be
expected to have a Material Adverse Effect, each Borrower and each other Loan
Party owns or has the right to use, under valid license agreements or otherwise,
all material patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets and copyrights necessary to or used in
the conduct of its businesses as now conducted and as contemplated by the Loan
Documents, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright or other proprietary right of any
other Person.
5.14 NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
any Borrower or any other Loan Party in accordance with or pursuant to any Loan
Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading; provided that, with respect to
projected financial information, the Borrowers represent only that such
information was prepared in good faith based on assumptions believed to be
reasonable at the time.
5.15 NO CONSENTS, ETC. Neither the respective businesses or properties of
the Loan Parties or any Subsidiary, nor any relationship among the Loan Parties
or any Subsidiary and any other Person, nor any circumstance in connection with
the execution, delivery and performance of the Loan Documents and the
transactions contemplated thereby, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Loan Party as a
condition to the
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execution, delivery and performance of, or consummation of the transactions
contemplated by the Loan Documents, which, if not obtained or effected, could
reasonably be expected to have a Material Adverse Effect, or if so, such
consent, approval, authorization, filing, registration or qualification has been
duly obtained or effected, as the case may be.
5.16 EMPLOYEE BENEFIT PLANS.
(a) SEI and each ERISA Affiliate is materially in compliance with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder and in compliance with all Foreign Benefit Laws with respect to all
Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired.
Each Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined or SEI or its Subsidiaries is in the process of
obtaining a determination by the Internal Revenue Service to be so qualified,
each trust related to such plan has been determined to be exempt under Section
501(a) of the Code, and each Employee Benefit Plan subject to any Foreign
Benefit Law has received the required approvals by any Governmental Authority
regulating such Employee Benefit Plan. No material liability has been incurred
by SEI or any ERISA Affiliate which remains unsatisfied for any taxes or
penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither SEI nor any ERISA Affiliate has (i) engaged in a nonexempt
prohibited transaction described in Section 4975 of the Code or Section 406 of
ERISA affecting any of the Employee Benefit Plans or the trusts created
thereunder which could subject any such Employee Benefit Plan or trust to a
material tax or penalty on prohibited transactions imposed under Section 4975 of
the Code or ERISA, (ii) incurred any accumulated funding deficiency with respect
to any Employee Benefit Plan, whether or not waived, or any other liability to
the PBGC which remains outstanding other than the payment of premiums and there
are no premium payments which are due and unpaid, (iii) failed to make a
required contribution or payment to a Multiemployer Plan, (iv) failed to make a
required installment or other required payment under Section 412 of the Code,
Section 302 of ERISA or the terms of such Employee Benefit Plan, or (v) failed
to make a required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit Plan;
(c) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Pension Plan or Multiemployer Plan, and neither SEI nor any ERISA
Affiliate has incurred any unpaid withdrawal liability with respect to any
Multiemployer Plan;
(d) The present value of all vested accrued benefits under each Employee
Benefit Plan which is subject to Title IV of ERISA, or the funding of which is
regulated by any Foreign Benefit Law did not, as of the most recent valuation
date for each such plan, exceed the then current value of the assets of such
Employee Benefit Plan allocable to such benefits;
(e) To the best of SEI's knowledge, each Employee Benefit Plan which is
subject to Title IV of ERISA or the funding of which is regulated by any Foreign
Benefit Law, maintained by SEI or any ERISA Affiliate, has been administered in
accordance with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable Foreign
Benefit Law and other applicable laws, regulations and rules;
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(f) The consummation of the Loans and the issuance of the Letters of
Credit provided for herein will not involve any prohibited transaction under
ERISA which is not subject to a statutory or administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or investigation exists or,
to the best knowledge of SEI after due inquiry, is threatened concerning or
involving any Employee Benefit Plan.
5.17 NO DEFAULT. As of the date hereof, there does not exist any Default
or Event of Default hereunder.
5.18 ENVIRONMENTAL LAWS. SEI and each Subsidiary are in compliance with
all applicable Environmental Laws and have been issued and currently maintain
all federal, state and local permits, licenses, certificates and approvals
required under any applicable Environmental Law, in each case except to the
extent failure to do so could not reasonably be expected to have a Material
Adverse Effect. Except to the extent it could not reasonably be expected to have
a Material Adverse Effect, neither SEI nor any Subsidiary has been notified of
any pending or threatened action, suit, proceeding or investigation, and neither
SEI nor any Subsidiary is aware of any facts, which (a) call into question, or
could reasonably be expected to call into question, compliance by SEI or any
Subsidiary with any applicable Environmental Laws, (b) seeks, or could
reasonably be expected to form the basis of a meritorious proceeding, to
suspend, revoke or terminate any license, permit or approval necessary for the
operation of SEI's or any Subsidiary's business or facilities or for the
generation, handling, storage, treatment or disposal of any Hazardous Materials,
or (c) seeks to cause, or could reasonably be expected to form the basis of a
meritorious proceeding to cause, any property of SEI or any Subsidiary or other
Loan Party to be subject to any restrictions on ownership, use, occupancy or
transferability under any applicable Environmental Law.
5.19 EMPLOYMENT MATTERS.
(a) Except as set forth on Schedule 5.19, none of the employees of any
Borrower or any Subsidiary is subject to any collective bargaining agreement and
there are no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor/employee related controversies or proceedings pending or, to the
best knowledge of each Borrower, threatened against any Borrower or any
Subsidiary or between any Borrower or any Subsidiary and any of its employees,
other than employee grievances arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would not have a
Material Adverse Effect, each Borrower and each Subsidiary is in compliance in
all respects with all applicable laws, rules and regulations pertaining to labor
or employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the knowledge of
any Borrower, any investigation, in respect of such matters which, if decided
adversely, could reasonably be likely, individually or in the aggregate, to have
a Material Adverse Effect.
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5.20 DEATHCARE INDUSTRY. Except to the extent a failure to maintain
compliance could not reasonably be expected to have a Material Adverse Effect,
SEI and its Subsidiaries are in compliance in all respects with all Federal,
state, territorial and local laws, rules and regulations, including licensure
requirements applicable to any of them or any of their directors, officers,
employees or agents, applicable to the delivery of funeral, cemetery and related
products and services.
5.21 DESIGNATED SENIOR DEBT AND PERMITTED DEBT. So long as any of the
Senior Subordinated Notes remains outstanding, all of the Obligations (including
any Obligations incurred as a result of the exercise of the increase option
provided in Section 2.16), at the time of their incurrence, constitute (a)
"Designated Senior Debt" under the terms of the Senior Subordinated Indenture
and the Senior Subordinated Notes, and (b) "Permitted Debt" as defined in
Section 4.09 of the Senior Subordinated Indenture.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, SEI shall, and
where applicable shall cause each Subsidiary to:
6.01 FINANCIAL REPORTS, ETC.
(a) As soon as practical, and in any event within the Maximum Permitted
Time, deliver or cause to be delivered to the Administrative Agent (both in hard
copy and in electronic form sufficient for further distribution to each Lender):
(i) consolidated balance sheet of SEI and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of
income, stockholders' equity and cash flows for such fiscal year, along
with the related notes thereto (which financial statements and related
notes may be included in SEI's most recent Form 10-K), all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of PricewaterhouseCoopers LLP, or other independent
certified public accountants of national standing selected by SEI, as to
whether such financial statements are presented fairly, in all material
respects, in accordance with GAAP, and which report and opinion shall be
prepared in accordance with audit standards of the PCAOB and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect
to the presentation of the consolidated financial statements in accordance
with GAAP; and
(ii) a Compliance Certificate executed by a Responsible Officer of
SEI demonstrating compliance with Sections 7.01(a) through 7.01(c) and
7.03;
(b) as soon as practical, and in any event within the Maximum Permitted
Time, deliver or cause to be delivered to the Administrative Agent (both in hard
copy and in electronic form sufficient for further distribution to each Lender):
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(i) consolidated balance sheets of SEI and its Subsidiaries as of
the end of such fiscal quarter, and consolidated statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the
period from the beginning of the then current fiscal year through the end
of such reporting period (which financial statements may be on Form 10-Q),
and accompanied by a certificate of a Responsible Officer of SEI to the
effect that such financial statements present fairly the financial
position of SEI and its Subsidiaries as of the end of such fiscal period
and the results of their operations and cash flows for such fiscal period,
in accordance with GAAP, subject however, to year end audit adjustments;
and
(ii) a Compliance Certificate executed by a Responsible Officer of
SEI containing computations for such quarter comparable to that required
pursuant to Section 6.01(a)(ii), but excluding compliance with Section
7.03;
(c) together with each delivery of the financial statements required by
Section 6.01(a)(i), deliver to the Administrative Agent (both in hard copy and
in electronic form sufficient for further distribution to each Lender) a letter
from SEI's accountants specified in Section 6.01(a)(i) stating that in
performing the audit necessary to render an opinion on the financial statements
delivered under Section 6.01(a)(i), they obtained no knowledge of any Default or
Event of Default by any Borrower in the fulfillment of the terms and provisions
of this Agreement insofar as they relate to financial matters (which at the date
of such statement remains uncured); or if the accountants have obtained
knowledge of such Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) promptly upon their becoming available to SEI, SEI shall deliver to
the Administrative Agent (both in hard copy and in electronic form sufficient
for further distribution to each Lender) a copy of (i) all regular or special
reports or effective registration statements which SEI or any Subsidiary shall
file with the SEC (or any successor thereto) or any securities exchange, and
(ii) any proxy statement distributed by SEI or any Subsidiary to its
shareholders, bondholders or the financial community in general; and
(e) promptly, from time to time, deliver or cause to be delivered to the
Administrative Agent (both in hard copy and in electronic form sufficient for
further distribution to each Lender) such other information regarding SEI's and
any Subsidiary's operations, business affairs and financial condition as the
Administrative Agent or any Lender may reasonably request.
The Administrative Agent, the Collateral Agent and the Lenders are hereby
authorized to deliver a copy of any such financial or other information
delivered hereunder to the Lenders (or any Affiliate of any Lender) or to the
Administrative Agent, to any Governmental Authority having jurisdiction over the
Administrative Agent, the Collateral Agent or any of the Lenders pursuant to any
written request therefor or in the ordinary course of examination of loan files,
or to any other Person who shall acquire or consider the assignment of, or
acquisition of any participation interest in, any Obligation permitted by this
Agreement, including any pledgee pursuant to Section 10.06(f).
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information
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provided by or on behalf of the Borrowers hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). Each Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC", such Borrower shall be deemed to have authorized
the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat
such Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to the
Borrower or its securities for purposes of United States Federal and state
securities laws; (y) all Borrower Materials marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated "Public Investor";
and (z) the Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not designated "Public Investor".
6.02 MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices.
6.03 EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under Sections 7.06 and 7.08, do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights, franchises and licenses, and maintain all licenses and
qualifications to do business in any jurisdiction in which it operates to the
extent required to so operate, and maintain its good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such good standing necessary.
6.04 REGULATIONS AND TAXES. Comply in all respects with all applicable
statutes and governmental regulations, except for noncompliance which could not
reasonably be expected to have a Material Adverse Effect, and pay all taxes,
assessments, governmental charges, claims for labor, supplies, rent and any
other obligation which, if unpaid, would become a Lien against any of its
properties, except liabilities (a) that could not reasonably be expected to have
a Material Adverse Effect, or (b) being contested in good faith by appropriate
proceedings diligently conducted provided that (i) adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP and (ii) any Lien arising in connection with any such
contest shall be permitted to exist to the extent provided in Section 7.04.
6.05 INSURANCE. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability
85
on account of damage to persons and property and (c) maintain insurance under
all applicable workers' compensation laws (or in the alternative, maintain
required reserves if self-insured for workers' compensation purposes) and
against loss by reason of business interruption with such policies of insurance
to have such limits, deductibles, exclusions, co-insurance and other provisions
providing no less coverage than that maintained by similar businesses that are
similarly situated, such insurance policies to be in form reasonably
satisfactory to the Administrative Agent and the Collateral Agent. Each of the
policies of insurance described in this Section 6.05 shall provide that the
insurer shall give the Collateral Agent not less than thirty (30) days' prior
written notice before any such policy shall be terminated, lapse or be altered
in any manner.
6.06 TRUE BOOKS. Keep true books of record and account in which full, true
and correct entries will be made of all of its dealings and transactions, and
set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
6.07 RIGHT OF INSPECTION. Permit any Person designated by any Lender or
the Administrative Agent to visit and inspect any of the properties, corporate
books and financial reports of SEI or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all to be reasonable in scope, at reasonable times, at
reasonable intervals and with reasonable prior notice.
6.08 OBSERVE ALL LAWS. Except to the extent that any failure could not
reasonably be expected to have a Material Adverse Effect, conform to and duly
observe in all material respects all applicable laws, rules and regulations and
all other valid requirements of any Governmental Authority with respect to the
conduct of its business.
6.09 GOVERNMENTAL LICENSES. Except to the extent that any failure could
not reasonably be expected to have a Material Adverse Effect, obtain and
maintain all licenses, permits, certifications and approvals of all applicable
Governmental Authorities as are required for the conduct of its business as
currently conducted and as contemplated by the Loan Documents.
6.10 COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its Subsidiaries
(and, with respect to the maintenance of required licenses and permits under
Sections 6.03, 6.04 and 6.09, their respective officers, directors and
employees) to do with respect to itself, its business and its assets, each of
the things required of SEI in Sections 6.02 through 6.09, and 6.18 inclusive.
6.11 OFFICER'S KNOWLEDGE OF DEFAULT. Upon any Executive Officer obtaining
knowledge of (a) any event, development or occurrence which could reasonably be
expected to have a Material Adverse Effect, or (b) any Default or Event of
Default hereunder or under any Related Swap Contract, cause such officer or a
Responsible Officer of SEI to promptly notify the Administrative Agent of the
nature thereof, the period of existence thereof, and what action such Borrower
or such Subsidiary or other Loan Party proposes to take with respect thereto.
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6.12 SUITS OR OTHER PROCEEDINGS. Upon any Executive Officer obtaining
knowledge of any litigation, investigation or other proceedings being instituted
against any Borrower or any Subsidiary or other Loan Party, or any attachment,
levy, execution or other process being instituted against any assets of any
Borrower or any Subsidiary or other Loan Party, making a claim or claims in an
aggregate amount greater than $5,000,000 not otherwise covered by insurance,
promptly deliver to the Administrative Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
6.13 NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. To the extent any of
the following could reasonably be expected to have a Material Adverse Effect,
promptly provide to the Administrative Agent true, accurate and complete copies
of any and all notices, complaints, orders, directives, claims or citations
received by any Borrower or any Subsidiary relating to any (a) violation or
alleged violation by any Borrower or any Subsidiary of any applicable
Environmental Law; (b) release or threatened release by any Borrower or any
Subsidiary, or by any Person handling, transporting or disposing of any
Hazardous Material on behalf of any Borrower or any Subsidiary, or at any
facility or property owned or leased or operated by any Borrower or any
Subsidiary, of any Hazardous Material, except where occurring legally pursuant
to a permit or license; or (c) liability or alleged liability of any Borrower or
any Subsidiary for the costs of cleaning up, removing, remediating or responding
to a release of Hazardous Materials.
6.14 ENVIRONMENTAL COMPLIANCE. If any Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation from
any Governmental Authority responsible for enforcing such Environmental Law
alleging that any Borrower or any Subsidiary has violated any applicable
Environmental Law, has released any Hazardous Material, or is liable for the
costs of cleaning up, removing, remediating or responding to a release of
Hazardous Materials, each such Borrower shall, within the time period permitted
and to the extent required by the applicable Environmental Law or the
Governmental Authority responsible for enforcing such Environmental Law, remove
or remedy, or cause the applicable Subsidiary to remove or remedy, such
violation or release or satisfy such liability.
6.15 INDEMNIFICATION. Without limiting the generality of Section 10.04,
SEI hereby agrees to indemnify and hold each Indemnitee harmless from and
against any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys', consultants'
or other expert fees, expenses and disbursements) arising directly or indirectly
from, out of or by reason of (a) the violation of any Environmental Law by SEI
or any Subsidiary or with respect to any property owned, operated or leased by
SEI or any Subsidiary or (b) the handling, storage, transportation, treatment,
emission, release, discharge or disposal of any Hazardous Materials by or on
behalf of SEI or any Subsidiary, or on or with respect to property owned or
leased or operated by SEI or any Subsidiary. The provisions of this Section 6.15
shall continue in effect notwithstanding the Facility Termination Date.
6.16 FURTHER ASSURANCES. At SEI's cost and expense, upon request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent or the Collateral Agent, as applicable,
such further instruments, documents, certificates, financing and continuation
statements, and do and cause to be done such further acts that may be reasonably
necessary or advisable in the reasonable opinion of the
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Administrative Agent or the Collateral Agent, as applicable, to carry out more
effectively the provisions and purposes of this Agreement, the Security
Instruments and the other Loan Documents.
6.17 EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty (30) days
thereof, give notice to the Administrative Agent of any of the following events
that could reasonably be expected to result in a Material Adverse Effect: (a)
the establishment of any new Pension Plan (which notice shall include a copy of
such plan), (b) the commencement of contributions to any Employee Benefit Plan
to which SEI or any of its ERISA Affiliates was not previously contributing, (c)
any material increase in the benefits of any existing Employee Benefit Plan, and
(d) the failure of SEI or any ERISA Affiliate to make a required installment or
payment under any Foreign Benefit Law (in the case of Employee Benefit Plans
regulated by any Foreign Benefit Law) by the due date;
(b) With reasonable promptness, and in any event within thirty (30) days
thereof, give notice to the Administrative Agent of (a) each funding waiver
request filed with respect to any Pension Plan and all communications received
or sent by SEI or any ERISA Affiliate with respect to such request, and (b) the
failure of SEI or any ERISA Affiliate to make a required installment or payment
under Section 302 of ERISA or Section 412 of the Code (in the case of Employee
Benefit Plans regulated by the Code or ERISA) by the due date;
(c) Promptly and in any event within thirty (30) days of becoming aware of
the occurrence or forthcoming occurrence of any event listed in items (i) to
(ix) of the definition of ERISA Event;
(d) Promptly and in any event within thirty (30) days of becoming aware of
the occurrence or forthcoming occurrence of any of the following that could
reasonably be expected to result in a Material Adverse Effect: (a) an event
listed in item (x) of the definition of ERISA Event or (b) a nonexempt
"prohibited transaction," as such term is defined in Section 406 of ERISA or
Section 4975 of the Code, in connection with any Employee Benefit Plan or any
trust created thereunder, deliver to the Administrative Agent a notice
specifying the nature thereof, what action SEI or any ERISA Affiliate has taken,
is taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto; and
(e) With reasonable promptness but in any event within thirty (30) days
for purposes of clauses (i), (ii) and (iii) of this Section 6.17(e), deliver to
the Administrative Agent copies of any of the following events that could
reasonably be expected to result in a Material Adverse Effect: (i) any
unfavorable determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code, (ii)
all notices received by SEI or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan, (iii) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by SEI or
any ERISA Affiliate with the Internal Revenue Service with respect to each
Employee Benefit Plan and (iv) all notices received by SEI or any ERISA
Affiliate from a Multiemployer Plan
88
sponsor concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA. SEI will notify the Administrative Agent in writing
within five (5) Business Days of SEI or any ERISA Affiliate obtaining knowledge
or reason to know that SEI or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
6.18 CONTINUED OPERATIONS. Continue at all times to conduct its business
and engage principally in the same line or lines of business substantially as
heretofore conducted, including financing and insurance operations reasonably
related or ancillary thereto.
6.19 NEW SUBSIDIARIES. Not later than thirty (30) days after (i) the
acquisition or creation of any Domestic Subsidiary, any Direct Foreign
Subsidiary, or any PR Subsidiary, or (ii) any Subsidiary becoming a Domestic
Subsidiary (including by ceasing to be an Excluded Subsidiary), a Direct Foreign
Subsidiary or a PR Subsidiary, cause to be delivered to the Administrative Agent
each of the following:
(a) to the extent such Subsidiary is a Domestic Subsidiary or a PR
Subsidiary, a Guaranty executed by such Subsidiary substantially in the form of
the Guaranty;
(b) to the extent such Subsidiary is a Domestic Subsidiary, required
Security Instruments of such Subsidiary, including a Security Agreement and an
Intellectual Property Security Agreement (together, if required by the
Collateral Agent, with an Assignment of Patents, Trademarks and Copyrights), in
each case substantially in the form of such documents as delivered on the
Original Closing Date, together with such Uniform Commercial Code financing
statements on Form UCC-1 or otherwise duly executed by such Subsidiary as
"Debtor" and naming the Collateral Agent for the benefit of the Collateral Agent
and the Lenders as "Secured Party," in form, substance and number sufficient in
the reasonable opinion of the Collateral Agent and its special counsel to be
filed in all Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary or advisable to perfect in favor of the Collateral
Agent for the benefit of the Collateral Agent and the Lenders the Lien on
Collateral conferred under such Security Instrument to the extent such Lien may
be perfected by Uniform Commercial Code filing;
(c) if the Subsidiary Securities issued by such Subsidiary that are, or
are required to become, Pledged Interests, shall be owned by a Subsidiary who
has not then executed and delivered to the Collateral Agent a Pledge Agreement
granting a Lien to the Collateral Agent, for the benefit of the Collateral Agent
and the Lenders, in such equity interests, a Pledge Agreement executed by the
Subsidiary that directly owns such Subsidiary Securities substantially in the
form of the Pledge Agreement delivered on the Original Closing Date (or, as to
the Pledged Interests issued by any Direct Foreign Subsidiary, in a form
acceptable to the Collateral Agent), and if such Subsidiary Securities shall be
owned by SEI or a Subsidiary who has previously executed a Pledge Agreement, a
Pledge Agreement Supplement in the form required by such Pledge Agreement
pertaining to such Subsidiary Securities;
(d) if the Pledged Interests issued by such Subsidiary constitute
securities under Article 8 of the Uniform Commercial Code (i) the certificates
representing 100% of such
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Subsidiary Securities and (ii) duly executed, undated stock powers or other
appropriate powers of assignment in blank affixed thereto;
(i) (i) Uniform Commercial Code financing statements on form UCC-1
or otherwise duly executed by the pledgor as "Debtor" and naming the
Collateral Agent for the benefit of the Collateral Agent and the Lenders
as "Secured Party," in form, substance and number sufficient in the
reasonable opinion of the Collateral Agent and its special counsel to be
filed in all Uniform Commercial Code filing offices and in all
jurisdictions in which filing is necessary or advisable to perfect in
favor of the Collateral Agent for the benefit of the Collateral Agent and
the Lenders the Lien on such Subsidiary Securities and (ii) if the Pledged
Interests issued by such Subsidiary do not constitute securities and such
Subsidiary has not elected to have such interests treated as securities
under Article 8 of the applicable Uniform Commercial Code, a control
agreement from the Registrar of such Subsidiary, in form and substance
acceptable to the Collateral Agent and in which the Registrar (1)
acknowledges that the pledgor is at the date of such acknowledgment the
sole record, and to its knowledge, beneficial owner of such Subsidiary
Securities, (2) acknowledges the Lien in favor of the Collateral Agent
conferred under the Pledge Agreement and that such Lien will be reflected
on the registry for such Subsidiary Securities, (3) agrees that it will
not register any transfer of such Subsidiary Securities nor acknowledge
any Lien in favor of any other Person on such Subsidiary Securities,
without the prior written consent of the Collateral Agent, in each
instance, until it receives notice from the Collateral Agent that all
Liens on such Collateral in favor of the Collateral Agent for the benefit
of the Collateral Agent and the Lenders have been released or terminated,
and (4) agrees that upon receipt of notice from the Agent that an Event of
Default has occurred and is continuing and that the Subsidiary Securities
identified in such notice have been transferred to a transferee identified
in such notice, it will duly record such transfer of Subsidiary Securities
on the appropriate registry without requiring further consent from the
pledgor and shall thereafter treat the transferee as the sole record and
beneficial owner of such Subsidiary Securities pending further transfer,
notwithstanding any contrary instruction received from the pledgor;
(e) a supplement to the appropriate schedule attached to the appropriate
Security Instruments listing the additional Collateral, certified as true,
correct and complete by the Responsible Officer (provided that the failure to
deliver such supplement shall not impair the rights conferred under the Security
Instruments in after acquired Collateral);
(f) an opinion of counsel to the Subsidiary dated as of the date of
delivery of the Guaranty and other Loan Documents provided for in this Section
6.19 and addressed to the Administrative Agent, the Collateral Agent and the
Lenders, in form and substance reasonably acceptable to the Administrative
Agent, including opinions, assumptions and qualifications similar to those
contained in the opinions of counsel delivered pursuant to Section 4.01(a); and
(g) current copies, certified by an appropriate officer of such
Subsidiary, of the Organization Documents of such Subsidiary, resolutions (or
duly effected consent actions) of the Board of Directors, partners, or
appropriate committees thereof (and, if required by such Organization Documents
or applicable law, of the shareholders, members or partners) of such
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Subsidiary authorizing the actions and the execution and delivery of documents
described in this Section 6.19.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, SEI shall not,
nor shall it permit any Subsidiary to, directly or indirectly:
7.01 FINANCIAL COVENANTS.
(a) Consolidated Leverage Ratio. Permit at any time the Consolidated Leverage
Ratio to be greater than 3.50 to 1.00.
(b) Consolidated Senior Secured Leverage Ratio. Permit at any time during the
respective periods set forth below the Consolidated Senior Secured Leverage
Ratio to be greater than that set forth opposite each such period:
MAXIMUM CONSOLIDATED
PERIOD SENIOR SECURED LEVERAGE RATIO
------ -----------------------------
Closing Date through
October 30, 2006 3.00 to 1.00
October 31, 2006 through
October 30, 2007 2.75 to 1.00
October 31, 2007 and thereafter 2.50 to 1.00
(c) Consolidated Interest Coverage Ratio. Permit at any time the
Consolidated Interest Coverage Ratio to be less than 2.50 to 1.00.
7.02 ACQUISITIONS. Enter into any agreement, contract, binding commitment
or other arrangement providing for any Acquisition, or take any action to
solicit the tender of securities or proxies in respect thereof in order to
effect any Acquisition, unless:
(a) the Person to be (or whose assets are to be) acquired does not oppose
such Acquisition and the line or lines of business of the Person to be acquired
are substantially the same as one or more line or lines of business conducted by
the Borrower and its Subsidiaries;
(b) no Default or Event of Default shall have occurred and be continuing
either immediately prior to or immediately after giving effect to such
Acquisition;
(c) immediately after giving effect thereto, Available Liquidity shall be
greater than or equal to $25,000,000;
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(d) the Person acquired shall either (i) be a wholly-owned Domestic
Subsidiary, or be merged into SEI or an SEI Guarantor, immediately upon
consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be SEI or a SEI Guarantor), or (ii) be a wholly-owned Subsidiary of one or
both of the PR Borrowers or of a PR Guarantor, or be merged into a PR Borrower
or a PR Guarantor, immediately upon the consummation of the Acquisition (or if
assets are being acquired, the acquiror shall be a PR Borrower or a PR
Guarantor), provided that the aggregate Cost of Acquisition of all Acquisitions
permitted under this part (d)(ii) shall not exceed $30,000,000;
(e) either:
(i) after giving pro forma historical effect to such Acquisition,
the Consolidated Leverage Ratio shall be less than or equal to 3.00 to
1.00 and the Consolidated Senior Secured Leverage Ratio shall be less than
or equal to 1.75 to 1.00, which shall be demonstrated in a Compliance
Certificate delivered pursuant to subsection (f)(ii) below or, in the
event no such Compliance Certificate is required and the Cost of
Acquisition of such Acquisition exceeds $5,000,000, in a separate
calculation provided to the Administrative Agent, or
(ii) the Cost of Acquisition of such Acquisition, when combined with
the Cost of Acquisition of all other Acquisitions consummated since the
beginning of the then-current fiscal year, does not exceed the sum of (A)
$75,000,000, and (B) the amount permitted by this subsection (e)(ii)
(without giving effect to any Acquisition consummated in reliance on
subsection (e)(i)) but not used in each previous fiscal year (including
cumulative carryovers) beginning with the fiscal year ending October 31,
2005; and
(f) in the event the Cost of Acquisition of such Acquisition exceeds
$20,000,000, SEI shall have furnished to the Administrative Agent (i) pro forma
historical financial statements as of the end of the most recently completed
fiscal year of SEI and most recent interim fiscal quarter, if applicable, giving
effect to such Acquisition and (ii) a Compliance Certificate prepared on a
historical pro forma basis as of the most recent date for which financial
statements have been furnished pursuant to Section 5.06(a) or Section 6.01(a) or
(b) giving effect to such Acquisition and all other Acquisitions since the last
such certificate was delivered, which certificate shall demonstrate that no
Default or Event of Default would exist immediately after giving effect thereto.
7.03 CAPITAL EXPENDITURES. Make Capital Expenditures which exceed in the
aggregate in any fiscal year of SEI, the sum of (a) $40,000,000, and (b) the
amount permitted but not used in each previous fiscal year (including cumulative
carryovers) beginning with the fiscal year ending October 31, 2005.
7.04 LIENS. Incur, create, assume or permit to exist any Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by SEI or any Subsidiary, other than:
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(a) Liens created under the Security Instruments in favor of the
Collateral Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in Schedule 7.04;
(b) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being contested in
good faith by appropriate proceedings diligently conducted and with respect to
which adequate reserves are being maintained in accordance with GAAP, which
Liens are not yet exercisable to effect the sale or seizure of property subject
thereto;
(c) (i) statutory Liens of landlords, (iii) Liens of carriers,
warehousemen, mechanics, materialmen and (iii) other Liens arising in the
ordinary course of business and in existence less than 90 days from the date of
creation thereof for amounts not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted, and with respect to which
adequate reserves are being maintained in accordance with GAAP, which Liens are
not yet exercisable to effect the sale or seizure of property subject thereto;
(d) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders, bids, leases,
surety and appeal bonds, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or arising as
a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and utility
agreements), rights-of-way, covenants, consents, reservations, encroachments,
variations and zoning and other restrictions, charges or encumbrances (whether
or not recorded), which do not interfere materially with the ordinary conduct of
the business of SEI or any Subsidiary and which do not materially detract from
the value of the property to which they attach or materially impair the use
thereof to the Borrower or any Subsidiary; and
(f) purchase money Liens to secure Indebtedness permitted under Section
7.05(d)(i) and incurred to purchase fixed assets (or, to the extent permitted by
Section 7.05(f), any Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, such Indebtedness); provided, in
each case, that such Indebtedness represents not less than 85% of the purchase
price of such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness;
(g) Liens arising in connection with Capital Leases permitted under
Section 7.05(d)(i), provided that no such Lien shall extend to any Collateral or
to any other property other than the assets subject to such Capital Leases;
(h) Liens on specific assets (other than any Equity Interests of any
Subsidiary of SEI) securing Acquired Indebtedness permitted under Section
7.05(d)(ii) (or, to the extent permitted by Section 7.05(f), any Indebtedness
extending the maturity of, or renewing, refunding or refinancing, in whole or in
part, such Indebtedness); provided, in each case, that (i) no such Lien extends
to any property other than the property acquired (or the property of the Person
acquired), and (ii) the aggregate principal amount of all Indebtedness secured
by such Liens does not
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exceed $50,000,000 at any time the Consolidated Senior Secured Leverage Ratio is
less than or equal to 1.75 to 1.00, or $25,000,000 at any other time; and
(i) Liens in favor of SEI or any SEI Guarantor.
7.05 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth either (i)
in Schedule 7.05(a)(i) with respect to SEI and its Subsidiaries on a
consolidated basis (including without limitation the Senior Subordinated Notes,
the Seller Financed Indebtedness and Non-Compete Liabilities) or (ii) in
Schedule 7.05(a)(ii) with respect to any Indebtedness owing by any Subsidiary of
SEI that is not a Guarantor to SEI or any SEI Guarantor; provided that except as
expressly set forth in (f) and (h) below, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date in any manner that would be less favorable
in any material respect to the Administrative Agent and the Lenders than as in
effect on the Closing Date;
(b) Indebtedness owing to the Administrative Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(d) (i) purchase money Indebtedness described in Section 7.04(f) and
Capital Leases described in Section 7.04(g), and (ii) secured Acquired
Indebtedness described in Section 7.04(h);
(e) obligations (contingent or otherwise) of SEI or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a "market view;" and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(f) Indebtedness extending the maturity of, or renewing, refunding or
refinancing, in whole or in part, the Indebtedness permitted under clause (a) or
clause (d) above, provided that that (i) the aggregate principal amount of such
extended, renewed, refunded or refinanced Indebtedness shall not be increased by
such action (other than by amounts required to pay any fees, premium or
transaction costs in connection with such extension, renewal, refunding or
refinancing), (ii) the weighted average life of such Indebtedness shall not be
less than the weighted average life of the Indebtedness extended, renewed,
refunded or refinanced thereby, (iii) the maturity date of such Indebtedness
shall not be before the maturity date of the Indebtedness extended, renewed,
refunded or refinanced thereby, (iv) the group of direct or contingent obligors
on such Indebtedness shall not be expanded as a result of any such action, (v)
the terms relating to collateral (if any) or subordination (if any) of such
Indebtedness, or any
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instrument or agreement entered into in connection therewith, shall be no less
favorable in any material respect to the Lenders, (vi) immediately before and
immediately after giving effect to any such extension, renewal, refunding or
refinancing, no Default or Event of Default shall have occurred and be
continuing, and (vii) in the case of any such Indebtedness that extends, renews,
refunds or refinances the Senior Subordinated Notes in whole or in part, the
earliest maturity (including any mandatory prepayments and "put" options of the
holders thereof, other than customary and usual mandatory prepayments and put
rights or repurchase obligations arising as a result of a change in control (so
long as such change in control provision is not more restrictive than the Change
of Control provided herein) and customary and usual obligations requiring
prepayments or repurchases with the proceeds of asset sales in the event such
proceeds are not used or required to be used to reinvest or pay down other
senior indebtedness outside of the 350-day reinvestment period provided in this
Agreement) of any such Indebtedness is not earlier than the date that is six
months after the date set forth in part (b) of the definition of Term Loan
Maturity Date;
(g) unsecured intercompany Indebtedness for loans and advances made (i) by
SEI to any SEI Guarantor, (ii) by any SEI Guarantor to SEI or any SEI Guarantor,
(iii) by any PR Borrower or any PR Guarantor to SEI, any SEI Guarantor, any PR
Guarantor or any PR Borrower, (iv) by any Subsidiary that is not a Borrower or a
Guarantor to SEI or any of its Subsidiaries, (v) by any Borrower or any
Guarantor to any Subsidiary that is not a Borrower or a Guarantor in an
aggregate amount not to exceed $5,000,000 at any time outstanding, and (vi) by
SEI or any SEI Guarantor to any PR Borrower or any PR Guarantor, subject to the
PR Downstream Limit;
(h) one or more issuances of Refinancing Indebtedness in a maximum
aggregate principal amount not to exceed the Maximum Specified Additional Debt
Amount in effect at the time of such issuance, so long as (i) no Default has
occurred and is continuing at the time of, or would result from, such issuance,
and (ii) 100% of the net proceeds thereof is used to repay outstanding amounts
under the Senior Subordinated Notes (including interest, premium, fees and
expenses in connection therewith) in connection with a tender or call for all or
substantially all thereof;
(i) additional unsecured Indebtedness of SEI not otherwise covered by
clauses (a) through (h) above and clauses (j) through (l) below, provided that
(i) such Indebtedness is either not guaranteed by any Subsidiary of SEI or is
expressly subordinated to the Obligations on terms reasonably satisfactory to
the Administrative Agent, (ii) no Default has occurred and is continuing at the
time of, or would result from, such issuance or incurrence, and (iii) in the
event any issuance or incurrence of any such Indebtedness, whether in a single
transaction or in a series of related transactions, is in a maximum principal
amount in excess of $50,000,000, SEI shall have delivered a Compliance
Certificate prepared on an historical pro forma basis as of the most recent date
for which financial statements have been furnished pursuant to Section 5.06(a)
or Section 6.01(a) or (b), which certificate shall demonstrate that no Default
or Event of Default would exist immediately after giving effect to the
incurrence or issuance of such Indebtedness;
(j) additional unsecured Indebtedness of SEI or any SEI Guarantor not
otherwise covered by clauses (a) through (i) above and clauses (k) through (l)
below, which Indebtedness may be guaranteed by SEI or any SEI Guarantor (but,
notwithstanding Section 7.05(k) below,
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not by any Subsidiary of SEI that is not a SEI Guarantor), so long as no Default
has occurred and is continuing at the time of, or would result from, such
issuance or incurrence, and such Indebtedness is issued or incurred on terms and
conditions that are either (A) typical for the issuance of high yield notes at
such time and otherwise no more restrictive than, or less advantageous to the
Lenders under, this Agreement (including terms of maturity, amortization,
security and priority), or (B) reasonably satisfactory to the Administrative
Agent; provided that (i) if SEI does not demonstrate that, after giving effect
to any such Indebtedness, the Consolidated Leverage Ratio is less than or equal
to 3.00 to 1.00 and the Consolidated Senior Secured Leverage Ratio is less than
or equal to 1.75 to 1.00, then the maximum principal amount of all such
Indebtedness permitted under this Section 7.05(j) shall not exceed $150,000,000
at any time outstanding, and (ii) in the event any issuance or incurrence of any
such Indebtedness, whether in a single transaction or in a series of related
transactions, is in a maximum principal amount in excess of $50,000,000, SEI
shall have delivered a Compliance Certificate prepared on an historical pro
forma basis as of the most recent date for which financial statements have been
furnished pursuant to Section 5.06(a) or Section 6.01(a) or (b), which
certificate shall demonstrate that no Default or Event of Default would exist
immediately after giving effect to the incurrence or issuance of such
Indebtedness;
(k) the guarantee by SEI or any Subsidiary of any Indebtedness of SEI or
any SEI Guarantor that was permitted to be incurred, created, assumed or to
exist by another provision of this Section 7.05 (except to the extent any such
guarantee is prohibited by the provisions permitting such Indebtedness); and
(l) unsecured Indebtedness of SEI or any Subsidiary in respect of
performance bonds, worker's compensation claims, surety or appeal bonds and
payment obligations in connection with self insurance or similar obligations, in
each case to the extent incurred in the ordinary course of business.
7.06 TRANSFER OF ASSETS. Sell, lease, transfer or otherwise Dispose of any
assets other than:
(a) Dispositions of inventory or trust fund assets in the ordinary course
of business,
(b) Dispositions of tangible real and personal property which, in the
aggregate during any fiscal year (without carrying forward any unused amount
from a prior fiscal year), have a fair market value, taken together with the
fair market value of all De Minimis Dispositions permitted by clause (j) below,
of $6,500,000 or less and is not replaced by tangible real and personal property
having at least equivalent value;
(c) transfers of assets necessary to give effect to merger or
consolidation transactions permitted by Section 7.08;
(d) the Disposition of Eligible Securities and other marketable securities
so long as such Disposition is made in the ordinary course of management of the
investment portfolio of SEI and its Subsidiaries ;
(e) transfers by SEI or any Subsidiary of all or a portion of the
Subsidiary Securities of any Subsidiary to one or more SEI Guarantors, so long
as any SEI Guarantor to which such
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transfer is made executes a Pledge Agreement or a Pledge Agreement Supplement,
as applicable, with respect to such Subsidiary Securities and otherwise takes
such actions and delivers such documents as are reasonably deemed necessary by
the Collateral Agent to perfect the security interest of the Collateral Agent in
such Subsidiary Securities;
(f) other Asset Dispositions after the Closing Date in an aggregate amount
not to exceed $175,000,000, provided that (i) such Asset Disposition shall be
for consideration not less than the fair market value of the assets so Disposed,
such fair market value to be evidenced by a resolution of the Board of Directors
of SEI or the applicable Subsidiary set forth in a certificate of a Responsible
Officer of SEI delivered to the Administrative Agent with respect to any Asset
Disposition yielding Adjusted Disposition Proceeds in excess of $20,000,000,
(ii) for any Asset Disposition yielding Adjusted Disposition Proceeds in excess
of $10,000,000, not less than seventy-five percent (75%) of the total
consideration received therefor shall be in cash, (iii) no Default or Event of
Default shall have occurred and be continuing either immediately prior to or
immediately after giving effect to such Asset Disposition, (iv) with respect to
any Asset Disposition yielding Adjusted Disposition Proceeds in excess of
$20,000,000, SEI shall have furnished to the Administrative Agent (A) pro forma
historical financial statements as of the end of the most recently completed
fiscal quarter of SEI, if applicable, giving effect to such Asset Disposition
and (B) a certificate in the form of Exhibit D prepared on a historical pro
forma basis as of the most recent date for which financial statements have been
furnished pursuant to Section 5.06(a) or Section 6.01(a) or (b) giving effect to
such Asset Disposition, which certificate shall demonstrate that no Default or
Event of Default would exist immediately after giving effect thereto, (v) the
Net Proceeds therefrom shall be applied as provided in Section 2.07, and (vi)
the aggregate amount of all such Asset Dispositions in any fiscal year of the
Borrower shall not exceed $50,000,000 plus the amount of Net Proceeds from any
Asset Dispositions made during such fiscal year which were actually used to
repay Outstandings pursuant to Section 2.06 or Section 2.07 during such fiscal
year (without regard to the 350-day reinvestment period);
(g) transfers of assets made (i) by SEI or any SEI Guarantor to any SEI
Guarantor, (ii) by any PR Borrower or any PR Guarantor to any SEI Guarantor, any
PR Guarantor or any PR Borrower, (iii) by any Subsidiary that is not a Borrower
or a Guarantor to any other Subsidiary, (iv) by any Borrower or any Guarantor to
any Subsidiary that is not a Borrower or a Guarantor with an aggregate fair
market value not to exceed $2,000,000 during any fiscal year (without carrying
forward any unused amount from a prior fiscal year), and (v) by SEI or any SEI
Guarantor to any PR Borrower or any PR Guarantor, subject to the PR Downstream
Limit;
(h) the Disposition of Foreign Cash Equivalents so long as such
Disposition is made in the ordinary course of management of the investment
portfolio of SEI and its Subsidiaries;
(i) any sale and leaseback transaction permitted by Section 7.14; and
(j) De Minimis Dispositions after the Closing Date which, in the aggregate
during any fiscal year (without carrying forward any unused amount from a prior
fiscal year), have a fair market value, taken together with the fair market
value of all Dispositions permitted by clause (b) above, of $5,000,000 or less.
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7.07 INVESTMENTS. Make any Investments, except:
(a) Investments in securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Investments in Eligible Securities and other marketable securities in
the ordinary course of management of the investment portfolio of SEI and its
Subsidiaries;
(c) Investments existing as of the date hereof and as set forth in
Schedule 5.04, Schedule 5.05 or Schedule 7.07(c), provided that this Section
7.07(c) shall continue to apply to any Investments identified on any such
schedule that are transferred from the holder thereof on the Closing Date to the
Borrower or one or more of its Subsidiaries in compliance with Section 7.06(g);
(d) accounts receivable arising and trade credit granted in the ordinary
course of business (including loans or advances made to customers to finance the
purchase of goods and services sold or provided by SEI and its Subsidiaries) and
any securities received in satisfaction or partial satisfaction thereof in
connection with accounts of financially troubled Persons to the extent
reasonably necessary in order to prevent or limit loss;
(e) Investments (including loans, advances and equity investments) (i) by
SEI or any SEI Guarantor in SEI or any SEI Guarantor, (ii) by any PR Borrower or
any PR Guarantor in SEI, any SEI Guarantor, any PR Guarantor or any PR Borrower,
(iii) by any Subsidiary that is not a Borrower or a Guarantor in any other
Subsidiary, and (iv) by SEI or any SEI Guarantor in any PR Borrower or any PR
Guarantor, subject to the PR Downstream Limit;
(f) to the extent not otherwise permitted by the other subsections of this
Section 7.07, Investments consisting of loans, advances, equity interests and
debt securities owned by any Person acquired in an Acquisition permitted
hereunder (but excluding Investments acquired by such Person in contemplation of
such Acquisition); provided that (i) within one hundred eighty (180) days of the
consummation of the related Acquisition such Investments shall be liquidated by
SEI or the applicable Subsidiary, as appropriate, so that the aggregate
outstanding book value or fair market value, whichever is greater, of all
Investments acquired in all Acquisitions shall not then exceed $15,000,000, and
(ii) with respect to any such Investments that remain in place on the day that
is one hundred eighty (180) days after the consummation of the related
Acquisition, SEI or the applicable Subsidiary, as appropriate, shall have
executed and delivered all documents and taken all such other action as the
Administrative Agent and the Collateral Agent shall reasonably deem to be
necessary and sufficient to confer on the Collateral Agent for the benefit of
the Senior Secured Parties (as defined in the applicable Security Agreement) a
duly perfected Lien thereon subject only to Permitted Liens;
(g) other Investments in an aggregate principal amount during any fiscal
year of SEI not to exceed $15,000,000 plus amounts previously invested pursuant
to this Section 7.07(g) and returned to the applicable Person (either as a
repayment of a loan or advance or return of equity capital) during such fiscal
year; provided, that any portion of an amount that is permitted to be invested
in a fiscal year, if not invested in such fiscal year, may be carried over for
investment in successive fiscal years;
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(h) any investment by a Subsidiary that is not a Domestic Subsidiary in
Foreign Cash Equivalents;
(i) any investment made as a result of the receipt of non-cash
consideration from an Asset Disposition in connection with Section 7.06(f); and
(j) funds placed in escrow accounts or trust funds (including the deposit
of the amount of the Florida Bond Obligation in a trust fund in lieu of the
Florida Bond Obligation) for purposes of future delivery of property,
merchandise or services or care and maintenance of cemetery property, in each
case in the ordinary course of business.
7.08 MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any other
Person, or (b) permit any other Person to merge into it, or (c) sell, transfer,
lease or otherwise dispose of all or a substantial part of its assets (other
than sales permitted under Section 7.06; provided, that (i) any SEI Guarantor
may merge or transfer all or substantially all of its assets into or consolidate
with SEI or any SEI Guarantor, and (ii) any other Person may merge into or
consolidate with SEI or any SEI Guarantor, provided SEI or such SEI Guarantor is
the surviving party, (iii) subject to Section 6.19, any Subsidiary may merge
into or consolidate with any other Person in order to consummate an Acquisition
permitted by Section 7.02, and (iv) subject to Section 6.19, any Subsidiary that
is not a Borrower or a Guarantor may merge or transfer all or substantially all
of its assets into or consolidate with SEI or any other Subsidiary.
7.09 RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing except
SEI may make any Restricted Payment described in clause (a), (b) or (c) of the
definition thereof, provided that (i) after giving effect to each such
Restricted Payment, the aggregate amount of Restricted Payments made in the then
current fiscal year shall not exceed the Maximum Restricted Payment Amount then
in effect for such fiscal year, and (ii) both before and after giving effect to
such Restricted Payment no Default or Event of Default shall have occurred or be
continuing.
7.10 TRANSACTIONS WITH AFFILIATES. Other than transactions permitted under
Sections 7.07 and 7.08 or transactions with an individual fair market value of
less than $1,000,000 or an aggregate fair market value of $15,000,000 taken
together with all such transactions, enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of SEI other than an SEI Guarantor, except (a) that such Persons
may render services to SEI or its Subsidiaries for compensation at the same
rates generally paid by Persons engaged in the same or similar businesses for
the same or similar services, (b) that SEI or any Subsidiary may render services
to such Persons for compensation at the same rates generally charged by SEI or
such Subsidiary and (c) any purchase, sale, lease or exchange of property, real
or personal, otherwise permitted hereunder at market rates for similar
properties; provided that any such transaction in (a), (b) or (c) above must be
in the ordinary course of business and pursuant to the reasonable requirements
of SEI's (or any Subsidiary's) business consistent with past practice of SEI and
its Subsidiaries and upon fair and reasonable terms no less favorable to SEI (or
any Subsidiary) than would be obtained in a comparable arm's-length transaction
with a Person not an Affiliate.
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7.11 COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any ERISA Event which would result in a
liability on the part of SEI or any ERISA Affiliate to the PBGC or to any
Governmental Authority that could reasonably be expected to result in a Material
Adverse Effect; or
(b) permit the present value of all benefit liabilities under all Pension
Plans to exceed the current value of the assets of such Pension Plans allocable
to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in Section 302
of ERISA and Section 412 of the Code) with respect to any Pension Plan, whether
or not waived; or
(d) fail to make any contribution or payment to any Multiemployer Plan
which SEI or any ERISA Affiliate may be required to make under any agreement
relating to such Multiemployer Plan, or any law pertaining thereto; or
(e) engage, or permit SEI or any ERISA Affiliate to engage, in any
prohibited transaction under Section 406 of ERISA or Sections 4975 of the Code
for which a civil penalty pursuant to Section 502(i) of ERISA or a tax pursuant
to Section 4975 of the Code may be imposed; or
(f) permit the establishment of any defined benefit plan that is subject
to ERISA or Employee Benefit Plan providing post-retirement medical benefits
that is subject to ERISA, which establishment could result in liability to SEI
or any ERISA Affiliate or increase the obligation of SEI or any ERISA Affiliate
to a Multiemployer Plan; or
(g) establish or amend any Employee Benefit Plan, which establishment or
amendment could result in liability to SEI or any ERISA Affiliate that could
reasonably be expected to result in a Material Adverse Effect, or increase the
obligation of SEI or any ERISA Affiliate to a Multiemployer Plan that could
reasonably be expected to result in a Material Adverse Effect; or
(h) fail, or permit SEI or any ERISA Affiliate to fail, to establish,
maintain and operate each Employee Benefit Plan in compliance in all material
respects with the provisions of ERISA, the Code, all applicable Foreign Benefit
Laws and all other applicable laws and the regulations and interpretations
thereof.
7.12 FISCAL YEAR. Change its fiscal year unless (i) such change is, or is
effected in conjunction with, a change in the fiscal year required by applicable
law or by binding order of an applicable Governmental Authority, (ii) not later
than the earlier to occur of sixty (60) days prior to the effective date of any
such change in its fiscal year or fifteen (15) days after receiving notice of
the order or law requiring such change, SEI shall have given the Administrative
Agent notice of its intention (whether absolute or conditioned on the receipt of
the application to it of any such law or order) to make such change and
specifying such change, and (iii) not later than fifteen (15) days prior to any
such change in the fiscal year becoming effective the Borrowers and the Required
Lenders have entered into an appropriate amendment to this Agreement with
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respect to the covenants set forth in Article VII appropriately reflecting the
impact of such change of the fiscal year to the satisfaction of the Required
Lenders.
7.13 DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except (a) in connection with a merger or
consolidation permitted pursuant to Section 7.08, or (b) with respect to any
Subsidiary that at such time both (i) is inactive and (ii) has total assets with
a net book value not greater than $25,000.
7.14 LIMITATIONS ON SALES AND LEASEBACKS. Enter into any arrangement or
arrangements with any Person providing for the leasing by SEI or any Subsidiary
of real or personal property, whether now owned or hereafter acquired, in a
single transaction or series of related transactions, which has been or is to be
sold or transferred by SEI or any Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of SEI or any Subsidiary other
than any such sale and leaseback of that certain portion of ground bearing
municipal address ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
together with all improvements thereon.
7.15 CHANGE IN CONTROL. Cause, suffer or permit to exist or occur any
Change of Control.
7.16 NEGATIVE PLEDGE CLAUSES. Except for limitations contained in the
Senior Subordinated Indenture or, to the extent satisfactory to the
Administrative Agent in its reasonable discretion, in the documentation for the
Refinancing Indebtedness, enter into or cause, suffer or permit to exist any
agreement with any Person other than the Collateral Agent, the Administrative
Agent and the Lenders pursuant to this Agreement or any other Loan Documents
which prohibits or limits the ability of any of SEI or any Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired; provided that the foregoing
shall not apply to (i) customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, so long as
each such restriction and condition applies only to the Subsidiary that is to be
sold and such sale is a Disposition permitted under this Agreement, (ii)
restrictions or conditions imposed by any agreement relating to Indebtedness
secured by any Lien permitted by Section 7.04(f), (g) or (h) so long as each
such restriction or condition applies only to the property or assets on which a
Lien is, and is permitted to be, granted to secure such Indebtedness, (iii)
customary provisions in leases restricting the assignment thereof, and (iv)
restrictions governing Indebtedness permitted under Section 7.05(i) or 7.05(j)
that do not in any manner restrict the ability of any Borrower, any SEI
Guarantor or any PR Guarantor to grant first-priority Liens on any of their
properties or assets to secure the Obligations (including with respect to any
extension, renewal, replacement or refinancing thereof).
7.17 PREPAYMENTS, ETC., OF INDEBTEDNESS.
(a) Except for (i) refinancings permitted by Sections 7.05(f), (ii) a call
of, or tender for, all or substantially all of the Senior Subordinated Notes
using any combination of an issuance of Refinancing Indebtedness and Loans
hereunder (including pursuant to the utilization of the increase option provided
in Section 2.16), (iii) the prepayment of the Seller Financed
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Indebtedness, (iv) the prepayment of Acquired Indebtedness, and (v) other
prepayments of Indebtedness incurred after the Closing Date in an aggregate
principal amount during any fiscal year of SEI not to exceed $25,000,000 plus
any portion of prepayments permitted but not made in prior fiscal years, prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination
terms of, any Indebtedness; provided that SEI may purchase outstanding Senior
Subordinated Notes in the open market from time to time so long as (A) after
making each such purchase, no Default or Event of Default has occurred and is
continuing or would result from such purchase, (B) after making any purchase
that, when combined with all other such purchase made since the Closing Date,
exceeds an aggregate repurchase amount of $5,000,000 or any integral multiple of
$5,000,000 in excess thereof, SEI delivers to the Administrative Agent a
calculation showing that, after giving pro forma effect to such purchase, the
Consolidated Senior Secured Leverage Ratio is less than the maximum permitted by
Section 7.01(b), and (C) after making each such purchase, Available Liquidity is
not less than $25,000,000.
(b) Amend, modify or change in any manner any term or condition of any
Indebtedness other than amendments, modifications or changes (i) pursuant to
Section 7.05(f) or that otherwise meet the requirements in the proviso to clause
(f) of Section 7.05 (as if the amended, modified or changed terms or conditions
were contained in Indebtedness extending, renewing, refunding or refinancing
such Indebtedness), (ii) with respect to any Indebtedness incurred after the
Closing Date that was permitted to be incurred pursuant to Section 7.05 without
the approval of the terms thereof by the Administrative Agent, so long as, as so
amended, modified or changed, such Indebtedness would have been permitted to be
incurred without the approval of the Administrative Agent, or (iii) with respect
to Indebtedness incurred after the Closing Date the terms of which were required
by Section 7.05 to be approved by the Administrative Agent, so long as such
amendment, modification or change does not result in the terms of any such
Indebtedness being less favorable in any material respect to the Administrative
Agent and the Lenders.
7.18 LIMITATIONS ON UPSTREAMING. Enter into any agreement restricting or
limiting the payment of dividends or other distributions or the transfer of
assets from any Subsidiary to SEI or to any other Subsidiary owning Subsidiary
Securities of such Subsidiary.
7.19 DESIGNATED SENIOR DEBT AND PERMITTED DEBT. So long as (a) any of the
Senior Subordinated Notes remains outstanding, either (i) fail at any time to
maintain for any reason the Obligations as "Designated Senior Debt" (or a
similar term or concept) under the Senior Subordinated Indenture, the Senior
Subordinated Notes, or (ii) permit at any time the Obligations not to
constitute, or the Aggregate Commitments to exceed the maximum permitted amount
of, "Permitted Debt" as defined in Section 4.09 of the Senior Subordinated
Indenture, and (b) any other subordinated Indebtedness that is permitted by this
Agreement is outstanding, fail at any time to maintain for any reason the
Obligations as "Designated Senior Debt" (or a similar term or concept) under the
terms of such subordinated Indebtedness.
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ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, any fee due hereunder,
or any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Borrower fails to perform or observe (i) any
term, covenant or agreement contained in any of Section 6.07, 6.11, 6.12 or 6.19
or Article VII (other than Section 7.11), (ii) any term, covenant or agreement
set forth in Section 7.11 and such default is not cured within five (5) days of
its occurrence, or (iii) any term, covenant or agreement set forth in Section
6.01 and such default is not cured within fifteen (15) days of its occurrence;
or
(c) Other Defaults. Any Loan Party (i) fails to perform or observe any
other covenant, agreement or provision contained in this Agreement or the Notes
(other than as described in clauses (a) or (b) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of notice of
such default by the Responsible Officer from the Administrative Agent or an
Executive Officer of SEI becomes aware of such default, or (ii) fails in the
performance or observance of, or any other default shall occur under, any
covenant, agreement or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty, or Lien
in favor of the Collateral Agent, the Administrative Agent or any of the Lenders
or delivered to the Collateral Agent, the Administrative Agent or any of the
Lenders in connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and effect
(other than as expressly provided for hereunder or thereunder or with the
express written consent of the Administrative Agent), or if without the written
consent of the Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly provided for
hereunder or thereunder or with the express written consent of the
Administrative Agent); or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) Cross-Default. (i) SEI or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $10,000,000, or (B) fails to observe or perform any
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other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which SEI or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which SEI or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by SEI or such
Subsidiary as a result thereof is greater than $10,000,000; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) SEI or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against any property of any such Person with
an aggregate fair market value in excess of $5,000,000 and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against SEI or any Subsidiary a final
judgment or order for the payment of money in an aggregate amount exceeding
$5,000,000 (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), and (i) enforcement proceedings
are commenced by any creditor upon such judgment or order to attach or levy upon
the assets of SEI and its Subsidiaries to enforce any such judgment, or (ii)
there is a period of 30 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of SEI under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) SEI or
any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to
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its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $5,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Suspension or Operations. SEI or any Subsidiary shall, other than in
the ordinary course of business (as determined by past practices), suspend all
or any part of its operations material to the conduct of the business of SEI, on
a consolidated basis, for a period of more than 60 days.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that SEI Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States or any similar laws of Puerto Rico, the obligation of each Lender
to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of SEI to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
The Administrative Agent agrees to notify SEI promptly after taking any of the
actions set forth in clauses (a), (b) or (c) above, provided that the failure to
give such notice shall not affect the validity of any such action.
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8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest and Swap
Termination Values) payable to the Lenders and the L/C Issuer (including fees,
charges and disbursements of counsel to the respective Lenders and the L/C
Issuer and amounts payable under Article III), ratably among them in proportion
to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations (other
than Swap Termination Values), ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;
Sixth, to payment of Swap Termination Values owing to any Lender or any
Affiliate of any Lender arising under Related Swap Contracts that shall have
been terminated and as to which the Administrative Agent shall have received
notice of such termination and the Swap Termination Value thereof from the
applicable Lender or Affiliate of a Lender;
Seventh, to the payment of all other Obligations of the Loan Parties owing
under or in respect of the Loan Documents that are due and payable to the
Administrative Agent and the Lenders, or any of them, on such date, ratably
based on the respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the Lenders on such date; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE IX.
ADMINISTRATIVE AGENT AND COLLATERAL AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent and the Collateral Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent and the Collateral Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent and the Collateral Agent, respectively, by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Collateral Agent, the Lenders and the L/C Issuer,
and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent or
the Collateral Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent or the Collateral Agent and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent and
the Person serving as or the Collateral Agent hereunder in their respective
individual capacities. Each such Person and their respective Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
SEI or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent or the Collateral Agent hereunder and without any duty to
account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor the
Collateral Agent shall have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of
the foregoing, neither the Administrative Agent nor the Collateral Agent:
(a) shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent or the Collateral Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that neither the Administrative Agent nor the
Collateral Agent shall be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent or the
Collateral Agent to liability or that is contrary to any Loan Document or
applicable law; and
(c) shall, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, nor shall any such Person be
liable for the failure to disclose, any information relating to SEI or any
of its Affiliates that is communicated
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to or obtained by the Person serving as the Administrative Agent or the
Collateral Agent or any of their respective Affiliates in any capacity.
Neither the Administrative Agent nor the Collateral Agent shall be liable
for any action taken or not taken by it (i) with the consent or at the request
of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Administrative Agent or the Collateral Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Administrative Agent nor the Collateral Agent
shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent or the Collateral
Agent, as applicable by the Borrower, a Lender or the L/C Issuer, and notice to
the Administrative Agent or the Collateral Agent shall not constitute notice to
the other.
Neither the Administrative Agent nor the Collateral Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent or the Collateral Agent, as
applicable.
9.04 RELIANCE BY ADMINISTRATIVE AGENT AND COLLATERAL AGENT. The
Administrative Agent and the Collateral Agent shall each be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent and the
Collateral Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent and the Collateral Agent may consult with legal counsel
(who may be counsel for any Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent and the Collateral
Agent may each perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more
sub agents appointed by the Administrative Agent or the Collateral Agent, as
applicable. The Administrative Agent, the Collateral Agent
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and any such sub agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article IX shall apply to any such sub agent and
to the Related Parties of the Administrative Agent or the Collateral Agent and
any such sub agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent or Collateral Agent, as applicable.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation (both as Administrative Agent and as
Collateral Agent) to the Lenders, the L/C Issuer and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify SEI and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents, including its
duties as the Collateral Agent (except that in the case of any collateral
security held by the Administrative Agent or the Collateral Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent and Collateral Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent and Collateral
Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent and Collateral Agent
as provided for above in this Section. Upon the acceptance of a successor's
appointment as Administrative Agent and Collateral Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent and
Collateral Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section), both as
Administrative Agent and as Collateral Agent. The fees payable by SEI to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between SEI and such successor. After the
retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer, Swing Line
Lender and Collateral Agent. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer, Swing Line Lender and Collateral Agent, (b) the retiring L/C Issuer,
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Swing Line Lender and Collateral Agent shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangement satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT, COLLATERAL AGENT AND OTHER
LENDERS. Each Lender and the L/C Issuer acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Collateral Agent or any
other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and the L/C Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Collateral Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication Agent,
Documentation Agents or any other similar title listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, the Collateral Agent, a Lender or the L/C Issuer
hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer, the Administrative Agent and the Collateral
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer, the
Administrative Agent and the Collateral Agent and their respective agents
and counsel and all other amounts due the Lenders, the L/C Issuer, the
Administrative Agent and the Collateral Agent under Sections 2.04(i) and
(j), 2.10 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender, the L/C Issuer and the
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Collateral Agent to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, the L/C Issuer and the Collateral Agent, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.11
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender, the
L/C Issuer or the Collateral Agent any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent and the Collateral Agent, at
their option and in their discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan
Document, including as provided in Section 3A.04, or (iii) subject to
Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.04(f); and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder, including as provided in Section 3A.04.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific
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instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Revolving Credit Commitment of any Revolving
Lender (or reinstate any Revolving Credit Commitment terminated pursuant to
Section 8.02) without the written consent of such Revolving Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (but excluding mandatory prepayments, if any, which will only
require the vote of Required Lenders) of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.15 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders," "Required Revolving Lenders" or "Required Term Lenders," or any other
provision hereof, in each case to the extent such change would alter the number
or percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender directly affected thereby;
(g) except as expressly contemplated otherwise in this Agreement or the
other Loan Documents, release all or substantially all of the Guarantors or
Collateral from the applicable Loan Documents without the written consent of
each Lender;
(h) impose any greater restriction on the ability of any Lender to assign
any of its rights or obligations hereunder without the written consent of (i)
the Required Revolving Lenders and (ii) the Required Term Lenders, each voting
separately;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
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duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.06(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; (v) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto; and (vi) no amendment, waiver or
consent which has the effect of enabling a Borrower to satisfy any condition to
a Borrowing contained in Section 4.02 hereof which, but for such amendment,
waiver or consent would not otherwise be satisfied, shall be effective to
require the Revolving Lenders, the Swing Line Lender or any L/C Issuer to make
any additional Revolving Loan or Swing Line Loan, or to issue any additional or
renew any existing Letter of Credit, unless and until the Required Revolving
Lenders shall consent thereto. Notwithstanding anything to the contrary herein,
no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Revolving Credit
Commitment of, or the amount of the Term Loan held by, such Lender may not be
increased or extended without the consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to a Borrower, the Administrative Agent, the Collateral
Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier
number, electronic mail address or telephone number specified for such
Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic
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communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrowers, the Administrative
Agent, the Collateral Agent, the L/C Issuer and the Swing Line Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to SEI, the Administrative Agent, the Collateral Agent, the
L/C Issuer and the Swing Line Lender.
(d) Reliance by Administrative Agent, the Collateral Agent, L/C Issuer and
Lenders. The Administrative Agent, the Collateral Agent, the L/C Issuer and the
Lenders shall be entitled to rely and act upon any notices (including telephonic
Revolving Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of a Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Each Borrower shall indemnify
the Administrative Agent, the Collateral Agent, the L/C Issuer, each Lender and
the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of any Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer, the Administrative Agent or the Collateral Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable out of
pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out of
pocket expenses incurred by the Administrative Agent, the Collateral Agent, any
Lender or the L/C Issuer (including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Collateral Agent, any Lender or the
L/C Issuer), in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its
rights under this Section 10.04, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out of pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Indemnification by the Borrowers. The Borrowers shall indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by any Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to SEI or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by a Borrower or any other Loan
Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by a Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if such Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by
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them to the Administrative Agent or the Collateral Agent (or any sub-agent of
either of them), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Collateral Agent (or any such sub-agent)
or the L/C Issuer in its capacity as such, or against any Related Party of any
of the foregoing acting for the Administrative Agent or the Collateral Agent (or
any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.14(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no Borrower shall assert, and each Borrower hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent, the Collateral Agent and the L/C Issuer, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of any Borrower is made to the Administrative Agent, the Collateral Agent, the
L/C Issuer or any Lender, or the Administrative Agent, the Collateral Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent, the
Collateral Agent, the L/C Issuer or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding
under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such setoff had not occurred, and (b) each Lender and the L/C
Issuer severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders and the L/C
Issuer under clause
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(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither any
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Collateral Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Commitment and the
Revolving Loans (including for purposes of this subsection (b), participations
in L/C Obligations and in Swing Line Loans or of its Applicable Term Percentage
of the Term Loan at the time owing to it (such Lender's portion of Loans,
commitments and risk participations with respect to each of the Revolving Credit
Facility and the Term Loan Facility (each, an "Applicable Facility") being
referred to in this Section 10.06 as its "Applicable Share")) at the time owing
to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Applicable Share of the Applicable
Facility at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Applicable Share (which for this
purpose includes Loans outstanding thereunder) with respect to each
Applicable Facility, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than (A)
$2,500,000 with respect to the Revolving Credit Facility and (B)
$1,000,000 with respect to the Term Loan Facility, unless in either case
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, SEI otherwise consents (each such consent not
to be unreasonably withheld or delayed), provided that simultaneous
assignments by two or more related Approved Funds will be treated as one
assignment for purposes of the minimum assignment amount provided in this
subsection (b)(i);
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(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Applicable Facility, except that
this clause (ii) shall not (x) apply to rights in respect of Swing Line
Loans or (y) prohibit any Lender from assigning all or a portion of its
rights and obligations among the Applicable Facilities on a non-pro rata
basis;
(iii) any assignment of a Revolving Credit Commitment must be
approved by the Administrative Agent, the L/C Issuer and the Swing Line
Lender unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee);
(iv) other than in the case of an assignment by a Lender to an
Affiliate of such Lender, the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire, provided that only one such fee
shall be payable in connection with simultaneous assignments by or to two
or more related Approved Funds.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a
Revolving Lender or Term Lender, as applicable, under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon
request, each Borrower (at its expense) shall execute and deliver applicable
Notes to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section; provided that in the case of an assignment or transfer by a
Lender to an Affiliate of such Lender, in the event that such assignment or
transfer has not satisfied the provisions of this subsection, such assignment
shall nevertheless be treated as effective as between the assigning Lender and
the assignee Affiliate of such Lender, but shall not be effective with respect
to any other party hereto and shall be treated as a participation in accordance
with subsection (d) of this Section until such assignment or transfer complies
with the provisions of this subsection.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and (in each case, as
applicable) the Revolving Credit Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). Subject to the last proviso of Section
10.06(b) above
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with respect to assignments by a Lender to one of its Affiliates, which such
exception shall not impair any other party's ability to rely on the Register,
the entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrowers and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or a Borrower or any of the Borrowers'
respective Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and/or the Loans
(including such Lender's participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) each Borrower, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.15 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless SEI is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a
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Federal Reserve Bank; provided that no such pledge or assignment shall release
such Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.14(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrowers under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Revolving Loan by an SPC hereunder shall utilize the Revolving
Credit Commitment of the Granting Lender to the same extent, and as if, such
Revolving Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any
State thereof. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Borrower and the
Administrative Agent and with the payment of a processing fee of $1,000, assign
all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America
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may, (i) upon 30 days' notice to SEI and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days' notice to SEI, resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, SEI shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line
Lender hereunder; provided, however, that no failure by SEI to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in outstanding Swing Line Loans pursuant to Section
2.05(c).
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Collateral Agent, the Lenders and the L/C Issuer
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, including any pledgee pursuant to
Section 10.06(f), or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its
obligations, (g) with the consent of SEI or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section 10.07 or (y) becomes available to the Administrative Agent, the
Collateral Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than a Borrower.
For purposes of this Section, "Information" means all information received
from SEI or any Subsidiary relating to SEI or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by SEI or any Subsidiary, provided
that, in the case of information received from SEI or any Subsidiary after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section 10.07 shall be considered to have complied with its
obligation to do so if such Person has exercised the same
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degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency but
excluding segregated accounts containing only funds that are trust funds or
being held in escrow in lieu of trust and expressly so designated) at any time
held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of any Borrower or any other Loan Party against any and all of the obligations
of such Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of such Borrower or such Loan Party may be contingent or unmatured
or are owed to a branch or office of such Lender or the L/C Issuer different
from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
SEI and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
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10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent, the Collateral Agent, the L/C Issuer and each Lender,
regardless of any investigation made by the Administrative Agent, the Collateral
Agent, the L/C Issuer or any Lender or on their behalf and notwithstanding that
the Administrative Agent, the Collateral Agent, the L/C Issuer or any Lender may
have had notice or knowledge of any Default at the time of any Credit Extension,
and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If (i) any Lender (w) is subject to Section
3.02 and has not designated a different Lending Office for funding or booking
its Loans hereunder or assigned its rights and obligations hereunder to another
of its offices, branches or affiliates or otherwise eliminated the need for the
notice pursuant to Section 3.02 within 30 days of giving notice pursuant to
Section 3.02, (x) requests compensation under Section 3.04, (y) is a Defaulting
Lender or (z) refuses to consent to any waiver, consent or amendment requested
by the Borrowers pursuant to Section 10.01 that has received the written
approval of the Required Lenders, Required Revolving Lenders or Required Term
Lenders, as applicable, but also requires the approval of such Lender, or (ii)
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
then SEI may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, if any, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Loan Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts);
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(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling a Borrower to require such assignment and delegation
cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN
124
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) and the Collateral Agent hereby notifies each Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrowers, which information
includes the name and address of each Borrower and other information that will
allow such Lender or the Administrative Agent or the Collateral Agent, as
applicable, to identify each Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer, Chief
Financial Officer and Assistant Secretary
EMPRESAS ▇▇▇▇▇▇▇-CEMENTERIOS
By: ▇▇▇▇▇▇▇ Cementerios Puerto Rico Holding II, B.V.,
its Managing Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
EMPRESAS ▇▇▇▇▇▇▇-FUNERARIAS
By: ▇▇▇▇▇▇▇ Funerarias Puerto Rico Holding II, B.V.,
its Managing Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Signature Page 1
▇▇▇▇▇▇▇ Enterprises, Inc.
Credit Agreement
BANK OF AMERICA, N.A., as
Administrative Agent and Collateral Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGES OF LENDER BANKS (LISTED BELOW) INTENTIONALLY OMITTED.]
BANK OF AMERICA, N.A.
CALYON NEW YORK BRANCH
SUNTRUST BANK
BNP PARIBAS
▇.▇.▇▇▇▇ NATIONAL ASSOCIATION
CREDIT INDUSTRIEL ET COMMERCIAL
HIBERNIA BANK
NATIONAL CITY BANK
ALLIED IRISH BANK PLC
CIT LENDING SERVICES CORPORATION
FIRST DOMINION FUNDING I
Signature Page 2
▇▇▇▇▇▇▇ Enterprises, Inc.
Credit Agreement