EXECUTION COPY
EXHIBIT 10.1
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CREDIT AGREEMENT
Dated as of January 18, 2007
among
FIDELITY NATIONAL INFORMATION SERVICES, INC.
and CERTAIN SUBSIDIARIES,
as Borrowers,
The LENDERS Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer
and
BANK OF AMERICA, N.A.,
as Swing Line Lender
---------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
and
WACHOVIA CAPITAL MARKETS, LLC,
Joint Lead Arrangers and Joint Book Running Managers,
BANK OF AMERICA, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Co-Syndication Agents
and
BNP PARIBAS,
Documentation Agent
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms................................................................................... 1
Section 1.02. Other Interpretive Provisions................................................................... 35
Section 1.03. Accounting Terms................................................................................ 35
Section 1.04. Rounding........................................................................................ 36
Section 1.05. References to Agreements and Laws............................................................... 36
Section 1.06. Times of Day.................................................................................... 36
Section 1.07. Timing of Payment or Performance................................................................ 36
Section 1.08. Exchange Rates; Currency Equivalents............................................................ 36
Section 1.09. Additional Alternative Currencies............................................................... 37
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Committed Loans............................................................................. 38
Section 2.02. Borrowings, Conversions and Continuations of Committed Loans.................................... 39
Section 2.03. Bid Loans....................................................................................... 41
Section 2.04. Letters of Credit............................................................................... 43
Section 2.05. Swing Line Loans................................................................................ 52
Section 2.06. Prepayments..................................................................................... 55
Section 2.07. Termination or Reduction of Commitments......................................................... 58
Section 2.08. Repayment of Loans.............................................................................. 59
Section 2.09. Interest........................................................................................ 60
Section 2.10. Fees............................................................................................ 60
Section 2.11. Computation of Interest and Fees................................................................ 61
Section 2.12. Evidence of Indebtedness........................................................................ 61
Section 2.13. Payments Generally.............................................................................. 62
Section 2.14. Sharing of Payments............................................................................. 64
Section 2.15. Designated Borrowers............................................................................ 65
Section 2.16. Increase in Commitments......................................................................... 67
ARTICLE 3
TAXES, INCREASED COSTS AND ILLEGALITY
Section 3.01. Taxes........................................................................................... 69
Section 3.02. Illegality...................................................................................... 71
Section 3.03. Inability to Determine Rates.................................................................... 71
Section 3.04. Increased Cost and Reduced Return............................................................... 72
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PAGE
Section 3.05. Capital Adequacy................................................................................ 72
Section 3.06. Reserves on Eurocurrency Rate Loans............................................................. 72
Section 3.07. Funding Losses.................................................................................. 73
Section 3.08. Matters Applicable to All Requests for Compensation............................................. 73
Section 3.09. Replacement of Lenders Under Certain Circumstances.............................................. 75
Section 3.10. Survival........................................................................................ 76
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions of Initial Credit Extension.......................................................... 76
Section 4.02. Conditions to All Credit Extensions............................................................. 78
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Existence, Qualification and Power; Compliance with Laws........................................ 79
Section 5.02. Authorization; No Contravention................................................................. 79
Section 5.03. Governmental Authorization; Other Consents...................................................... 79
Section 5.04. Binding Effect.................................................................................. 80
Section 5.05. Financial Statements; No Material Adverse Effect................................................ 80
Section 5.06. Litigation...................................................................................... 80
Section 5.07. Ownership of Property; Liens.................................................................... 81
Section 5.08. [Intentionally Omitted]......................................................................... 81
Section 5.09. Taxes........................................................................................... 81
Section 5.10. ERISA Compliance................................................................................ 81
Section 5.11. Subsidiaries; Equity Interests.................................................................. 82
Section 5.12. Margin Regulations; Investment Company Act...................................................... 82
Section 5.13. Disclosure...................................................................................... 82
Section 5.14. Solvency........................................................................................ 82
ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.01. Financial Statements............................................................................ 83
Section 6.02. Certificates; Other Information................................................................. 84
Section 6.03. Notices......................................................................................... 86
Section 6.04. Payment of Obligations.......................................................................... 86
Section 6.05. Preservation of Existence, Etc.................................................................. 86
Section 6.06. Maintenance of Properties....................................................................... 86
Section 6.07. Maintenance of Insurance........................................................................ 86
Section 6.08. Compliance with Laws............................................................................ 87
Section 6.09. Books and Records............................................................................... 87
Section 6.10. Inspection Rights............................................................................... 87
Section 6.11. Use of Proceeds................................................................................. 87
Section 6.12. Covenant to Guarantee Obligations............................................................... 87
Section 6.13. [Intentionally Omitted]......................................................................... 88
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PAGE
Section 6.14. Designation of Subsidiaries.................................................................... 88
ARTICLE 7
NEGATIVE COVENANTS
Section 7.01. Liens........................................................................................... 89
Section 7.02. Investments..................................................................................... 92
Section 7.03. Indebtedness.................................................................................... 95
Section 7.04. [Intentionally Omitted]......................................................................... 97
Section 7.05. Dispositions.................................................................................... 97
Section 7.06. Restricted Payments............................................................................. 99
Section 7.07. [Intentionally Omitted]......................................................................... 99
Section 7.08. Transactions with Affiliates.................................................................... 100
Section 7.09. Burdensome Agreements........................................................................... 100
Section 7.10. Financial Covenants............................................................................. 101
Section 7.11. Prepayments, Etc. of Indebtedness............................................................... 101
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default............................................................................... 101
Section 8.02. Remedies Upon Event of Default.................................................................. 103
Section 8.03. Application of Funds............................................................................ 104
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of Agents......................................................... 105
Section 9.02. Delegation of Duties............................................................................ 105
Section 9.03. Liability of Agents............................................................................. 105
Section 9.04. Reliance by Agents.............................................................................. 106
Section 9.05. Notice of Default............................................................................... 106
Section 9.06. Credit Decision; Disclosure of Information by Agents............................................ 107
Section 9.07. Indemnification of Agents....................................................................... 107
Section 9.08. Agents in their Individual Capacities........................................................... 108
Section 9.09. Successor Agents................................................................................ 108
Section 9.10. Administrative Agent May File Proofs of Claim................................................... 109
Section 9.11. Guaranty Matters................................................................................ 110
Section 9.12. Other Agents; Arrangers and Managers............................................................ 110
Section 9.13. Appointment of Supplemental Administrative Agents............................................... 110
ARTICLE 10
GUARANTY
Section 10.01. Guaranty....................................................................................... 111
Section 10.02. Contribution................................................................................... 111
Section 10.03. Guaranty Absolute.............................................................................. 111
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Section 10.04. Waiver and Acknowledgments..................................................................... 112
Section 10.05. Subrogation.................................................................................... 113
Section 10.06. Payment Free and Clear of Taxes................................................................ 114
Section 10.07. No Waiver; Remedies............................................................................ 114
Section 10.08. Right of Set-Off............................................................................... 114
Section 10.09. Continuing Guaranty; Assignments under the Credit Agreement.................................... 114
Section 10.10. Subordination of Certain Intercompany Indebtedness............................................. 115
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc................................................................................ 115
Section 11.02. Notices and Other Communications; Facsimile Copies............................................. 117
Section 11.03. No Waiver; Cumulative Remedies................................................................. 119
Section 11.04. Attorney Costs, Expenses and Taxes............................................................. 119
Section 11.05. Indemnification by the Borrowers............................................................... 119
Section 11.06. Payments Set Aside............................................................................. 121
Section 11.07. Assigns........................................................................................ 121
Section 11.08. Successors..................................................................................... 125
Section 11.09. Confidentiality................................................................................ 125
Section 11.10. Set-off........................................................................................ 126
Section 11.11. Interest Rate Limitation....................................................................... 126
Section 11.12. Counterparts................................................................................... 126
Section 11.13. Integration.................................................................................... 127
Section 11.14. Survival of Representations and Warranties..................................................... 127
Section 11.15. Severability................................................................................... 127
Section 11.16. Tax Forms...................................................................................... 127
Section 11.17. Governing Law.................................................................................. 130
Section 11.18. Waiver of Right to Trial by Jury............................................................... 131
Section 11.19. Binding Effect................................................................................. 131
Section 11.20. No Implied Duties.............................................................................. 131
Section 11.21. USA Patriot Act Notice........................................................................ 131
Section 11.22. Judgment Currency............................................................................. 132
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SCHEDULES
1.01A Mandatory Cost Formulae
1.01B Closing Date Guarantors
1.01C Management Agreements
1.01D Unrestricted Subsidiaries
2.01 Commitments
5.06 Litigation
5.11 Subsidiaries
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.08 Transactions with Affiliates
7.09 Existing Restrictions
11.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B-1 Bid Request
B-2 Competitive Bid
C Swing Line Loan Notice
D-1 Term Note
D-2 US Dollar Revolving Credit Note
D-3 Multicurrency Revolving Credit Note
E Compliance Certificate
F Assignment and Assumption
G Subsidiary Guaranty
H Designated Borrower Request and Assumption Agreement
I Designated Borrower Notice
J Subordination Terms
CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of January 18,
2007, among FIDELITY NATIONAL INFORMATION SERVICES, INC., a Georgia corporation
(the "COMPANY"), certain Subsidiaries of the Company party hereto pursuant to
Section 2.15 (each, a "DESIGNATED BORROWER" and, together with the Company, the
"BORROWERS" and, each, a "BORROWER") each lender from time to time party hereto
(collectively, the "LENDERS" and individually, a "LENDER"), JPMORGAN CHASE BANK,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and BANK OF
AMERICA, N.A., as Swing Line Lender.
RECITALS
The Company has requested that (a) on the Closing Date the Term Lenders
make a Term Loan to the Company in an aggregate principal amount of
$2,100,000,000 and (b) from time to time, the Revolving Credit Lenders lend to
the Borrowers and the L/C Issuer issue Letters of Credit for the account of the
Borrowers and their Subsidiaries under a $900,000,000 revolving credit facility
(comprised of a $735,000,000 multicurrency tranche and a $165,000,000 U.S.
dollar-only tranche) for the Borrowers and their Subsidiaries. The applicable
Lenders have indicated their willingness to lend and the L/C Issuer has
indicated its willingness to so issue Letters of Credit, in each case, on the
terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"1934 ACT" means the Securities Exchange Act of 1934.
"ABSOLUTE RATE" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"ABSOLUTE RATE LOAN" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"ADDITIONAL ALTERNATIVE CURRENCY" has the meaning set forth in Section
2.01(b).
"ADDITIONAL REVOLVING CREDIT COMMITMENTS" has the meaning specified in
Section 2.16(c).
"ADDITIONAL TERM LOANS" has the meaning specified in Section 2.16(b).
"ADDITIONAL TERM LOAN TRANCHE" has the meaning specified in Section
2.16(b).
"ADDITIONAL COMMITMENTS EFFECTIVE DATE" has the meaning specified in
Section 2.16(e).
"ADMINISTRATIVE AGENT" means JPMCB 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 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Company 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. "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.
"AGENT-RELATED PERSONS" means the Administrative Agent, together with its
Affiliates, and the officers, directors, employees, agents and attorneys-in-fact
of such Persons.
"AGENTS" means, collectively, the Administrative Agent, the Co-Syndication
Agents, the Documentation Agent and the Supplemental Administrative Agents (if
any).
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGGREGATE REVOLVING CREDIT COMMITMENTS" means, at any time, the aggregate
amount of the Revolving Credit Commitments of the Revolving Credit Lenders at
such time.
"AGREEMENT" means this Credit Agreement.
"ALTERNATIVE CURRENCY" means each of Euro, Sterling, Australian Dollar and
each other currency (other than Dollars) that is approved in accordance with
Section 1.09.
"ALTERNATIVE CURRENCY EQUIVALENT" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.
"APPLICABLE MARGIN" means a percentage per annum equal to: (a) with
respect to any Term Loans, (i) until the Compliance Certificate is received by
the Administrative Agent pursuant to Section 6.02(b) for the fiscal quarter
ending December 31, 2006, 1.00% if such Loans are Eurocurrency Loans and 0% if
such Loans are Base Rate Loans and (ii) thereafter, the
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following percentages per annum based upon the Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(b):
Term Loans
------------------------------------------------------------------------
Pricing Level Leverage Ratio Eurocurrency Rate Base Rate
------------ ------------------------- ----------------- ---------
1 < or = 2.0:1 0.75% 0%
2 > 2.0:1 and < or = 2.5:1 0.875% 0%
3 > 2.5:1 and < or = 3.25:1 1.00% 0%
4 > 3.25:1 1.25% 0.25%
and (b) with respect to (x) any Revolving Credit Loans, (y) the facility fee to
be paid pursuant to Section 2.10(a) (as used below, the "FACILITY FEE") and (z)
the Letter of Credit fee (the "L/C FEE"), (i) until the Compliance Certificate
is received by the Administrative Agent pursuant to Section 6.02(b) for the
fiscal quarter ending December 31, 2006, 0.80% if such Loans are Eurocurrency
Loans and 0% if such Loans are Base Rate Loans, the Facility Fee shall be 0.20%
and the L/C Fee shall be 0.80% and (ii) thereafter, the following percentages
per annum based upon the Leverage Ratio as set forth below:
Revolving Credit Facility
---------------------------------------------------------------------------------------------
Eurocurrency Rate/
Pricing Level Leverage Ratio L/C Fee Base Rate Facility Fee
------------- ------------------------- ------------------ --------- -------------
1 < or = 2.0:1 0.60% 0% 0.15%
2 > 2.0:1 and < or = 2.5:1 0.70% 0% 0.175%
3 > 2.5:1 and < or = 3.25:1 0.80% 0% 0.20%
4 > 3.25:1 1.00% 0% 0.25%
Any increase or decrease in the Applicable Margin resulting from a change in the
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section
6.02(b); provided that at the option of the Administrative Agent or the Required
Lenders, Pricing Level 4 shall apply (1) as of the first Business Day after the
date on which a Compliance Certificate was required to have been delivered but
was not delivered, and shall continue to so apply to and including the date on
which such Compliance Certificate is so delivered (and thereafter the Pricing
Level otherwise determined in accordance with this definition shall apply) and
(2) as of the first Business Day after an Event of Default set forth in Section
8.01(a) or (f) shall have occurred and be continuing, and shall continue to so
apply to but excluding the date on which such Event of Default is cured or
waived (and thereafter the Pricing Level otherwise determined in accordance with
this definition shall apply).
"APPLICABLE TIME" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
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"APPLICANT BORROWER" has the meaning specified in Section 2.15(a).
"APPROPRIATE LENDER" means, at any time, (a) with respect to Loans of any
Class, the Lenders of such Class, (b) with respect to the Letter of Credit
Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.04, the Multicurrency Revolving Credit Lenders, (c) with
respect to the Swing Line Facility, (i) the Swing Line Lenders and (ii) if any
Swing Line Loans are outstanding pursuant to Section 2.05, the Multicurrency
Revolving Credit Lenders and (d) with respect to Revolving Credit Loans of any
Tranche, the Lenders of such Tranche.
"APPROVED FOREIGN BANK" has the meaning specified in clause (k) of the
definition of "Cash Equivalents".
"APPROVED FUND" means any Fund that is administered, advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers, advises or manages a Lender.
"ARRANGERS" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of America Securities
LLC and Wachovia Capital Markets, LLC, each in its capacity as a joint lead
arranger and joint book running manager of the Facilities.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit F.
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any
Capitalized 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.
"AUSTRALIAN DOLLAR" means the lawful currency of the Commonwealth of
Australia.
"AUSTRALIAN DOLLAR SUBLIMIT" means an amount equal to $175,000,000. The
Australian Dollar Sublimit is part of, and not in addition to, the Multicurrency
Revolving Credit Facility.
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in Section
2.04(b)(iii).
"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 JPMCB as its
"prime rate." The "prime rate" is a rate set by JPMCB based upon various factors
including JPMCB's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
4
which may be priced at, above, or below such announced rate. Any change in such
rate announced by JPMCB shall take effect at the opening of business on the day
specified in the public announcement of such change.
"BASE RATE COMMITTED LOAN" means a Committed Loan that is a Base Rate
Loan.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"BID BORROWING" means a borrowing consisting of simultaneous Bid Loans of
the same Type from each of the Lenders whose offer to make one or more Bid Loans
as part of such borrowing has been accepted under the auction bidding procedures
described in Section 2.03.
"BID LOAN" has the meaning specified in Section 2.03(a).
"BID LOAN LENDER" means, in respect of any Bid Loan, the Lender making
such Bid Loan to the Borrower.
"BID REQUEST" means a written request for one or more Bid Loans
substantially in the form of Exhibit B-1.
"BORROWERS" has the meaning specified in the introductory paragraph to
this Agreement.
"BORROWER MATERIALS" has the meaning specified in Section 6.02.
"BORROWING" means a Revolving Credit Borrowing, a Bid Borrowing, a Swing
Line Borrowing or a Term Borrowing, as the context may require.
"BRAZILIAN JOINT VENTURE" means that joint venture among Certegy LTDA,
Banco Bradesco S.A. and Banco ABN AMRO Real S.A. and any future members.
"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 with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
5
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"CAPITAL LEASING" means FNF Capital Leasing, Inc.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases on a balance sheet of the
lessee.
"CASH COLLATERAL" has the meaning specified in Section 2.04(g).
"CASH COLLATERAL ACCOUNT" means a deposit account at the Administrative
Agent in the name of the Administrative Agent and under the sole dominion and
control of the Administrative Agent, and otherwise established in a manner
satisfactory to the Administrative Agent.
"CASH COLLATERALIZE" has the meaning specified in Section 2.04(g).
"CASH EQUIVALENTS" means any of the following types of Investments, to the
extent owned by the Company or any of its Restricted Subsidiaries:
(a) operating deposit accounts maintained by the Restricted
Companies;
(b) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof having
maturities of not more than 12 months from the date of acquisition thereof
or other durations approved by the Administrative Agent;
(c) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality
thereof having maturities of not more than 12 months from the date of
acquisition thereof or other durations approved by the Administrative
Agent and, at the time of acquisition, having a rating of at least "A-2"
or "P-2" (or long-term ratings of at least "A3" or "A-") from either S&P
or Moody's, or, with respect to municipal bonds, a rating of at least MIG
2 or VMIG 2 from Moody's (or the equivalent thereof);
(d) commercial paper issued by any Lender that is a commercial bank
or any bank holding company owning any Lender;
6
(e) commercial paper maturing not more than 12 months after the date
of creation thereof or other durations approved by the Administrative
Agent and, at the time of acquisition, having a rating of at least A-1 or
P-1 from either S&P or Moody's and commercial paper maturing not more than
90 days after the creation thereof and, at the time of acquisition, having
a rating of at least A-2 or P-2 from either S&P or Moody's;
(f) domestic and eurodollar certificates of deposit or bankers'
acceptances maturing no more than one year after the date of acquisition
thereof or other durations approved by the Administrative Agent which are
either issued by any Lender or any other banks having combined capital and
surplus of not less than $100,000,000 (or in the case of foreign banks,
the dollar equivalent thereof) or are insured by the Federal Deposit
Insurance Corporation for the full amount thereof;
(g) repurchase agreements with a term of not more than 30 days for,
and secured by, underlying securities of the type without regard to
maturity described in clauses (b), (c) and (f) above entered into with any
bank meeting the qualifications specified in clause (f) above or
securities dealers of recognized national standing;
(h) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types with regard to maturity of securities described in clauses (b)
through (g) above;
(i) asset-backed securities and corporate securities that are
eligible for inclusion in money market funds;
(j) fixed maturity securities which are rated BBB- and above by S&P
or Baa3 and above by Moody's; provided that the aggregate amount of
Investments by any Person in fixed maturity securities which are rated
BBB+, BBB or BBB- by S&P or ▇▇▇▇, ▇▇▇▇ or Baa3 by Moody's shall not exceed
10% of the aggregate amount of Investments in fixed maturity securities by
such Person; and
(k) solely with respect to any Foreign Subsidiary, non-Dollar
denominated (i) certificates of deposit of, bankers acceptances of, or
time deposits with, any commercial bank which is organized and existing
under the laws of the country in which such Foreign Subsidiary maintains
its chief executive office and principal place of business provided such
country is a member of the Organization for Economic Cooperation and
Development, and whose short-term commercial paper rating from S&P is at
least "A-1" or the equivalent thereof or from ▇▇▇▇▇'▇ is at least "P-1" or
the equivalent thereof (any such bank being an "APPROVED FOREIGN BANK")
and maturing within 12 months of the date of acquisition or other
durations approved by the Administrative Agent and (ii) (A) equivalents of
demand deposit accounts which are maintained with an Approved Foreign Bank
or (B) other temporary investments (with maturities less than 12 months or
other durations approved by the Administrative Agent) of a non-speculative
nature which are made with preservation of principal as the primary
objective and in each case in accordance with normal investment practices
for cash management of such Foreign Subsidiaries.
7
"CASH MANAGEMENT PRACTICES" means the cash, Cash Equivalent and short-term
investment management practices of the Consolidated Companies as approved by the
board of directors or chief financial officer of the Company from time to time,
including any Indebtedness of the Consolidated Companies having a maturity of 92
days or less representing borrowings from any financial institution with which
the Consolidated Companies have a depository or other investment relationship in
connection with such practices (or any Affiliate of such financial institution),
which borrowings may be secured by the cash, Cash Equivalents and other
short-term investments purchased by the relevant Consolidated Company with the
proceeds of such borrowings.
"CASH ON HAND" means, on any day, the sum of the amount of cash, Cash
Equivalents and other short-term investments of the Consolidated Companies as
set forth on the balance sheet of the Consolidated Companies on the last day of
each calendar month ending during the four fiscal quarters most recently ended
on or prior to such day, divided by twelve (it being understood that such amount
shall exclude in any event any cash and Cash Equivalents identified on such
balance sheet as "restricted" or otherwise subject to a security interest in
favor of any other Person (other than non-consensual Liens permitted under
Section 7.01).
"CASUALTY EVENT" means any event that gives rise to the receipt by the
Company or Restricted Subsidiary of any insurance proceeds or condemnation
awards in respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or real
property.
"CERTEGY MERGER" means the merger effected pursuant to the Agreement and
Plan of Merger among Certegy Inc., C Co Merger Sub, LLC and Fidelity National
Information Services, Inc., dated as of September 14, 2005.
"CHANGE OF CONTROL" means the earliest to occur of (a) (i) a "person" or
"group" (as such terms are used in Sections 13(d) and 14(d)(2) of the 1934 Act,
but excluding any employee benefit plan of such person and its subsidiaries, and
any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan), shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the 1934 Act), directly or
indirectly, of more than 35% of the then outstanding voting stock of the
Company, and (ii) during any period of twelve consecutive months, the board of
directors of the Company shall cease to consist of a majority of the Continuing
Directors; and
(b) any "Change of Control" (or any comparable term) in any document
pertaining to any Permitted Subordinated Indebtedness with an aggregate
outstanding principal amount in excess of the Threshold Amount.
"CLASS" (a) when used with respect to Lenders, refers to whether such
Lenders are Revolving Credit Lenders or Term Lenders, (b) when used with respect
to Commitments, refers to whether such Commitments are Revolving Credit
Commitments or Term Commitments and (c) when used with respect to Loans or a
Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing,
are Revolving Credit Loans or Term Loans.
8
"CLOSING DATE" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 11.01.
"CLOSING DATE FORECASTS" has the meaning specified in Section 5.05(c).
"CODE" means the U.S. Internal Revenue Code of 1986.
"COMMITMENT" means a Term Commitment or Revolving Credit Commitment, as
the context may require.
"COMMITTED BORROWING" means a borrowing consisting of simultaneous
Committed Loans of the same Type and Class, in the same currency and, in the
case of Eurocurrency Rate Committed Loans, having the same Interest Period.
"COMMITTED LOAN" means a Term Loan or a Revolving Credit Loan.
"COMMITTED LOAN NOTICE" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other or (c) a continuation
of Eurocurrency Rate Committed Loans, pursuant to Section 2.02, which, if in
writing, shall be substantially in the form of Exhibit A.
"COMPANY" has the meaning specified in the introductory paragraph of this
Agreement.
"COMPENSATION PERIOD" has the meaning specified in Section 2.13(b)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
Exhibit E.
"CONSOLIDATED COMPANIES" means the Company and its Consolidated
Subsidiaries.
"CONSOLIDATED EBITDA" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount
which, in the determination of Consolidated Net Income for such period, has been
deducted for, without duplication,
(i) total interest expense,
(ii) income, franchise and similar taxes,
(iii) depreciation and amortization expense (including amortization
of intangibles, goodwill and organization costs),
(iv) letter of credit fees,
(v) non-cash expenses resulting from any employee benefit or
management compensation plan or the grant of stock and stock options to
employees of the Company or any of its Subsidiaries pursuant to a written
plan or agreement or the treatment of such options under variable plan
accounting,
9
(vi) all extraordinary charges,
(vii) non-cash amortization (or write offs) of financing costs
(including debt discount, debt issuance costs and commissions and other
fees associated with Indebtedness, including the Loans) of such Person and
its Subsidiaries,
(viii) cash expenses incurred in connection with the Transaction,
the Certegy Merger, the Reorganization or, to the extent permitted
hereunder, any Investment permitted under Section 7.02 (including any
Permitted Acquisition), Equity Issuance or Debt Issuance (in each case,
whether or not consummated),
(ix) any losses realized upon the Disposition of property or assets
outside of the ordinary course of business,
(x) to the extent actually reimbursed, expenses incurred to the
extent covered by indemnification provisions in any agreement in
connection with a Permitted Acquisition,
(xi) to the extent covered by insurance, expenses with respect to
liability or casualty events or business interruption,
(xii) management fees permitted under Section 7.08(d),
(xiii) any non-cash purchase accounting adjustment and any non-cash
write-up, write-down or write-off with respect to re-valuing assets and
liabilities in connection with the Certegy Merger, the Reorganization or
any Investment permitted under Section 7.02 (including any Permitted
Acquisition),
(xiv) non-cash losses from Joint Ventures and non-cash minority
interest reductions,
(xv) fees and expenses in connection with exchanges or refinancings
permitted by Section 7.11,
(xvi) (A) non-cash, non-recurring charges with respect to employee
severance, (B) other non-cash, non-recurring charges so long as such
charges described in this clause (B) do not result in a cash charge in a
future period (except as permitted under clause (xvi)(C)) and (C)
non-recurring charges other than those referred to in clauses (A) and (B)
so long as such charges described in this clause (C) do not exceed
$30,000,000 during any fiscal year, and
(xvii) other expenses and charges of such Person and its
Subsidiaries reducing Consolidated Net Income which do not represent a
cash item in such period or any future period; minus
(c) an amount which, in the determination of Consolidated Net Income, has
been included for
10
(i) (A) non-cash gains (other than with respect to cash actually
received) and (B) all extraordinary gains, and
(ii) any gains realized upon the Disposition of property outside of
the ordinary course of business, plus/minus
(d) unrealized losses/gains in respect of Swap Contracts,
all as determined in accordance with GAAP.
"CONSOLIDATED INTEREST CHARGES" means, as of any date for the applicable
period ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the amount payable with respect to such period in respect of
(a) total interest expense payable in cash plus pay-in-kind interest in respect
of Indebtedness (other than Specified Non-Recourse Indebtedness) of the type set
forth in clause (a) of the definition thereof (including the interest component
under Capitalized Leases, but excluding, to the extent included in interest
expense, (i) fees and expenses associated with the consummation of the
Transaction, (ii) annual agency fees paid to the Administrative Agent, (iii)
costs associated with obtaining Swap Contracts, (iv) fees and expenses
associated with any Investment permitted under Section 7.02, Equity Issuance or
Debt Issuance (whether or not consummated) and (v) amortization of deferred
financing costs), minus (b) interest income with respect to Cash on Hand of such
Person and its Subsidiaries earned during such period, in each case as
determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, net income (excluding, without duplication, (i)
extraordinary items and (ii) any amounts attributable to Investments in any
Joint Venture to the extent that (A) such amounts were not earned by such Joint
Venture during the applicable period, (B) there exists any legal or contractual
encumbrance or restriction on the ability of such Joint Venture to pay dividends
or make any other distributions in cash on the Equity Interests of such Joint
Venture held by such Person and its Subsidiaries, but only to the extent so
encumbered or restricted or (C) such Person does not have the right to receive
or the ability to cause to be distributed its pro rata share of all earnings of
such Joint Venture) as determined in accordance with GAAP; provided that
Consolidated Net Income for any such period shall not include (w) the cumulative
effect of a change in accounting principles during such period, (x) any net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness, (y) any
non-cash charges resulting from ▇▇▇▇-to-market accounting relating to Equity
Interests and (z) any non-cash impairment charges resulting from the application
of Statement of Financial Accounting Standards No. 142 - Goodwill and Other
Intangibles and No. 144 - Accounting for the Impairment or Disposal of
Long-Lived Assets and the amortization of intangibles including arising pursuant
to Statement of Financial Accounting Standards No. 141 - Business Combinations.
"CONSOLIDATED SHAREHOLDERS' EQUITY" means, as of any date of
determination, the consolidated shareholders' equity of the Company and its
Subsidiaries that would be reported as shareholders' equity on a consolidated
balance sheet of the Company and its Subsidiaries prepared as of such date in
accordance with GAAP.
11
"CONSOLIDATED SUBSIDIARIES" means, with respect to any Person at any time,
all Subsidiaries of such Person that would be consolidated in the financial
statements of such Person on such date prepared in accordance with GAAP, but
excluding any such consolidated Subsidiary of such Person that would not be so
consolidated but for the effect of FIN 46.
"CONTINUING DIRECTORS" shall mean the directors of the Company on the
Closing Date, and each other director, if, in each case, such other directors'
nomination for election to the board of directors of the Company is recommended
by a majority of the then Continuing Directors.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" has the meaning specified in the definition of "Affiliate."
"CO-SYNDICATION AGENTS" means Bank of America and Wachovia Bank, as
co-syndication agents under this Agreement.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"DEBT ISSUANCE" means the issuance by any Person and its Subsidiaries of
any Indebtedness for borrowed money.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, general assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" 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 an interest rate equal to (a) the Base Rate plus (b)
the Applicable Margin, if any, applicable to Base Rate Loans plus (c) 2.0% per
annum; provided that with respect to a Eurocurrency Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Margin and any Mandatory Cost) otherwise applicable to such Loan plus 2.0% per
annum, in each case, to the fullest extent permitted by applicable Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans, 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.
12
"DESIGNATED BORROWER" has the meaning specified in the introductory
paragraph hereto.
"DESIGNATED BORROWER NOTICE" has the meaning specified in Section 2.15(a).
"DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT" has the meaning
specified in Section 2.15(a).
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition of any property by any Person (including any sale and
leaseback transaction and any sale of Equity Interests, but excluding any
issuance by such Person of its own Equity Interests), 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.
"DISQUALIFIED EQUITY INTERESTS" means any Equity Interest which, by its
terms (or by the terms of any security or other Equity Interests into which it
is convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, (b) is redeemable at the option of the
holder thereof, in whole or in part, (c) provides for the scheduled payments of
dividends in cash, or (d) is or becomes convertible into or exchangeable for
Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests, in each case, prior to the date that is 91 days after the
Maturity Date.
"DOCUMENTATION AGENT" means BNP Paribas, as documentation agent under this
Agreement.
"DOLLAR" and "$" mean lawful money of the United States.
"DOLLAR EQUIVALENT" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of Dollars with such Alternative
Currency.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the
laws of the United States, any state thereof or the District of Columbia.
"ELIGIBLE ASSIGNEE" means (a) in the case of any assignment of a Term
Loan, (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and
(iv) any other Person (other than a natural person) approved by (A) the
Administrative Agent and (B) unless an Event of Default has occurred and is
continuing under Section 8.01(a) or 8.01(f), the Company (each such approval not
to be unreasonably withheld or delayed) and (b) in the case of any assignment of
a Revolving Credit Commitment, any Person (other than a natural person) approved
by (A) the Administrative Agent, (B) the L/C Issuer, (C) the Swing Line Lenders
and (D) unless (x) such assignment is to a Lender, an Affiliate of a Lender or
an Approved Fund or (y) an Event of Default has occurred and is continuing under
Section 8.01(a) or 8.01(f), the Company (each such approval not to be
unreasonably withheld or delayed).
13
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU LEGISLATION" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"ENVIRONMENTAL LAWS" means any and all applicable Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any Restricted Company 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,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase,
acquisition or exchange from such Person of any of the foregoing (including
through convertible securities).
"EQUITY ISSUANCE" means any issuance for cash by any Person and its
Subsidiaries to any other Person of (a) its Equity Interests, (b) any of its
Equity Interests pursuant to the exercise of options or warrants, (c) any of its
Equity Interests pursuant to the conversion of any debt securities to equity or
(d) any options or warrants relating to its Equity Interests. A Disposition
shall not be deemed to be an Equity Issuance.
"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 Company 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 (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by a Borrower or any ERISA
14
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums not yet due or premiums due but not yet delinquent under Section 4007
of ERISA, upon the Company or any ERISA Affiliate.
"EURO" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"EUROCURRENCY BID MARGIN" means the margin above or below the Eurocurrency
Rate to be added to or subtracted from the Eurocurrency Rate, which margin shall
be expressed in multiples of 1/100th of one basis point.
"EUROCURRENCY MARGIN BID LOAN" means a Bid Loan that bears interest at a
rate based upon the Eurocurrency Rate.
"EUROCURRENCY RATE" means, for any Interest Period with respect to any
Eurocurrency Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time), for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding clause (a) is not
available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in the relevant currency for
delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by JPMCB and with a term equivalent to such Interest Period
would be offered by JPMCB's London Branch to major banks in the London or
other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period.
"EUROCURRENCY RATE COMMITTED LOAN" means a Committed Loan that bears
interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Committed
Loans that are Revolving Credit Loans may be denominated in Dollars or in an
Alternative Currency. Eurocurrency Rate Committed Loans that are Term Loans may
be denominated only in Dollars.
"EUROCURRENCY RATE LOAN" means a Eurocurrency Rate Committed Loan or a
Eurocurrency Margin Bid Loan.
15
"EUROCURRENCY RATE REVOLVING CREDIT LOAN" means a Eurocurrency Rate Loan
that is a Revolving Credit Loan.
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCHANGE COMPANIES" means Investment Property Exchange Services, Inc. and
any other Restricted Companies that are engaged in like-kind-exchange
operations.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement dated as
of March 9, 2005, as amended, among the Company and certain of its Subsidiaries,
Bank of America, as administrative agent, and a syndicate of lenders.
"FACILITY" means the Term Facility, the Revolving Credit Facility, the US
Dollar Revolving Credit Facility, the Multicurrency Revolving Credit Facility,
the Swing Line Sublimit or the Letter of Credit Sublimit, as the context may
require.
"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 immediately 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
JPMCB on such day on such transactions as determined by the Administrative
Agent.
"FEE LETTERS" means, collectively, (i) the letter agreement, dated
November 2, 2006, among the Company, the Arrangers and certain Affiliates of the
Arrangers and (ii) the letter agreement dated November 2, 2006, between the
Company and the Administrative Agent.
"FNF" means an entity formerly known as Fidelity National Financial, Inc.,
a Delaware corporation, which entity was at one time prior to the Closing Date,
the parent of all of the other entities included in the Consolidated Companies.
"FOREIGN LENDER" means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower 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.
"FOREIGN SUBSIDIARY" means any direct or indirect Subsidiary of the
Company which is not a Domestic Subsidiary.
"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 engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit.
16
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board 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 as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GRANTING LENDER" has the meaning specified in Section 11.07(i).
"GUARANTEE" means, as to any Person, without duplication, (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); provided that the term
"Guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business, or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with any
acquisition or Disposition of assets permitted under this Agreement (other than
such obligations with respect to Indebtedness). 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.
"GUARANTOR PARTY" has the meaning set forth in Section 10.01.
"GUARANTORS" means, collectively, (i) each Guarantor Party and (ii) each
Subsidiary Guarantor.
"GUARANTY" means, collectively, (i) the Guarantee by the Company and each
other Borrower set forth in Article 10 of this Agreement and (ii) each
Subsidiary Guaranty.
17
"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 as hazardous, toxic, pollutants or contaminants or words of
similar meaning or effect.
"HISTORICAL FINANCIAL STATEMENTS" has the meaning specified in Section
5.05(a).
"HONOR DATE" has the meaning specified in Section 2.04(c)(i).
"IMMATERIAL SUBSIDIARIES" means, as of any date of determination, those
Restricted Subsidiaries that, individually or collectively, for the four fiscal
quarter period ended most recently prior to such date of determination did not
generate more than 10% of the Consolidated EBITDA of the Restricted Companies.
No Borrower shall be deemed to be an Immaterial Subsidiary.
"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 or agreements;
(b) the maximum available amount of all letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties, surety
bonds, performance bonds and similar instruments issued or created by or
for the account of such Person;
(c) net obligations of such Person under Swap Contracts (with the
amount of such net obligations being deemed to be the aggregate Swap
Termination Value thereof as of such date);
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than (i) trade accounts payable in
the ordinary course of business, (ii) any earn-out obligation until such
obligation appears in the liabilities section of the balance sheet of such
Person, and (iii) any earn-out obligation that appears in the liabilities
section of the balance sheet of such Person, to the extent (A) such Person
is indemnified for the payment thereof by a solvent Person reasonably
acceptable to the Administrative Agent or (B) amounts to be applied to the
payment therefore are in escrow);
(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 and mortgage, industrial revenue bond, industrial development
bond and similar financings), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
18
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity
Interests;
(h) indebtedness or similar financing obligations of such Person
under any Securitization Financing; and
(i) all Guarantees of such Person in respect of any of the foregoing
paragraphs.
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
non-recourse to such Person. The amount of Indebtedness of any Person for
purposes of clause (e) above shall be deemed to be equal to the lesser of (x)
the aggregate unpaid amount of such Indebtedness and (y) the fair market value
of the property encumbered thereby as determined by such Person in good faith.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 11.05.
"INDEMNITEES" has the meaning set forth in Section 11.05.
"INFORMATION" has the meaning specified in Section 11.09.
"INTEREST COVERAGE RATIO" means, as of the end of any fiscal quarter of
the Company for the four fiscal quarter period ending on such date, the ratio of
(a) Consolidated EBITDA of the Company and its Subsidiaries for such period to
(b) Consolidated Interest Charges of the Company and its Consolidated
Subsidiaries for such period.
"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
Maturity Date; provided that if any Interest Period for a Eurocurrency 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 or any Specified Rate Loan, the last Business Day
of each March, June, September and December and the Maturity Date.
"INTEREST PERIOD" means (a) as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or (or in the
case of any Eurocurrency Rate Committed Loan) converted to or continued as a
Eurocurrency Rate Loan and ending on the date one week, two weeks, one month,
two months, three months or six months thereafter, or to the extent available
(as determined by each relevant Lender) to all relevant Lenders, nine or twelve
months thereafter, as selected by the Company in its Committed Loan Notice or
Bid Request, as the case may be (or, in the case of Eurocurrency Rate Committed
Loans, such other period as agreed by the Company and all applicable Lenders);
and (b) as to each Absolute Rate Loan, a period of not less than 14 days and not
more than 180 days as selected by the Company in its Bid Request; provided that:
19
(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, in the case of a Eurocurrency Rate Loan, such Business Day falls
in another calendar month, in which case such Interest Period shall end on
the immediately preceding Business Day;
(ii) other than with respect to one and two week Interest Periods,
any Interest Period pertaining to a Eurocurrency Rate Loan 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 Maturity Date.
"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 Equity Interests or debt 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
incurs debt of the type referred to in clause (h) of the definition of
"Indebtedness" set forth in this Section 1.01 in respect of such Person or (c)
the purchase or other acquisition (in one transaction or a series of
transactions) of all or substantially all of the property and assets or business
of another Person or assets constituting a business unit, line of business or
division of such Person. For all purposes of this Agreement, 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.
"JOINT VENTURE" means (a) any Person which would constitute an "equity
method investee" of the Company or any of its Subsidiaries, (b) any other Person
designated by the Company in writing to the Administrative Agent (which
designation shall be irrevocable) as a "Joint Venture" for purposes of this
Credit Agreement and at least 50% but less than 100% of whose Equity Interests
are directly owned by the Company or any of its Subsidiaries, and (c) any Person
in whom the Company or any of its Subsidiaries beneficially owns any Equity
Interest that is not a Subsidiary.
"JPMCB" means JPMorgan Chase Bank, N.A. and its successors.
"LAWS" means, collectively, all applicable 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.
20
"L/C ADVANCE" means, with respect to each Revolving Credit Lender, such
Lender's funding of its participation in any L/C Borrowing in accordance with
its Pro Rata Share. All L/C Advances shall be denominated in Dollars.
"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 Credit Borrowing. All L/C Borrowings shall be
denominated in Dollars.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means JPMCB or any other Revolving Lender (or Affiliate
thereof) that agrees in writing with the Company and the Administrative Agent to
act as an L/C Issuer, in each case 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, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"LEASING COMPANIES" means Capital Leasing and its Subsidiaries.
"LENDER" has the meaning specified in the introductory paragraph to this
Agreement and, as the context requires, includes the L/C Issuer and the Swing
Line Lender.
"LENDER PARTIES" means, collectively, the Administrative Agent, the
Lenders, the Supplemental Administrative Agents (if any) and each co-agent or
sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 9.02.
"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 Borrowers
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder. A Letter
of Credit may be a commercial letter of credit or a standby letter of credit.
Letters of Credit may be issued in Dollars or in an Alternative Currency.
"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 five days prior
to the scheduled Maturity Date then in effect for the Revolving Credit Facility
(or, if such day is not a Business Day, the next preceding Business Day).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $250,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency
Revolving Credit Facility.
21
"LEVERAGE RATIO" means, as of the end of any fiscal quarter of the Company
for the four fiscal quarter period ending on such date, the ratio of (a) Total
Indebtedness on the last day of such period to (b) Consolidated EBITDA of the
Consolidated Companies for such period; provided that the amount of Total
Indebtedness determined pursuant to clause (a) above at any date shall be
reduced, in the case of any such Indebtedness of a Majority-Owned Subsidiary, by
an amount directly proportional to the amount (if any) by which Consolidated
EBITDA determined pursuant to clause (b) above for such date was reduced
(including through the calculation of Consolidated Net Income) by the
elimination of a minority interest in such Majority-Owned Subsidiary owned by a
Person other than a Consolidated Company.
"LIEN" means any mortgage, pledge, hypothecation, assignment for security,
deposit arrangement for security, encumbrance, lien (statutory or other),
charge, or preference, priority or other security interest or preferential
arrangement 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 Capitalized Lease having substantially the
same economic effect as any of the foregoing but excluding operating leases).
"LOAN" means an extension of credit by a Lender to a Borrower under
Article 2 in the form of a Term Loan, a Revolving Credit Loan, a Bid Loan or a
Swing Line Loan.
"LOAN DOCUMENTS" means, collectively, (a) this Agreement, (b) the Notes,
(c) the Guaranty, (d) the Fee Letters, (e) each Letter of Credit Application and
(f) each Designated Borrower Request and Assumption Agreement.
"LOAN PARTIES" means, collectively, the Company, each Guarantor and each
Designated Borrower.
"MAJORITY-OWNED SUBSIDIARY" means a Consolidated Subsidiary that is not
wholly-owned (directly or indirectly) by the Company.
"MANAGEMENT AGREEMENT" means each of the agreements set forth on Schedule
1.01C.
"MANDATORY COST" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01A.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
business, assets, liabilities, results of operations, or financial position of
the Company and its Subsidiaries, taken as a whole, (b) a material and adverse
effect on the ability of any Loan Party to perform its obligations under the
Loan Documents or (c) a material and adverse effect on the rights and remedies
of the Lenders under the Loan Documents.
"MATERIAL COMPANIES" means the Company and all Restricted Subsidiaries
(other than Immaterial Subsidiaries).
"MATURITY DATE" means the fifth anniversary of the Closing Date.
"MAXIMUM RATE" has the meaning specified in Section 11.11.
22
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"MULTICURRENCY REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Multicurrency Revolving Credit Loans of the same Type and, in the
case of Eurocurrency Rate Loans, having the same Interest Period made by each of
the Multicurrency Revolving Credit Lenders pursuant to Section 2.01(b).
"MULTICURRENCY REVOLVING CREDIT COMMITMENT" means, as to each
Multicurrency Revolving Credit Lender, its obligation to (a) make Multicurrency
Revolving Credit Loans to the Borrowers pursuant to Section 2.01(b), (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 Dollar amount set forth opposite such Lender's name on
Schedule 2.01 under the caption "Multicurrency Revolving Credit Commitment" or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto under the caption "Multicurrency Revolving Credit Commitment", as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The aggregate Multicurrency Revolving Credit Commitments of all
Multicurrency Revolving Credit Lenders shall be $735,000,000 on the Closing
Date, as such amount may be adjusted from time to time in accordance with the
terms of this Agreement.
"MULTICURRENCY REVOLVING CREDIT FACILITY" means, at any time, the
aggregate amount of the Multicurrency Revolving Credit Commitments at such time.
"MULTICURRENCY REVOLVING CREDIT LENDER" means, at any time, any Lender
that has a Multicurrency Revolving Credit Commitment at such time.
"MULTICURRENCY REVOLVING CREDIT LOAN" has the meaning specified in Section
2.01(b).
"MULTICURRENCY REVOLVING CREDIT NOTE" means a promissory note of a
Borrower payable to any Multicurrency Revolving Credit Lender or its registered
assigns, in substantially the form of Exhibit D-3 hereto, evidencing the
aggregate indebtedness of such Borrower to such Multicurrency Revolving Credit
Lender resulting from the Multicurrency Revolving Credit Loans made by such
Multicurrency Revolving Credit Lender.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Company 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 CASH PROCEEDS" means:
(a) with respect to the Disposition of any asset by any Restricted Company
or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such Disposition or Casualty Event
(including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received and, with respect to any Casualty Event, any insurance
proceeds or condemnation awards in respect of such Casualty Event actually
received
23
by or paid to or for the account of such Restricted Company) over (ii) the sum
of (A) the principal amount of any Indebtedness that is secured by the asset
subject to such Disposition or Casualty Event and that is repaid in connection
with such Disposition or Casualty Event (other than Indebtedness under the Loan
Documents), (B) the out-of-pocket expenses (including attorneys' fees,
investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes,
other customary expenses and brokerage, consultant and other customary fees)
actually incurred by such Restricted Company in connection with such Disposition
or Casualty Event, (C) taxes paid or reasonably estimated to be payable by such
Restricted Company or any of the direct or indirect members thereof and
attributable to such Disposition (including, in respect of any proceeds received
in connection with a Disposition or Casualty Event of any asset of any Foreign
Subsidiary, deductions in respect of withholding taxes that are or would be
payable in cash if such funds were repatriated to the United States), and (D)
any reserve for adjustment in respect of (1) the sale price of such asset or
assets established in accordance with GAAP and (2) any liabilities associated
with such asset or assets and retained by such Restricted Company after such
sale or other disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction and it being
understood that "Net Cash Proceeds" shall include any cash or Cash Equivalents
(I) received upon the Disposition of any non-cash consideration received by such
Restricted Company in any such Disposition and (II) upon the reversal (without
the satisfaction of any applicable liabilities in cash in a corresponding
amount) of any reserve described in clause (D) of the preceding sentence or, if
such liabilities have not been satisfied in cash and such reserve not reversed
within 365 days after such Disposition or Casualty Event, the amount of such
reserve; provided that (x) no proceeds realized in a single transaction or
series of related transactions shall constitute Net Cash Proceeds unless such
proceeds shall exceed $5,000,000 and (y) no proceeds shall constitute Net Cash
Proceeds under this clause (a) in any fiscal year until the aggregate amount of
all such proceeds in such fiscal year shall exceed $25,000,000 (and thereafter
only proceeds in excess of such amount shall constitute Net Cash Proceeds under
this clause (a)); and
(b) with respect to the incurrence or issuance of any Indebtedness by any
Restricted Company, the excess, if any, of (i) the sum of the cash received in
connection with such sale over (ii) the investment banking fees, underwriting
discounts, commissions, costs and other out-of-pocket expenses and other
customary expenses, incurred by such Restricted Company (or, in the case of
taxes, any member thereof) in connection with such incurrence or issuance and,
in the case of Indebtedness of any Foreign Subsidiary, deductions in respect of
withholding taxes that are or would otherwise be payable in cash if such funds
were repatriated to the United States.
"NON-CONSENTING LENDER" has the meaning specified in Section 3.09(e).
"NONRENEWAL NOTICE DATE" has the meaning specified in Section
2.04(b)(iii).
"NOTE" means a Term Note or a Revolving Credit Note, as the context may
require.
"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, whether direct or
indirect (including those acquired by assumption),
24
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 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. Without limiting the generality of the
foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Loan Party under any Loan Document and (b) the obligation of any Loan
Party to reimburse any amount in respect of any of the foregoing that any
Lender, in its sole discretion, may elect to pay or advance on behalf of such
Loan Party.
"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-US. 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, 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.
"OTHER TAXES" has the meaning specified in Section 3.01(c).
"OUTSTANDING AMOUNT" means (a) with respect to the Term Loans, Revolving
Credit Loans and Swing Line Loans on any date, the principal amount thereof (or,
in the case of the Revolving Credit Loans, the Dollar Equivalent amount thereof)
after giving effect to any borrowings and prepayments or repayments of Term
Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Borrowings as a Revolving Credit
Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and
(b) with respect to any L/C Obligations on any date, the Dollar Equivalent
amount of the aggregate outstanding amount thereof on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
thereto as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit (including any
refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit
Extensions as a Revolving Credit Borrowing) or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such date.
"OVERNIGHT RATE" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of JPMCB in
the applicable offshore interbank market for such currency to major banks in
such interbank market.
"PARTICIPANT" has the meaning specified in Section 11.07(f).
25
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 Company or
any ERISA Affiliate or to which the Company 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 ACQUISITION" has the meaning specified in Section 7.02(h).
"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; provided that (a) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to unpaid accrued interest and premium
thereon plus other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such modification, refinancing, refunding, renewal
or extension and by an amount equal to any existing commitments unutilized
thereunder or as otherwise permitted pursuant to Section 7.03, (b) such
modification, refinancing, refunding, renewal or extension has a final maturity
date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or
extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed
or extended is subordinated in right of payment to the Obligations, such
modification, refinancing, refunding, renewal or extension is subordinated in
right of payment to the Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness being
modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the
terms and conditions (including, if applicable, as to collateral) of any such
modified, refinanced, refunded, renewed or extended Indebtedness are not
materially less favorable to the Loan Parties or the Lenders than the terms and
conditions of the Indebtedness being modified, refinanced, refunded, renewed or
extended, taken as a whole, (e) such modification, refinancing, refunding,
renewal or extension is incurred by the Person who is the obligor (or another of
the Restricted Companies, at the election of the Company, provided that if the
obligor is a Loan Party, such other Restricted Company must also be a Loan
Party) on the Indebtedness being modified, refinanced, refunded, renewed or
extended, and such new or additional obligors as are or become Loan Parties in
accordance with Section 6.12 and with respect to subordinated Indebtedness the
obligations of such obligors shall be subordinated in right of payment to the
Obligations on terms at least as favorable to the Lenders as those contained in
documentation governing the Indebtedness, taken as a whole and (f) at the time
thereof, no Event of Default shall have occurred and be continuing.
"PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness
that (a) is expressly subordinated to the prior payment in full in cash of the
Obligations on terms not materially less favorable to the Lenders, taken as a
whole, than the terms set forth on Exhibit J hereto or on such other terms as
shall be reasonably acceptable to the Administrative Agent, (b)
26
is not scheduled to mature prior to the date that is 91 days after the scheduled
maturity date of the Term Loans (or any later scheduled maturity date of any
Additional Term Loans outstanding on the date of issuance of such Indebtedness),
(c) has no scheduled amortization or payments of principal prior to the
scheduled maturity date of the Term Loans (or any later scheduled maturity date
of any Additional Term Loans outstanding on the date of issuance of such
Indebtedness), and (d) in the case of such Indebtedness (or series of related
Indebtedness) in excess of the Threshold Amount, has mandatory prepayment,
repurchase or redemption provisions no more onerous or expansive in scope, taken
as a whole, than those contained in this Agreement for the Term Loans or are
otherwise reasonably acceptable to the Administrative Agent.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee pension benefit plan" (as such term is defined
in Section 3(2) of ERISA) maintained or sponsored by the Company or, with
respect to any such plan that is subject to Section 412 of the Code or Title IV
of ERISA, any ERISA Affiliate.
"PLATFORM" has the meaning specified in Section 6.02.
"PRO FORMA BASIS", "PRO FORMA COMPLIANCE" and "PRO FORMA EFFECT" means,
for purposes of calculating compliance with the Leverage Ratio or each of the
financial covenants set forth in Section 7.10 in respect of a Specified
Transaction, that such Specified Transaction and the following transactions in
connection therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement in such covenant: (a) income statement items
(whether positive or negative) attributable to the property or Person subject to
such Specified Transaction, in the case of a Permitted Acquisition or Investment
described in the definition of "Specified Transaction", shall be included, (b)
any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by
any Restricted Company in connection with such Specified Transaction, and if
such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; provided that the
foregoing pro forma adjustments may be applied to the Leverage Ratio and the
financial covenants set forth in Section 7.10 to the extent that such
adjustments are consistent with the definition of Consolidated EBITDA and may
take into account cost savings for which the necessary steps have been
implemented or are reasonably expected to be implemented within twelve months
after the closing of the applicable Permitted Acquisition.
"PRO RATA SHARE" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitments of such Lender under the
applicable Facility or Facilities at such time and the denominator of which is
the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time.
"PUBLIC LENDER" has the meaning specified in Section 6.02.
"REGISTER" has the meaning set forth in Section 11.07(e).
27
"REORGANIZATION" means the series of transactions in which the operations
of FNF and its Subsidiaries were reorganized such that (i) the Separated
Operations ceased to be owned, directly or indirectly, by FNF, (ii) FNF's
interests in Capital Leasing and its Subsidiaries were transferred to the
Company and (iii) FNF was merged into the Company.
"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 Term Loans or Revolving Credit Loans, a Committed
Loan Notice, (b) with respect to a Bid Loan, a Bid Request, (c) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (d) 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 sum of the (a) Total Outstandings (with the aggregate
amount of each Lender's risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed "held" by such Lender for purposes
of this definition), (b) aggregate unused Term Commitments, if any, and (c)
aggregate unused Revolving Credit Commitments, if any; provided that the unused
Term Commitment, unused Revolving Credit Commitment 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; provided
further that Bid Loans shall not be included in the determination of Total
Outstandings above except (x) for purposes of declaring Loans to be due and
payable pursuant to Section 8.02 and (y) for all purposes after the Loans become
due and payable pursuant to Section 8.02 or after the Aggregate Revolving Credit
Commitments expire or terminate.
"RESPONSIBLE OFFICER" means the chief executive officer, president, any
vice president, chief financial officer, treasurer or assistant treasurer or
other similar officer of a Loan Party (or any other person duly authorized by a
Loan Party to act with respect to the Loan Documents on behalf of such Loan
Party) and, as to any document delivered on the Closing Date, secretary or
assistant secretary. 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 COMPANIES" means the Company and its Restricted Subsidiaries,
and "RESTRICTED COMPANY" means any of the foregoing.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest of any
Restricted Company, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interest, or on account of any return of capital
to the Company's stockholders, partners or members (or the equivalent Persons
thereof).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than an
Unrestricted Subsidiary (including in any event each Designated Borrower).
28
"REVALUATION DATE" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and
(iii) such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require; and (b) with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely
with respect to the increased amount), (iii) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative Currency and
(iv) such additional dates as the Administrative Agent or the L/C Issuer shall
determine or the Required Lenders shall require.
"REVOLVING CREDIT BORROWING" means a Multicurrency Revolving Credit
Borrowing or a US Dollar Revolving Credit Borrowing, as the context may require.
"REVOLVING CREDIT COMMITMENT" means Multicurrency Revolving Credit
Commitment or US Dollar Revolving Credit Commitment, as the context may require.
"REVOLVING CREDIT FACILITY" means, collectively, the US Dollar Revolving
Credit Facility and the Multicurrency Revolving Credit Facility.
"REVOLVING CREDIT LENDER" means a Multicurrency Revolving Credit Lender or
a US Dollar Revolving Credit Lender, as the context may require.
"REVOLVING CREDIT LOAN" has the meaning specified in Section 2.01(b).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"SAME DAY FUNDS" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECURITIZATION ASSETS" means any accounts receivable, royalty or revenue
streams, other financial assets, proceeds and books, records and other related
assets incidental to the foregoing subject to a Securitization Financing.
"SECURITIZATION FINANCING" has the meaning referred to in Section 7.03(u).
"SECURITIZATION VEHICLE" means one or more special purpose vehicles that
are, directly or indirectly, wholly-owned Subsidiaries of the Company and are
Persons organized for the limited purpose of entering into a Securitization
Financing by purchasing, or receiving by way of capital
29
contributions, sale or other transfer, assets from the Company and its
Subsidiaries and obtaining financing for such assets from third parties, and
whose structure is designed to insulate such vehicle from the credit risk of the
Company.
"SEPARATED OPERATIONS" means Fidelity National Title Group, Sedgwick CMS,
Fidelity National Insurance Company and certain other assets of FNF and its
Subsidiaries (prior to giving effect to the Reorganization), excluding, however,
the Company and Capital Leasing and their respective Subsidiaries.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"SPC" has the meaning specified in Section 11.07(i).
"SPECIFIED NON-RECOURSE INDEBTEDNESS" has the meaning set forth in Section
7.03(f).
"SPECIFIED RATE LOAN" means a loan that bears interest at a rate per annum
equal to (x) the Federal Funds Rate plus the Applicable Margin specified for
Eurocurrency Rate Revolving Credit Loans or (y) such other rate as may be agreed
between the Company and the Swing Line Lenders.
"SPECIFIED RESPONSIBLE OFFICER" means the chief executive officer,
president, chief operating officer, chief financial officer, treasurer,
comptroller or general counsel of the Company.
"SPECIFIED TRANSACTION" means, any Investment or incurrence of
Indebtedness in respect of which compliance with the financial covenants set
forth in Section 7.10 is by the terms of this Agreement required to be
calculated on a Pro Forma Basis.
"SPOT RATE" for a currency means the rate determined by the Administrative
Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another
financial institution designated by the Administrative Agent or the L/C Issuer
if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency;
30
and provided further that the L/C Issuer may use such spot rate quoted on the
date as of which the foreign exchange computation is made in the case of any
Letter of Credit denominated in an Alternative Currency.
"STERLING" and "(POUND)" mean the lawful currency of the United Kingdom.
"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
the Company.
"SUBSIDIARY GUARANTOR" has the meaning specified in Section 6.12(a).
"SUBSIDIARY GUARANTY" means, collectively, the guaranty in respect of the
Obligations made by those Subsidiaries of the Company that are Subsidiary
Guarantors in favor of the Administrative Agent on behalf of the Lenders,
substantially in the form of Exhibit G, together with any other guaranty and
guaranty supplement delivered pursuant to Section 6.12.
"SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning specified in Section
9.13 and "Supplemental Administrative Agents" shall have the corresponding
meaning.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward contracts, futures 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, repurchase agreements,
reverse repurchase agreements, sell buy backs and buy sell back agreements, and
securities lending and borrowing agreements 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 or related schedules, including any
such obligations or liabilities arising therefrom.
"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
31
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 BORROWING" means a borrowing of a Swing Line Loan pursuant to
Section 2.05.
"SWING LINE FACILITY" means the revolving credit facility made available
by the Swing Line Lenders pursuant to Section 2.05.
"SWING LINE LENDER" means JPMCB or 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 C.
"SWING LINE SUBLIMIT" means an amount equal to $250,000,000. The Swing
Line Sublimit is part of, and not in addition to, the Multicurrency Revolving
Credit Facility.
"TARGET DAY" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.
"TAXES" has the meaning specified in Section 3.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous Term Loans
of the same Type and, in the case of Eurocurrency Rate Loans, having the same
Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).
"TERM COMMITMENT" means, as to each Term Lender, its obligation to make a
Term Loan to the Company pursuant to Section 2.01(a) in an aggregate amount not
to exceed the amount set forth opposite such Term Lender's name on Schedule 2.01
under the caption "Term Commitment" or in the Assignment and Assumption pursuant
to which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement. The initial
aggregate amount of the Term Commitments is $2,100,000,000.
"TERM FACILITY" means, at any time, (a) on or prior to the Closing Date,
the aggregate amount of the Term Commitments at such time and (b) thereafter,
the aggregate principal amount of the Term Loans of all Term Lenders outstanding
at such time.
"TERM LENDER" means, at any time, any Lender that has a Term Commitment or
Term Loans at such time.
"TERM LOAN" means a Loan made pursuant to Section 2.01(a).
32
"TERM NOTE" means a promissory note of the Borrower payable to any Term
Lender or its registered assigns, in substantially the form of Exhibit D-1
hereto, evidencing the aggregate indebtedness of the Borrower to such Term
Lender resulting from the Term Loans made by such Term Lender.
"THRESHOLD AMOUNT" means $150,000,000.
"TOTAL ASSETS" means, at any time with respect to any Person, the total
assets appearing on the most recently prepared consolidated balance sheet of
such Person as of the end of the most recent fiscal quarter of such Person for
which such balance sheet is available, prepared in accordance with GAAP.
"TOTAL CONSOLIDATED ASSETS" means, at any time, the total assets appearing
on the most recently prepared consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of the most recent fiscal quarter of the
Company and its Consolidated Subsidiaries for which such balance sheet is
available, prepared in accordance with GAAP.
"TOTAL INDEBTEDNESS" means, without duplication, (a) the aggregate
Outstanding Amount of all Loans, the aggregate undrawn amount of all outstanding
trade Letters of Credit and all Unreimbursed Amounts and (b) all other
Indebtedness of the Consolidated Companies of the type referred to in clauses
(a), (b) (but solely in respect of letters of credit and bankers' acceptances,
and solely to the extent drawn and not yet reimbursed), (d), (e), (f) and (h) of
the definition thereof and all Guarantees of the Company and its Subsidiaries in
respect of such Indebtedness of any other Person, in each case other than
Specified Non-Recourse Indebtedness.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"TOTAL REVOLVING OUTSTANDINGS" means the aggregate Outstanding Amount of
all Revolving Credit Loans, all L/C Obligations, Bid Loans and Swing Line Loans.
"TRANCHE" (a) when used with respect to Revolving Credit Lenders, refers
to whether such Lenders are Multicurrency Revolving Credit Lenders or US Dollar
Revolving Credit Lenders, (b) when used with respect to Revolving Credit
Commitments, refers to whether such Commitments are Multicurrency Revolving
Credit Commitments or US Dollar Revolving Credit Commitments and (c) when used
with respect to Revolving Credit Loans or a Revolving Credit Borrowing, refers
to whether such Loans, or the Loans comprising such Borrowing, are Multicurrency
Revolving Credit Loans or US Dollar Revolving Credit Loans.
"TRANSACTION" means, collectively, (a) the execution, delivery and
performance by the Loan Parties of this Agreement, (b) the funding of the Term
Loans and (c) the payment of the fees and expenses incurred in connection with
any of the foregoing.
"TYPE" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan and (b) with respect to a Bid Loan, its
character as an Absolute Rate Loan or a Eurocurrency Margin Bid Loan.
33
"US DOLLAR REVOLVING CREDIT BORROWING " means a borrowing consisting of
simultaneous US Dollar Revolving Credit Loans of the same Type and, in the case
of Eurocurrency Rate Loans, having the same Interest Period made by each of the
US Dollar Revolving Credit Lenders pursuant to Section 2.01(b).
"US DOLLAR REVOLVING CREDIT COMMITMENT" means, as to each US Dollar
Revolving Credit Lender, its obligation to make US Dollar Revolving Credit Loans
to the Company pursuant to Section 2.01(b) in an aggregate principal amount at
any one time outstanding not to exceed the Dollar amount set forth opposite such
Lender's name on Schedule 2.01 under the caption "US Dollar Revolving Credit
Commitment" or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto under the caption "US Dollar Revolving Credit
Commitment", as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The aggregate US Dollar Revolving Credit
Commitments of all US Dollar Revolving Credit Lenders shall be $165,000,000 on
the Closing Date, as such amount may be adjusted from time to time in accordance
with the terms of this Agreement.
"US DOLLAR REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the US Dollar Revolving Credit Commitments at such time.
"US DOLLAR REVOLVING CREDIT LENDER" means, at any time, any Lender that
has a US Dollar Revolving Credit Commitment at such time.
"US DOLLAR REVOLVING CREDIT NOTE" means a promissory note of the Company
payable to any US Dollar Revolving Credit Lender or its registered assigns, in
substantially the form of Exhibit D-2 hereto, evidencing the aggregate
indebtedness of the Company to such Revolving Credit Lender resulting from the
US Dollar Revolving Credit Loans made by such US Dollar Revolving Credit Lender.
"U.S. LENDER" has the meaning set forth in Section 11.16(b).
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in Section 2.04(c)(i).
"UNRESTRICTED SUBSIDIARY" means (a) each Subsidiary of the Company listed
on Schedule 1.01D and (b) any Subsidiary of the Company designated by the board
of directors of the Company as an Unrestricted Subsidiary pursuant to Section
6.14 subsequent to the Closing Date (and continuing until such time that such
designation may be thereafter revoked by the Company).
"VAULT CASH OPERATIONS" means the vault cash or other arrangements
pursuant to which various financial institutions fund the cash requirements of
automated teller machines and cash access facilities operated by the
Consolidated Companies at customer locations.
"WACHOVIA BANK" means Wachovia Bank, National Association and its
successors.
"WACHOVIA CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of February 1, 2006 between the Company and Wachovia Bank.
34
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness.
Section 1.02. 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 meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof" and "hereunder" and words of
similar import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(d) The term "including" is by way of example and not limitation.
(e) 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."
(f) 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.
Section 1.03. Accounting Terms. (a) 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
pursuant to Section 7.10) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP, as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Subsidiaries delivered to the
Lenders pursuant to Section 6.01 or, prior to such delivery, the Historical
Financial Statements for the fiscal year ended December 31, 2005.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio set forth in any Loan Document, and either the Company or the
Required Lenders shall so request, the Administrative Agent and the Company
shall negotiate in good faith to amend such ratio to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the Company shall provide to the Administrative Agent and the Lenders a
written reconciliation in form
35
reasonably satisfactory to the Administrative Agent, between calculations of
such ratio made before and after giving effect to such change in GAAP.
(c) Notwithstanding anything to the contrary contained herein, financial
ratios and other financial calculations pursuant to this Agreement shall,
following any Specified Transaction, be calculated on a Pro Forma Basis until
the completion of four full fiscal quarters following such Specified
Transaction.
Section 1.04. Rounding. Any financial ratios required to be maintained by
the Borrowers pursuant to this Agreement (or required to be satisfied in order
for a specific action to be permitted under 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).
Section 1.05. References to Agreements and Laws. Unless otherwise
expressly provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
Section 1.06. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.07. Timing of Payment or Performance. When the payment of any
obligation or the performance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business Day, the date of
such payment or performance shall extend to the immediately succeeding Business
Day and such extension of time shall be reflected in computing interest or fees,
as the case may be; provided that, with respect to any payment of interest on or
principal of Eurocurrency Rate Loans, if such extension would cause any such
payment to be made in the next succeeding calendar month, such payment shall be
made on the immediately preceding Business Day.
Section 1.08. Exchange Rates; Currency Equivalents. (a) The Administrative
Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of
each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be
the Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating
financial covenants hereunder or except as otherwise provided herein, the
applicable amount of any currency (other than Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent or the L/C Issuer, as applicable.
36
(b) Wherever in this Agreement in connection with a Revolving Credit
Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate
Revolving Credit Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Revolving Credit Borrowing, Eurocurrency Rate Revolving
Credit Loan or Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent or the L/C
Issuer, as the case may be.
Section 1.09. Additional Alternative Currencies. (a) The Company may from
time to time request that Eurocurrency Rate Revolving Credit Loans be made
and/or Letters of Credit be issued in a currency other than those specifically
listed in the definition of "Alternative Currency;" provided that such requested
currency is a lawful currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. In the case of any such
request with respect to the making of Eurocurrency Rate Revolving Credit Loans,
such request shall be subject to the approval of the Administrative Agent and
the Multicurrency Revolving Credit Lenders; and in the case of any such request
with respect to the issuance of Letters of Credit, such request shall be subject
to the approval of the Administrative Agent and the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not later
than 11:00 a.m., 15 Business Days prior to the date of the desired Credit
Extension (or such earlier time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the
L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Revolving Credit Loans, the Administrative Agent
shall promptly notify each Multicurrency Revolving Credit Lender thereof; and in
the case of any such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. Each Multicurrency Revolving
Credit Lender (in the case of any such request pertaining to Eurocurrency Rate
Revolving Credit Loans) or the L/C Issuer (in the case of a request pertaining
to Letters of Credit) shall notify the Administrative Agent, not later than
11:00 a.m., ten Business Days after receipt of such request whether it consents,
in its sole discretion, to the making of Eurocurrency Rate Revolving Credit
Loans or the issuance of Letters of Credit, as the case may be, in such
requested currency.
(c) Any failure by a Multicurrency Revolving Credit Lender or the L/C
Issuer, as the case may be, to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate
Revolving Credit Loans to be made or Letters of Credit to be issued in such
requested currency. If the Administrative Agent and all the Multicurrency
Revolving Credit Lenders consent to making Eurocurrency Rate Revolving Credit
Loans in such requested currency, the Administrative Agent shall so notify the
Company and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency Rate Revolving Credit Loans; and if the Administrative Agent and
the L/C Issuer consent to the issuance of Letters of Credit in such requested
currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Letter of Credit issuances. If the Administrative
Agent shall fail to obtain consent to any
37
request for an additional currency under this Section 1.06, the Administrative
Agent shall promptly so notify the Company, it being acknowledged and agreed
that the Company shall be permitted to create a subtranche of the Multicurrency
Revolving Credit Facility in respect of such currency pursuant to and in
accordance with the last sentence of Section 2.01(b).
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Committed Loans. (a) The Term Borrowings. Subject to the
terms and conditions set forth herein, each Term Lender severally agrees to
make, on the Closing Date, a single loan in Dollars to the Company in an amount
equal to 100% of such Term Lender's Term Commitment. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions
set forth herein, (i) each US Dollar Revolving Credit Lender severally agrees to
make loans (each such loan, a "US DOLLAR REVOLVING CREDIT LOAN") to the Company
in Dollars from time to time, on any Business Day until the Maturity Date, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's US Dollar Revolving Credit Commitment and (ii) each Multicurrency
Revolving Credit Lender severally agrees to make loans (each such loan, a
"MULTICURRENCY REVOLVING CREDIT LOAN" and, together with the Multicurrency
Revolving Credit Loans, the "REVOLVING CREDIT LOANS") to the Borrowers in
Dollars or in one or more Alternative Currencies from time to time, on any
Business Day until the Maturity Date, in an aggregate amount not to exceed at
any time outstanding the amount of such Lender's Multicurrency Revolving Credit
Commitment, provided that after giving effect to any Multicurrency Revolving
Credit Borrowing, (x) the aggregate Outstanding Amount of the Multicurrency
Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Multicurrency Revolving Credit Commitment, (y) the aggregate Outstanding Amount
of all Multicurrency Revolving Credit Loans denominated in Australian Dollars,
plus the Outstanding Amount of all L/C Obligations denominated in Australian
Dollars shall not exceed the Australian Dollar Sublimit and (z) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Credit
Commitments. Within the limits of each Lender's Revolving Credit Commitment, and
subject to the other terms and conditions hereof, a Borrower may borrow under
this Section 2.01(b), prepay under Section 2.06 and reborrow under this Section
2.01(b). Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate
Loans, as further provided herein. Notwithstanding the foregoing, in the event
the Borrowers desire to make a Revolving Credit Borrowing in a currency other
than Dollars or an Alternative Currency and some, but not all, of the
Multicurrency Revolving Credit Lenders are willing to fund such Borrowing in the
Borrowers' desired currency, the Borrowers shall be permitted, with the
reasonable consent of the Administrative Agent, to create a subtranche of the
Multicurrency Revolving Credit Facility in which only Multicurrency Revolving
Credit Lenders willing to fund in the desired currency (each, an "ADDITIONAL
ALTERNATIVE CURRENCY") shall participate, and with respect to such
38
subtranche, such Additional Alternative Currency shall be deemed to be an
Alternative Currency for all purposes hereof. Each Multicurrency Revolving
Credit Lender may, at its option, make any Multicurrency Revolving Credit Loan
denominated in an Alternative Currency available to any Designated Borrower that
is a Foreign Subsidiary by causing any foreign or domestic branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of such Designated Borrower to repay such Loan
in accordance with the terms of this Agreement.
Section 2.02. Borrowings, Conversions and Continuations of Committed
Loans. (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion
of Term Loans or Revolving Credit Loans from one Type to the other, and each
continuation of Eurocurrency Rate Committed Loans shall be made upon the
Company'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 (i) 1:00 p.m. three Business Days prior to the requested date of any
Borrowing of Eurocurrency Rate Committed Loans denominated in Dollars,
continuation of Eurocurrency Rate Committed Loans denominated in Dollars or any
conversion of Base Rate Committed Loans to Eurocurrency Rate Committed Loans
denominated in Dollars, (ii) 1:00 p.m. four Business Days prior to the requested
date of any Borrowing or continuation of Eurocurrency Rate Committed Loans
denominated in Alternative Currencies, and (iii) 12:00 p.m. on the requested
date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by
the Company pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Each
Borrowing of, conversion to or continuation of Eurocurrency Rate Committed Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000
in excess thereof. Except as provided in Section 2.04(c)(i) and Section
2.05(c)(i), each Committed Borrowing of or conversion to Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof. Each Committed Loan Notice (whether telephonic or written)
shall specify (i) whether the Company is requesting a Term Borrowing, a
Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans
from one Type to the other, or a continuation of Eurocurrency Rate Committed
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
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or which existing Term Loans or Revolving Credit
Loans are to be converted, (v) if applicable, the duration of the Interest
Period with respect thereto, (vi) in the case of a Revolving Credit Borrowing,
the relevant currency and (vii) if applicable, the Designated Borrower. If the
Company fails to specify a currency in a Committed Loan Notice requesting a
Borrowing, then the Committed Loans so requested shall be made in Dollars. If
the Company fails to specify a Type of Loan in a Committed Loan Notice or fails
to give a timely notice requesting a conversion or continuation, then the
applicable Term Loans or Revolving Credit Loans shall be made as, or converted
to, a Eurocurrency Rate Committed Loan with an
39
Interest Period of one month (subject to the definition of Interest Period). Any
such automatic conversion to Eurocurrency Rate Committed Loans with an Interest
Period of one month shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurocurrency Rate Loans. If a
Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency
Rate Committed Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month. No Committed Loan may be converted into or continued as a Committed Loan
denominated in a different currency, but instead must be prepaid in the original
currency of such Committed Loan and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Appropriate Lender of the amount (and currency) of
its Pro Rata Share of the applicable Class of Loans, and if no timely notice of
a conversion or continuation is provided by the Company, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Eurocurrency Rate Loans with an Interest Period of 1 month or continuation
described in Section 2.02(a). In the case of each Committed Borrowing, each
Appropriate Lender shall make the amount of its Committed Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent's Office for
the applicable currency not later than 1:00 p.m., in the case of any Committed
Loan denominated in Dollars, and not later than the Applicable Time specified by
the Administrative Agent in the case of any Committed Loan in an Alternative
Currency, in each case on the Business Day specified in the applicable Committed
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 relevant
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the relevant Borrower on the books of JPMCB with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the
Company; provided that if, on the date the Committed Loan Notice with respect to
such Borrowing is given by the Company, there are Swing Line Loans or L/C
Borrowings outstanding, then the proceeds of such Borrowing denominated in
Dollars shall be applied, first, to the payment in full of any such L/C
Borrowings, second, to the payment in full of any such Swing Line Loans, and
third, to the relevant Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Committed
Loan may be continued or converted only on the last day of an Interest Period
for such Eurocurrency Rate Committed Loan unless the relevant Borrower pays the
amount due, if any, under Section 3.07 in connection therewith. During the
existence of an Event of Default, the Administrative Agent or the Required
Lenders may require that no Loans may be converted to or continued as
Eurocurrency Rate Loans.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Committed Loans upon determination of such interest rate. The determination
of the Eurocurrency Rate by the Administrative Agent shall be conclusive in the
absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Company and the Lenders of any change in
JPMCB's prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After giving effect to all Term Borrowings, all Revolving Credit
Borrowings, all conversions of Term Loans or Revolving Credit Loans from one
Type to the other, and all continuations of Term Loans or Revolving Credit Loans
as the same Type, there shall not be more than 20 Interest Periods in effect
with respect to Committed Loans.
40
(f) The failure of any Lender to make the Committed Loan to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Committed Loan on the date of such Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make the
Committed Loan to be made by such other Lender on the date of any Borrowing.
Section 2.03. Bid Loans. (a) General. Subject to the terms and conditions
set forth herein, each Revolving Credit Lender agrees that the Company may from
time to time request the Revolving Credit Lenders of any Tranche or both
Tranches to submit offers to make loans (each such loan, a "BID LOAN") to the
Company prior to the Maturity Date pursuant to this Section 2.03; provided,
however, that after giving effect to any Bid Borrowing, the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Credit Commitments.
(b) Requesting Competitive Bids. The Company may request the submission of
Competitive Bids by delivering a Bid Request to the Administrative Agent not
later than 12:00 noon (i) one Business Day prior to the requested date of any
Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) four Business
Days prior to the requested date of any Bid Borrowing that is to consist of
Eurocurrency Margin Bid Loans. Each Bid Request shall specify (i) the requested
date of the Bid Borrowing (which shall be a Business Day), (ii) the aggregate
principal amount of Bid Loans requested (which must be $10,000,000 or a whole
multiple of $1,000,000 in excess thereof), (iii) the Type of Bid Loans
requested, (iv) the requested currency and (v) the duration of the Interest
Period with respect thereto, and shall be signed by a Responsible Officer of the
Company. No Bid Request shall contain a request for (i) more than one Type of
Bid Loan or (ii) Bid Loans having more than three different Interest Periods.
Unless the Administrative Agent otherwise agrees in its sole and absolute
discretion, the Company may not submit a Bid Request if it has submitted another
Bid Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Revolving
Credit Lender of each Bid Request received by it from the Company and the
contents of such Bid Request.
(ii) Each Revolving Credit Lender may (but shall have no obligation
to) submit a Competitive Bid containing an offer to make one or more Bid
Loans in response to such Bid Request. Such Competitive Bid must be
delivered to the Administrative Agent not later than 10:30 a.m. (A) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, and (B) three Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans; provided,
however, that any Competitive Bid submitted by JPMCB in its capacity as a
Revolving Credit Lender in response to any Bid Request must be submitted
to the Administrative Agent not later than 10:15 a.m. on the date on which
Competitive Bids are required to be delivered by the other Lenders in
response to such Bid Request. Each Competitive Bid shall specify (A) the
proposed date of the Bid Borrowing; (B) the principal amount of each Bid
Loan for which such Competitive Bid is being made, which principal amount
(x) may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or a whole multiple of $1,000,000
in excess thereof, and (z) may not
41
exceed the principal amount of Bid Loans for which Competitive Bids were
requested; (C) if the proposed Bid Borrowing is to consist of Absolute
Rate Bid Loans, the Absolute Rate offered for each such Bid Loan and the
Interest Period applicable thereto; (D) the proposed currency of each Bid
Loan; (E) if the proposed Bid Borrowing is to consist of Eurocurrency
Margin Bid Loans, the Eurocurrency Bid Margin with respect to each such
Eurocurrency Margin Bid Loan and the Interest Period applicable thereto;
and (F) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is received
after the applicable time specified in clause (ii) above, (B) is not
substantially in the form of a Competitive Bid as specified herein, (C)
contains qualifying, conditional or similar language, (D) proposes terms
other than or in addition to those set forth in the applicable Bid
Request, or (E) is otherwise not responsive to such Bid Request. Any
Revolving Credit Lender may correct a Competitive Bid containing a
manifest error by submitting a corrected Competitive Bid (identified as
such) not later than the applicable time required for submission of
Competitive Bids. Any such submission of a corrected Competitive Bid shall
constitute a revocation of the Competitive Bid that contained the manifest
error. The Administrative Agent may, but shall not be required to, notify
any Revolving Credit Lender of any manifest error it detects in such
Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 and 4.02
and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Notice to Company of Competitive Bids. Not later than 11:00 a.m. (i)
on the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, or (ii) three Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans, the
Administrative Agent shall notify the Company of the identity of each Lender
that has submitted a Competitive Bid that complies with Section 2.03(c) and of
the terms of the offers contained in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 12:00 p.m. (x) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate Loans,
and (y) three Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurocurrency Margin Bid Loans, the Company shall notify
the Administrative Agent of its acceptance or rejection of the offers notified
to it pursuant to Section 2.03(d). The Company shall be under no obligation to
accept any Competitive Bid and may choose to reject all Competitive Bids. In the
case of acceptance, such notice shall specify the aggregate principal amount of
Competitive Bids for each Interest Period that is accepted. The Company may
accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Bid Request;
(ii) the principal amount of each Bid Loan must be $5,000,000 or a
whole multiple of $1,000,000 in excess thereof;
42
(iii) the acceptance of offers may be made only on the basis of
ascending Absolute Rates or Eurocurrency Bid Margins within each Interest
Period; and
(iv) the Company may not accept any offer regarding which the
Administrative Agent has notified the Company that such offer is either
(a) of the type described in Section 2.03(c)(iii) or (b) otherwise fails
to comply with the requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have submitted
Competitive Bids at the same Absolute Rate or Eurocurrency Bid Margin, as the
case may be, for the same Interest Period, and the result of accepting all of
such Competitive Bids in whole (together with any other Competitive Bids at
lower Absolute Rates or Eurocurrency Bid Margins, as the case may be, accepted
for such Interest Period in conformity with the requirements of Section
2.03(e)(iii)) would be to cause the aggregate outstanding principal amount of
the applicable Bid Borrowing to exceed the amount specified therefor in the
related Bid Request, then, unless otherwise agreed by the Company, the
Administrative Agent and such Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by each such Lender in
respect of such Interest Period, with such accepted amounts being rounded to the
nearest whole multiple of $1,000,000.
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on
the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by the Company by the applicable time specified in Section
2.03(e) shall be deemed rejected.
(h) Notice of Eurocurrency Rate. If any Bid Borrowing is to consist of
Eurocurrency Margin Loans, the Administrative Agent shall determine the
Eurocurrency Rate for the relevant Interest Period, and promptly after making
such determination, shall notify the Company and the Lenders that will be
participating in such Bid Borrowing of such Eurocurrency Rate.
(i) Funding of Bid Loans. Each Lender that has received notice pursuant to
Section 2.03(g) that all or a portion of its Competitive Bid has been accepted
by the Company shall make the amount of its Bid Loan(s) available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the date of the requested Bid
Borrowing. Upon satisfaction of the applicable conditions set forth in Section
4.02, the Administrative Agent shall make all funds so received available to the
Company in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction pursuant
to this Section 2.03, the Administrative Agent shall notify each Lender that
submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Bid Loan and the aggregate
amount of each Bid Borrowing.
Section 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
43
of the other Multicurrency Revolving Credit 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 denominated in Dollars or in one or more Alternative Currencies for the
account of the relevant Borrower and to amend or renew Letters of Credit
previously issued by it, in accordance with Section 2.04(b), and (2) to honor
drafts under the Letters of Credit; and (B) the Multicurrency Revolving Credit
Lenders severally agree to participate in Letters of Credit issued for the
account of the relevant Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit,
and no Lender shall be obligated to participate in any Letter of Credit if as of
the date of such L/C Credit Extension or after giving effect thereto, (w) the
Total Revolving Outstandings would exceed the Aggregate Revolving Credit
Commitments, (x) the aggregate Outstanding Amount of the Multicurrency Revolving
Credit Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the
Outstanding Amount of all Swing Line Loans would exceed such Lender's
Multicurrency Revolving Credit Commitment, (y) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit or (z) the aggregate
Outstanding Amount of all Multicurrency Revolving Credit Loans denominated in
Australian Dollars, plus the Outstanding Amount of all L/C Obligations
denominated in Australian Dollars would exceed the Australian Dollar Sublimit.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrowers' 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 be under no 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, in each case, the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material
to it;
(B) subject to Section 2.04(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Multicurrency
Revolving Credit Lenders (other than any Multicurrency Revolving
Credit Lender that is a Defaulting Lender) have approved such expiry
date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Multicurrency Revolving
44
Credit Lenders (other than any Multicurrency Revolving Credit Lender
that is a Defaulting Lender) have approved such expiry date; or
(D) the issuance of such Letter of Credit would violate any
Laws or one or more policies of the L/C Issuer.
(iii) 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.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Company 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 the Company. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 1:00 p.m. at least two
Business Days prior to the proposed issuance date or date of amendment, as the
case may be, or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion. 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 reasonably 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 and currency 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 reasonably
request. 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
reasonably satisfactory to the L/C Issuer: (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a Business
Day); (3) the nature of the proposed amendment; and (4) such other matters as
the L/C Issuer may reasonably request. In the event that any Letter of Credit
Application includes representations and warranties, covenants and/or events of
default that do not contain the materiality qualifiers, exceptions or thresholds
that are applicable to the analogous provisions of this Agreement or other Loan
Documents, or are otherwise more restrictive, the relevant qualifiers,
exceptions and thresholds contained herein shall be incorporated therein or, to
the extent more restrictive, shall be deemed for purposes of such Letter of
Credit Application to be the same as the analogous provisions herein.
(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 the Company and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof (such confirmation to be promptly provided by the Administrative
Agent), 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 relevant Borrower or enter into the
45
applicable amendment, as the case may be. Immediately upon the issuance of
each Letter of Credit, each Multicurrency Revolving Credit 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 equal to the product of such Lender's Pro Rata Share times the
amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions
(each, an "AUTO-RENEWAL LETTER OF CREDIT"); provided that any such
Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any
such renewal at least once in each twelve month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "NONRENEWAL NOTICE
DATE") in each such twelve month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Company shall not be required to make a specific request to the L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration
Date; provided that the L/C Issuer shall not permit any such renewal if
(A) the L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms
hereof (by reason of the provisions of Section 2.04(a)(ii) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is five Business Days before the Nonrenewal Notice
Date from the Administrative Agent, any Multicurrency Revolving Credit
Lender or the Company that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied.
(iv) 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 the
Company 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 the Company and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in
an Alternative Currency, the relevant Borrower shall reimburse the L/C Issuer in
such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have
specified in such notice that it will require reimbursement in Dollars, or (B)
in the absence of any such requirement for reimbursement in Dollars, the Company
shall have notified the L/C Issuer promptly following receipt of the notice of
drawing that the relevant Borrower will reimburse the L/C Issuer in Dollars. In
the case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, the L/C Issuer shall notify the
Company of the Dollar Equivalent of the amount of the drawing promptly following
the determination thereof. Not later than 3:00 p.m. on the date of any payment
by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in an Alternative Currency (each such date, an "HONOR
DATE"), the Company shall reimburse the L/C Issuer through the
46
Administrative Agent in an amount equal to the amount of such drawing and in the
applicable currency; provided that if notice of such drawing is not provided to
the Company prior to 1:00 p.m. on the Honor Date, then the relevant Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency on the next
succeeding Business Day and such extension of time shall be reflected in
computing fees in respect of any such Letter of Credit. If the relevant Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Multicurrency Revolving Credit Lender of the Honor
Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount
of the Dollar Equivalent thereof in the case of a Letter of Credit denominated
in an Alternative Currency) (the "UNREIMBURSED AMOUNT"), and the amount of such
Multicurrency Revolving Credit Lender's Pro Rata Share thereof. In such event,
the Company shall be deemed to have requested a Revolving Credit 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 2.02(a) for the principal amount of Base Rate Loans but subject to the
amount of the unutilized portion of the Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Committed
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 Multicurrency Revolving Credit Lender (including the
Lender acting as L/C Issuer) 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 for
Dollar-denominated payments in an amount equal to its Pro Rata Share 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 Multicurrency Revolving
Credit Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans, the Company
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 Default Rate. In such event, each Multicurrency
Revolving Credit 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 Lender in satisfaction of its
participation obligation under this Section 2.04.
(iv) Until each Multicurrency Revolving Credit Lender funds its
Revolving Credit 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 Lender's Pro Rata Share of such amount shall
be solely for the account of the L/C Issuer.
47
(v) Each Multicurrency Revolving Credit Lender's obligation to make
Revolving Credit 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 Lender may have against the L/C Issuer,
the Borrowers 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
that each Multicurrency Revolving Credit Lender's obligation to make
Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by a Borrower of
a Committed Loan Notice ). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of any 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 Multicurrency Revolving Credit 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 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 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 applicable Overnight Rate from time to
time in effect. If such Lender pays such amount (with interest as
aforesaid), the amount so paid shall constitute such Lender's Committed
Loan included in the relevant Committed Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A certificate
of the L/C Issuer submitted to any Multicurrency Revolving Credit Lender
(through the Administrative Agent) with respect to any amounts owing under
this Section 2.04(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations. (i) If, at any time after the L/C Issuer
has made a payment under any Letter of Credit and has received from any
Multicurrency Revolving Credit Lender such Lender's L/C Advance in respect of
such payment in accordance with Section 2.04(c), 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 a Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof in Dollars and 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 11.06
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Multicurrency Revolving Credit Lender shall pay to
the Administrative Agent for the account of the L/C Issuer its Pro Rata
Share 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
Lender, at a rate per annum equal to the applicable Overnight Rate from
time to time in effect.
48
(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 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;
(v) any release or amendment or waiver of or consent to departure
from the Guaranty or any other guarantee, for all or any of the
Obligations of the Borrowers in respect of such Letter of Credit;
(vi) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to a Borrower or in the
relevant currency markets generally; or
(vii) 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, the
Borrowers;
provided that the foregoing shall not excuse the L/C Issuer from liability to
the Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are waived by the Borrowers to the extent
permitted by applicable law) suffered by the Borrowers that are caused by the
L/C Issuer's gross negligence or willful misconduct. The Borrowers 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 the
relevant
49
Borrower's instructions or other irregularity, such Borrower will promptly
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 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,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required 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 Letter of Credit Application. 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 that this
assumption is not intended to, and shall not, preclude the Borrowers from
pursuing such rights and remedies as it may have against the beneficiary or
transferee at Law or under this Agreement or any other agreement. None of the
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (vii) of Section 2.04(e);
provided 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 a Borrower which
such Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful or grossly negligent 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 and the conditions
set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or
(ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit may
for any reason remain outstanding and partially or wholly undrawn, the relevant
Borrower shall, within three Business Days, Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
of Credit Expiration Date, as the case may be) or, in the case of clause (ii),
provide a back-to-back letter of credit in a face amount at least equal to the
then undrawn amount of such Letter of Credit from an issuer and in form and
substance reasonably satisfactory to the L/C Issuer. Unless at the option of the
Company, Cash Collateral
50
was deposited in the foreign currency in which the applicable Letter of Credit
was issued, the Administrative Agent may, at any time and from time to time
after the initial deposit of Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the results of exchange rate
fluctuations. For purposes hereof, "CASH COLLATERALIZE" means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances ("CASH COLLATERAL") pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. Cash Collateral shall be maintained in a Cash
Collateral Account. If at any time the Administrative Agent determines that any
funds held as Cash Collateral are subject to any right or claim of any Person
other than rights or claims of the Administrative Agent arising by operation of
law or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the Cash Collateral Account, an
amount equal to the excess of (a) such aggregate Outstanding Amount over (b) the
total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under
applicable Law, to reimburse the L/C Issuer. To the extent the amount of any
Cash Collateral exceeds the aggregate Outstanding Amount of all L/C Obligations
and so long as no Event of Default has occurred and is continuing, the excess
shall be refunded to the Borrowers.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Company when a Letter of Credit is issued, (i) the rules
of 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) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time
of issuance shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Multicurrency Revolving Credit Lender in
accordance with its Pro Rata Share a Letter of Credit fee for each Letter of
Credit issued for the account of a Borrower equal to the Applicable Margin times
the Dollar Equivalent of the daily maximum amount then available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit if such maximum amount increases periodically
pursuant to the terms of such Letter of Credit). Such letter of credit fees
shall be computed on a quarterly basis in arrears. Such letter of credit fees
shall be due and payable on the first Business Day after the end of each March,
June, September and December, 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 Margin during
any quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect.
(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,
in Dollars, a fronting fee
51
with respect to each Letter of Credit issued for the account of a Borrower equal
to 0.125% per annum (or, in the case of any L/C Issuer, any lesser percentage
that may be agreed by the Borrowers and such L/C Issuer) of the Dollar
Equivalent of the daily maximum amount then available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit if such maximum amount increases periodically pursuant to
the terms of such Letter of Credit). Such fronting fees shall be computed on a
quarterly basis in arrears. Such fronting fees shall be due and payable on the
first Business Day after the end of each March, June, September and December,
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. In
addition, the Borrowers shall pay directly to the L/C Issuer for its own
account, in Dollars, 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 within five Business
Days of demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
Section 2.05. Swing Line Loans. (a) The Swing Line. Subject to the terms
and conditions set forth herein, the Swing Line Lenders agree to make loans in
Dollars (each such loan, a "SWING LINE LOAN") to the Company from time to time
on any Business Day (other than the Closing Date) until the Maturity Date 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 Pro Rata Share of the Outstanding Amount of Multicurrency
Revolving Credit Loans and L/C Obligations of any Lender acting as Swing Line
Lender, may exceed the amount of such Lender's Multicurrency Revolving Credit
Commitment; provided that after giving effect to any Swing Line Loan, (x) the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit
Commitments and (y) the aggregate Outstanding Amount of the Multicurrency
Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Multicurrency Revolving Credit Commitment; provided further that the Company
shall not 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 Company 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 Specified Rate Loan. Immediately upon the making of a Swing Line Loan, each
Multicurrency Revolving Credit Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Swing Line Lenders a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Company's irrevocable notice to the Swing Line Lenders and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lenders and the Administrative Agent not later than 3:00 p.m. on the
requested borrowing date or such later time on the requested borrowing date as
may be approved by the Swing Line Lenders in their sole discretion, and shall
specify (i) the amount to be borrowed, which shall be a minimum of
52
$100,000, and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lenders and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company.
Promptly after receipt by the Swing Line Lenders of any telephonic Swing Line
Loan Notice, the Swing Line Lenders 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 Lenders will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lenders have received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Multicurrency
Revolving Credit Lender) prior to 3:30 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lenders not to make such Swing Line
Loan as a result of the limitations set forth in the provisos to the first
sentence of Section 2.05(a), or (B) that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lenders will, not later than 4:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Company. Unless otherwise agreed
between the Swing Line Lenders, each Swing Line Lender shall make 50% of each
Swing Line Loan.
(c) Refinancing of Swing Line Loans. (i) The Swing Line Lenders at any
time in their sole and absolute discretion may request, on behalf of the Company
(which hereby irrevocably authorizes the Swing Line Lenders to so request on its
behalf), that each Multicurrency Revolving Credit Lender make a Specified Rate
Loan in an amount equal to such Lender's Pro Rata Share 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 Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02(a), without
regard to the minimum and multiples specified therein for the principal amount
of Specified Rate Loans, but subject to the unutilized portion of the
Multicurrency Revolving Credit Facility and the conditions set forth in Section
4.02. The Swing Line Lenders shall furnish the Company with a copy of the
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Multicurrency Revolving Credit Lender shall make an
amount equal to its Pro Rata Share of the amount specified in such Committed
Loan Notice available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lenders at the Administrative Agent's Office
not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.05(c)(ii), each Multicurrency Revolving Credit
Lender that so makes funds available shall be deemed to have made a Specified
Rate Loan to the Company in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lenders.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Revolving Credit Borrowing in accordance with Section 2.05(c)(i),
the request for Specified Rate Loans submitted by the Swing Line Lenders
as set forth herein shall be deemed to be a request by the Swing Line
Lenders that each of the Multicurrency Revolving Credit Lenders fund its
risk participation in the relevant Swing Line Loan and each Multicurrency
Revolving Credit Lender's payment to the Administrative Agent for
53
the account of the Swing Line Lenders pursuant to Section 2.05(c)(i) shall
be deemed payment in respect of such participation.
(iii) If any Multicurrency Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the Swing Line
Lenders 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 Lenders shall be entitled to recover
from such 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 Lenders at a rate per annum equal to the
applicable Federal Funds Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the
Swing Line Lenders (or either of them) in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender's Committed Loan included in
the relevant Committed Borrowing or funded participation in the relevant
Swing Line Loan, as the case may be. A certificate of the Swing Line
Lenders submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error.
(iv) Each Multicurrency Revolving Credit Lender's obligation to make
Revolving Credit 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
Lender may have against any Swing Line Lender, the Borrowers 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 that each Multicurrency
Revolving Credit Lender's obligation to make Revolving Credit Loans
pursuant to this Section 2.05(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Company of a Committed Loan
Notice). No such funding of risk participations shall relieve or otherwise
impair the obligation of the Company to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations. (i) At any time after any Multicurrency
Revolving Credit Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Lenders receive any payment on account of such
Swing Line Loan, the Swing Line Lenders will distribute to such Lender its Pro
Rata Share of such payment in the same funds as those received by the Swing Line
Lenders.
(ii) If any payment received by the Swing Line Lenders in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lenders under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by the Swing Line
Lenders in their discretion), each Multicurrency Revolving Credit Lender
shall pay to the Swing Line Lenders its Pro Rata Share 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
54
applicable Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lenders.
(e) Interest for Account of Swing Line Lenders. The Swing Line Lenders
shall be responsible for invoicing the Company for interest on the Swing Line
Loans. Until each Multicurrency Revolving Credit Lender funds its Specified Rate
Loan or risk participation pursuant to this Section 2.05 to refinance such
Lender's Pro Rata Share of any Swing Line Loan, interest in respect of such Pro
Rata Share shall be solely for the account of the Swing Line Lenders.
(f) Payments Directly to Swing Line Lenders. The Company shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to each Swing Line Lender.
Section 2.06. Prepayments. (a) Optional. (i) Each Borrower may, upon
notice from the Company to the Administrative Agent, at any time or from time to
time, voluntarily prepay the Term Loans and Revolving Credit Loans in whole or
in part without premium or penalty; provided that (A) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (1) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Dollars, (2) four Business Days prior to any date of prepayment
of Eurocurrency Rate Loans denominated in Alternative Currencies and (3) on the
date of prepayment of Base Rate Committed Loans; (B) any prepayment of
Eurocurrency Rate Committed Loans shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 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 Class(es) and
Type(s) of Committed Loans to be prepaid. The Administrative Agent will promptly
notify each Appropriate Lender of its receipt of each such notice, and of the
amount of such Lender's Pro Rata Share of such prepayment. If such notice is
given by the Company, 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 Eurocurrency Rate Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.07. Each prepayment of the Loans pursuant
to this Section 2.06(a) shall be applied among the Facilities in such amounts as
the Company may direct in its sole discretion, provided that any such prepayment
of the Term Loans shall be applied against the then remaining scheduled
amortization payments under the Term Loans in order of their maturities. Each
prepayment in respect of a particular Facility shall be paid to the Appropriate
Lenders in accordance with their respective Pro Rata Shares.
(ii) No Bid Loan may be prepaid without the prior consent of the
applicable Bid Loan Lender; provided that in connection with the repayment
in full or refinancing of all of the Facilities, if any Bid Loan is
outstanding at such time, the Company shall be permitted to deposit with
the Administrative Agent cash or deposit account balances (or a letter of
credit) pursuant to documentation reasonably satisfactory to such Bid Loan
Lender in an amount equal to the sum of the outstanding principal amount
of such Bid Loan and the remaining interest payments on such Bid Loan.
55
(iii) The Company may, upon notice to the Swing Line Lenders (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 (A) such notice must be received by the Swing Line
Lenders and the Administrative Agent not later than 3:00 p.m. on the date
of the prepayment, (B) any such prepayment shall be in a minimum principal
amount of the lesser of $100,000 and the total principal amount of the
Swing Line Loans then outstanding and (C) any such prepayment shall be
applied ratably to the outstanding Swing Line Loans held by the respective
Swing Line Lenders. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.
(iv) Notwithstanding anything to the contrary contained in this
Agreement, the Company may rescind any notice of prepayment under Section
2.06(a)(i) or 2.06(a)(iii) if such prepayment would have resulted from a
refinancing of all of the Facilities, which refinancing shall not be
consummated or shall otherwise be delayed.
(b) Mandatory.
(i) (A) If (1) any Restricted Company Disposes of any property or
assets pursuant to Section 7.05(l)(ii), Section 7.05(q) or Section
7.05(s), or (2) any Casualty Event occurs, which in the aggregate results
in the realization or receipt by any Restricted Company of Net Cash
Proceeds in excess of $1,000,000 in any fiscal year, the Company shall
cause to be prepaid on or prior to the date which is ten Business Days
after the date of the realization or receipt of such Net Cash Proceeds an
aggregate principal amount of Term Loans in an amount equal to 100% of all
Net Cash Proceeds received; provided that no such prepayment shall be
required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such
date, the Company shall have given written notice to the Administrative
Agent of its intention to reinvest all or a portion of such Net Cash
Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only
be made if no Event of Default has occurred and is then continuing);
(B) With respect to any Net Cash Proceeds realized or received
with respect to any Disposition or any Casualty Event required to be
applied in accordance with Section 2.06(b)(i)(A), at the option of
the Company, and so long as no Event of Default shall have occurred
and be continuing, the Company may reinvest all or any portion of
such Net Cash Proceeds in the acquisition, improvement or
maintenance of assets useful in the operations of the Restricted
Companies (1) in the case of any Net Cash Proceeds received with
respect to any Disposition, within (x) 12 months following receipt
of such Net Cash Proceeds or (y) if the Company enters into a
contract to reinvest such Net Cash Proceeds within such 12 month
period following receipt thereof, 18 months following receipt of
such Net Cash Proceeds and (2) in the case of any Net Cash Proceeds
received with respect to any Casualty Event, within (x) 24 months
following receipt of such Net Cash Proceeds or (y) if the Company
enters into a contract to reinvest such Net Cash Proceeds within
such 24 month period following receipt thereof, 30 months following
receipt of such Net Cash Proceeds; provided that if
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any Net Cash Proceeds are no longer intended to be so reinvested at
any time after delivery of a notice of reinvestment election or are
not so reinvested during (I) in the case of any such Disposition,
such 12 month period or 18 month period, as applicable and (II) in
the case of any such Casualty Event, such 24 month period or 30
month period, as applicable, an amount equal to any such Net Cash
Proceeds shall be immediately applied to the prepayment of the Term
Loans as set forth in this Section 2.06.
(ii) If any Restricted Company incurs or issues any Indebtedness not
expressly permitted to be incurred or issued pursuant to Section 7.03, the
Company shall cause to be prepaid an aggregate principal amount of Term
Loans in an amount equal to 100% of all Net Cash Proceeds received
therefrom on or prior to the date which is five Business Days after the
receipt of such Net Cash Proceeds.
(iii) Each prepayment of Term Loans pursuant to this Section 2.06(b)
shall be applied in direct order of maturities to the principal repayment
installments of the Term Loans that are due after the date of such
prepayment. Each such prepayment shall be paid to the Lenders in
accordance with their respective Pro Rata Shares.
(iv) The Borrowers shall notify the Administrative Agent in writing
of any mandatory prepayment of Term Loans required to be made pursuant to
clauses (i) and (ii) of this Section 2.06(b) at least (A) in the case of
the prepayment of Term Loans which are Base Rate Loans, three Business
Days and (B) in the case of prepayments of Term Loans which are
Eurocurrency Rate Loans, five Business Days, in each case prior to the
date of such prepayment. Each such notice shall specify the date of such
prepayment and provide a reasonably detailed calculation of the amount of
such prepayment. The Administrative Agent will promptly notify each
Appropriate Lender of the contents of the Borrowers' prepayment notice and
of such Appropriate Lender's Pro Rata Share of the prepayment.
(v) If the Administrative Agent notifies the Company at any time
that the Total Revolving Outstandings at such time exceed an amount equal
to 105% of the Aggregate Revolving Credit Commitments then in effect,
then, within five Business Days after receipt of such notice, the
Borrowers shall prepay Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount sufficient to reduce the Total Revolving
Outstandings as of such date of payment to an amount not to exceed 100% of
the Aggregate Revolving Credit Commitments then in effect (provided that
in the case of any Eurocurrency Rate Loan, if the Borrowers deposit in an
escrow account on terms satisfactory to the Administrative Agent an amount
(the "ESCROWED AMOUNT") for the prepayment of such Eurocurrency Rate Loan
on the last day of then next-expiring Interest Period for such
Eurocurrency Rate Loan, the Total Revolving Outstandings shall be deemed
to be reduced by an amount equal to the Escrowed Amount for purposes of
this Section 2.06(b)(v), it being agreed and understood that interest in
respect of any Escrowed Amount shall continue to accrue thereon at the
rate provided hereunder for the Eurocurrency Rate Loan which such Escrowed
Amount is intended to repay until such Escrowed Amount shall have been
used in full to repay such Euroccurency Rate Loan)
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(c) Funding Losses, Etc. All prepayments under this Section 2.06 shall be
made together with, in the case of any such prepayment of a Eurocurrency Rate
Loan on a date other than the last day of an Interest Period therefor, any
amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section
3.07. Notwithstanding any of the other provisions of Section 2.06(b), so long as
no Event of Default shall have occurred and be continuing, if any prepayment of
Eurocurrency Rate Loans is required to be made under Section 2.06(b), other than
on the last day of the Interest Period therefor, the Company may, in its sole
discretion, deposit the amount of any such prepayment otherwise required to be
made thereunder into a Cash Collateral Account until the last day of such
Interest Period, at which time the Administrative Agent shall be authorized
(without any further action by or notice to or from the Company or any other
Loan Party) to apply such amount to the prepayment of such Loans in accordance
with Section 2.06(b). Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent shall also be authorized (without any
further action by or notice to or from the Company or any other Loan Party) to
apply such amount to the prepayment of the outstanding Loans in accordance with
Section 2.06(b).
Section 2.07. Termination or Reduction of Commitments. (a) Optional. The
Company may, upon written notice to the Administrative Agent, terminate the
Aggregate Revolving Credit Commitments, or from time to time permanently reduce
the Aggregate Revolving Credit Commitments of any Tranche; provided that (i) any
such notice shall be received by the Administrative Agent one Business Day prior
to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount (A) of $500,000 or any whole multiple of $100,000 in
excess thereof or (B) equal to the Aggregate Revolving Credit Commitments of
such Tranche at such time, (iii) if, after giving effect to any reduction of the
Aggregate Revolving Credit Commitments, (A) the Letter of Credit Sublimit, the
Swing Line Sublimit, the US Dollar Revolving Credit Facility or the
Multicurrency Revolving Credit Facility exceeds the amount of the Aggregate
Revolving Credit Commitments, such sublimit or facility commitments shall be
automatically reduced by the amount of such excess. Notwithstanding the
foregoing, the Company may rescind or postpone any notice of termination of the
Aggregate Revolving Credit Commitments if such termination would have resulted
from a refinancing of all of the Facilities, which refinancing shall not be
consummated or otherwise shall be delayed.
(b) Mandatory. Subject to Section 2.16, the Term Commitment of each Term
Lender shall be automatically and permanently reduced to $0 on the Closing Date
upon the funding of the Term Loans in accordance with Section 2.01. The
Revolving Credit Commitments shall be automatically and permanently reduced to
$0 on the Maturity Date.
(c) Application of Commitment Reductions; Payment of Fees. The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit or the Swing Line
Sublimit or the unused Commitments of any Class or Tranche under this Section
2.07. Upon any reduction of unused Commitments of any Class or Tranche, the
Commitment of each Lender of such Class or Tranche shall be reduced by such
Lender's Pro Rata Share of the amount by which such Commitments are reduced
(other than the termination of the Commitment of any Lender as provided in
Section 3.09). All facility fees accrued until the effective date of any
termination of the Revolving Credit Commitments shall be paid on the effective
date of such termination.
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Section 2.08. Repayment of Loans. (a) Term Loans. The Company shall repay
to the Administrative Agent for the ratable account of the Term Lenders the
aggregate principal amount of all Term Loans outstanding in quarterly
installments as follows (which installments shall be (i) reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.06(b)(iii) and (ii) increased by an amount equal to (x) in
the case of each installment other than the installment payable on the Maturity
Date, an amount equal to the applicable quarterly installment amount of any
Additional Term Loans made pursuant to Section 2.16 as additional Term Loans and
(y) in the case of the installment payable on the Maturity Date, an amount equal
to the remainder of the aggregate principal amount of any such Additional Term
Loans made as additional Term Loans), each such payment to be made on or prior
to the date specified below:
AGGREGATE TERM LOAN PRINCIPAL
PAYMENT DATE AMORTIZATION PAYMENT
------------------------------- -----------------------------
March 31, 2007 $ 13,125,000
June 30, 2007 $ 13,125,000
September 30, 2007 $ 13,125,000
December 31, 2007 $ 13,125,000
March 31, 2008 $ 13,125,000
June 30, 2008 $ 13,125,000
September 30, 2008 $ 13,125,000
December 31, 2008 $ 13,125,000
March 31, 2009 $ 26,250,000
June 30, 2009 $ 26,250,000
September 30, 2009 $ 26,250,000
December 31, 2009 $ 26,250,000
March 31, 2010 $ 52,500,000
June 30, 2010 $ 52,500,000
September 30, 2010 $ 52,500,000
December 31, 2010 $ 52,500,000
March 31, 2011 $ 52,500,000
June 30, 2011 $ 52,500,000
September 30, 2011 $ 52,500,000
Maturity Date $ 1,522,500,000
provided that the final principal repayment installment of the Term Loans shall
be repaid on the Maturity Date and in any event shall be in an amount equal to
the aggregate principal amount of all Term Loans outstanding on such date.
(b) Revolving Credit Loans. Each Borrower shall repay to the
Administrative Agent for the ratable account of the applicable Revolving Credit
Lenders on the Maturity Date the aggregate principal amount of all of its
Revolving Credit Loans outstanding on such date.
(c) The Company shall repay each Bid Loan on the last day of the Interest
Period in respect thereof.
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(d) Swing Line Loans. The Company shall repay its Swing Line Loans on the
earlier to occur of (i) the date ten (10) Business Days after such Loan is made
and (ii) the Maturity Date.
Section 2.09. Interest. (a) Subject to the provisions of Section 2.09(b),
(i) each Eurocurrency Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Margin plus
(in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State) the
Mandatory Cost, (ii) each Committed 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 Margin, (iii) each Bid
Loan shall bear interest on the outstanding principal amount thereof for the
Interest Period therefor at a rate per annum equal to the Eurocurrency Rate for
such Interest Period plus (or minus) the Eurocurrency Bid Margin, or at the
Absolute Rate for such Interest Period, as the case may be, and (iv) 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 Federal Funds
Rate plus the Applicable Margin for Eurocurrency Rate Revolving Credit Loans, or
at such other rates as may be agreed between the Company and the Swing Line
Lenders.
(b) While any Event of Default set forth in Section 8.01(a) or (f) exists
(but, in the case of any Event of Default set forth in Section 8.01(a), only
upon the election of the Administrative Agent or the Required Lenders), the
Borrowers shall pay interest on all overdue Obligations hereunder (regarding
which all applicable grace periods set forth in Section 8.01 have expired) at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. 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 judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
Section 2.10. Fees. In addition to certain fees described in Sections
2.04(i) and (j):
(a) Facility Fee. The Borrowers shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Pro Rata
Share, a facility fee in Dollars equal to the Applicable Margin times the actual
daily amount of the Aggregate Revolving Credit Commitments (or, if the Aggregate
Revolving Credit Commitments have terminated, on the Outstanding Amount of all
Committed Loans, Swing Line Loans and L/C Obligations), regardless of usage. The
facility fee shall accrue at all times from the date hereof until the date on
which the Aggregate Revolving Credit Commitments have terminated, the
Outstanding Amounts on all Committed Loans and Swing Line Loans have been paid
and the Outstanding Amounts on all L/C Obligations have been paid or Cash
Collateralized (the "TERMINATION DATE"), including at any time during which one
or more of the conditions in Article 4 is not met, and shall be due and payable
quarterly in
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arrears on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Termination Date. The facility fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Margin during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect.
(b) Other Fees. The Borrowers shall pay to the Agents 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.
Section 2.11. Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by JPMCB'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), or, in the case of interest in respect of Committed Loans
denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice. 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 2.13(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.
Section 2.12. Evidence of Indebtedness. (a) The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and evidenced by one or more entries in the Register maintained by
the Administrative Agent, acting solely for purposes of Treasury Regulation
Section 5f.103-1(c), as agent for the Borrowers, in each case in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be prima facie evidence 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 to a Borrower made
through the Administrative Agent, such Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note payable to such Lender,
which shall evidence such Lender's Loans to such Borrower in addition to such
accounts or records. Each Lender may attach schedules to a Note and endorse
thereon the date, Type (if applicable), amount, currency and maturity of its
Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section
2.12(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records and, in the case of the
Administrative Agent, entries in the Register, evidencing the purchases and
sales by such 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 Lender in
respect of such matters, the accounts and records of the Administrative
61
Agent shall control in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to Section 2.12(a) and (b), and by each Lender in its account or
accounts pursuant to Section 2.12(a) and (b), shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the
other Loan Documents, absent manifest error; provided that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrowers under this Agreement and
the other Loan Documents.
Section 2.13. Payments Generally. (a) 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 and
except with respect to principal of and interest on Loans denominated in an
Alternative Currency, 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 applicable Administrative Agent's Office in Dollars
and in Same Day Funds not later than 2:00 p.m. (or, in the case of Section
2.06(a)(iii), 3:00 p.m.) on the date specified herein. Except as otherwise
expressly provided herein, all payments by the Borrowers hereunder with respect
to principal and interest on Loans denominated in an Alternative Currency shall
be made to the Administrative Agent, for the account of the respective Lenders
to which such payment is owed, at the applicable Administrative Agent's Office
in such Alternative Currency and in Same Day Funds not later than the Applicable
Time specified by the Administrative Agent on the dates specified herein.
Without limiting the generality of the foregoing, the Administrative Agent may
require that any payments due under this Agreement be made in the United States.
If, for any reason, any Borrower is prohibited by any Law from making any
required payment hereunder in an Alternative Currency, such Borrower shall make
such payment in Dollars in the Dollar Equivalent of the Alternative Currency
payment amount. The Administrative Agent will promptly distribute to each Lender
its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent (i) after 2:00 p.m.
(or, in the case of Section 2.06(a)(iii), 3:00 p.m.), in the case of payments in
Dollars, or (ii) after the Applicable Time specified by the Administrative Agent
in the case of payments in an Alternative Currency, shall in each case 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) Unless a Borrower or any Lender has notified the Administrative Agent,
prior to the date any payment is required to be made by it to the Administrative
Agent hereunder, that such Borrower or such Lender, as the case may be, will not
make such payment, the Administrative Agent may assume that such Borrower or
such Lender, as the case may be, has timely made such payment and may (but shall
not be so required to), in reliance thereon, make
62
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if a Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in Same Day Funds at the Overnight Rate; and
(ii) if any Lender failed to make such payment with respect to any
Committed Borrowing, such Lender shall forthwith on demand pay to the
Administrative Agent the amount thereof in Same Day Funds together with
interest thereon for the period from the date such amount was made
available by the Administrative Agent to the relevant Borrower to the date
such amount is recovered by the Administrative Agent (the "COMPENSATION
PERIOD") at a rate per annum equal to the Overnight Rate. When such Lender
makes payment to the Administrative Agent (together with all accrued
interest thereon), then such payment amount (excluding the amount of any
interest which may have accrued and been paid in respect of such late
payment) shall constitute such Lender's Committed Loan included in the
applicable Committed Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrowers, and
the Borrowers shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Committed
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or a Borrower with
respect to any amount owing under this Section 2.13(b) shall be conclusive,
absent manifest error.
(c) 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 2, and such funds are not made available to the relevant Borrower
by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article 4 are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.
(d) The obligations of the Lenders hereunder to make Committed Loans and
to fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Committed Loan or to fund any
such participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its
Committed Loan or purchase its participation.
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(e) 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.
(f) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Administrative Agent and the Lenders under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order of priority set forth in
Section 8.03. If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents under
circumstances for which the Loan Documents do not specify the manner in which
such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each of the Lenders in
accordance with such Lender's Pro Rata Share of the sum of (i) the Outstanding
Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of
all L/C Obligations outstanding at such time, in repayment or prepayment of such
of the outstanding Loans or other Obligations then owing to such Lender.
Section 2.14. Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans made
by it, or the participations in L/C Obligations or in Swing Line Loans held by
it, any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them and/or such subparticipations
in the participations in L/C Obligations or Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Committed Loans or such participations, as
the case may be, pro rata with each of them; provided that if all or any portion
of such excess payment is thereafter recovered from the purchasing Lender under
any of the circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrowers agree that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
setoff, but subject to Section 11.10) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrowers in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.14 and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.14 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under
64
this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section 2.15. Designated Borrowers.
(a) The Company may at any time, upon not less than ten (10) Business
Days' notice from the Company to the Administrative Agent (or such shorter
period as may be agreed by the Administrative Agent in its sole discretion),
designate any Restricted Subsidiary of the Company (an "APPLICANT BORROWER") as
a Designated Borrower to receive Revolving Credit Loans hereunder that are
denominated in an Alternative Currency by delivering to the Administrative Agent
(which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit H (a
"DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT"). The parties hereto
acknowledge and agree that prior to any Applicant Borrower becoming entitled to
utilize the credit facilities provided for herein the Administrative Agent and
the Lenders shall have received such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information, in form,
content and scope reasonably satisfactory to the Administrative Agent, as may be
required by the Administrative Agent or the Required Lenders in their sole
discretion, and Notes signed by such new Borrowers to the extent any Lenders so
require. Promptly following receipt of all such requested resolutions,
incumbency certificates, opinions of counsel and other documents or information,
the Administrative Agent shall send a notice in substantially the form of
Exhibit I (a "DESIGNATED BORROWER NOTICE") to the Company and the Lenders
specifying the effective date upon which the Applicant Borrower shall constitute
a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees
to permit such Designated Borrower to receive Revolving Credit Loans hereunder
that are denominated in an Alternative Currency, on the terms and conditions set
forth herein; provided that no Committed Loan Notice or Letter of Credit
Application may be submitted by or on behalf of such Designated Borrower until
the date that is five Business Days after such effective date.
(b) The Obligations of the Company and each Designated Borrower that is a
Domestic Subsidiary shall be joint and several in nature. The Obligations of all
Designated Borrowers that are Foreign Subsidiaries shall be several in nature.
(c) Each Restricted Subsidiary of the Company that becomes a "Designated
Borrower" pursuant to this Section 2.15 hereby irrevocably appoints the Company
as its agent for all purposes relevant to this Agreement and each of the other
Loan Documents, including (i) the giving and receipt of notices (including as
agent for service of process), (ii) the execution and delivery of all documents,
instruments and certificates contemplated herein and all modifications hereto,
and (iii) the receipt of the proceeds of any Loans made by the Lenders to any
such Designated Borrower hereunder. Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall be
valid and effective if given or taken only by the Company, whether or not any
such other Borrower joins therein. Any notice, demand, consent, acknowledgement,
direction, certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to have been
delivered to each Designated Borrower.
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(d) The Company may from time to time, upon not less than ten (10)
Business Days' notice from the Company to the Administrative Agent (or such
shorter period as may be agreed by the Administrative Agent in its sole
discretion), terminate a Designated Borrower's status as such, provided that
there are no outstanding Loans or L/C Obligations payable by such Designated
Borrower, or other amounts payable by such Designated Borrower on account of any
Loans or Letters of Credit made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any
such termination of a Designated Borrower's status.
(e) Notwithstanding anything to the contrary herein, the status of any
Subsidiary as a Designated Borrower shall terminate immediately if, at any time,
the Company and such Subsidiary are not able to make any of the representations
set forth below with respect to such Subsidiary at such time (the occurrence of
such situation with respect to such Subsidiary, a "SPECIFIED REPRESENTATION
DEFAULT"):
(i) Such Designated Borrower is subject to civil and commercial Laws
with respect to its obligations under this Agreement and the other Loan
Documents to which it is a party (collectively as to such Designated
Borrower, the "APPLICABLE DESIGNATED BORROWER DOCUMENTS"), and the
execution, delivery and performance by such Designated Borrower of the
Applicable Designated Borrower Documents constitute and will constitute
private and commercial acts and not public or governmental acts. Neither
such Designated Borrower nor any of its property has any immunity from
jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under the laws of the jurisdiction in
which such Designated Borrower is organized and existing in respect of its
obligations under the Applicable Designated Borrower Documents.
(ii) The Applicable Designated Borrower Documents are in proper
legal form under the Laws of the jurisdiction in which such Designated
Borrower is organized and existing for the enforcement thereof against
such Designated Borrower under the Laws of such jurisdiction, and to
ensure the legality, validity, enforceability, priority or admissibility
in evidence of the Applicable Designated Borrower Documents.
(iii) It is not necessary to ensure the legality, validity,
enforceability, priority or admissibility in evidence of the Applicable
Designated Borrower Documents that the Applicable Designated Borrower
Documents be filed, registered or recorded with, or executed or notarized
before, any court or other authority in the jurisdiction in which such
Designated Borrower is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of the Applicable
Designated Borrower Documents or any other document, except for (i) any
such filing, registration, recording, execution or notarization as has
been made or is not required to be made until the Applicable Designated
Borrower Document or any other document is sought to be enforced and (ii)
any charge or tax as has been timely paid.
(iv) There is no tax, levy, impost, duty, fee, assessment or other
governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Designated
Borrower is organized and existing either (i)
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on or by virtue of the execution or delivery of the Applicable Designated
Borrower Documents or (ii) on any payment to be made by such Designated
Borrower pursuant to the Applicable Designated Borrower Documents, except
as has been disclosed to the Administrative Agent.
(v) The execution, delivery and performance of the Applicable
Designated Borrower Documents executed by such Designated Borrower are,
under applicable foreign exchange control regulations of the jurisdiction
in which such Designated Borrower is organized and existing, not subject
to any notification or authorization except (i) such as have been made or
obtained or (ii) such as cannot be made or obtained until a later date
(provided that any notification or authorization described in clause (ii)
shall be made or obtained as soon as is reasonably practicable).
The Company agrees to give prompt notice to the Administrative Agent of any
Specified Representation Default with respect to any Subsidiary that is a
Designated Borrower, and within the later of (x) five (5) Business Days after
the occurrence of such Specified Representation Default or (y) in the case of
Eurocurrency Rate Loans, the ending date of the applicable Interest Period, such
Subsidiary shall pay in full the unpaid principal of and interest on all its
outstanding Loans and Cash Collateralize the then Outstanding Amount of all its
L/C Obligations (in an amount equal to the then Outstanding Amount thereof),
failing which the Company shall forthwith make such payments and post such Cash
Collateral pursuant to its guarantee thereof set forth in Article 10. Nothing in
this Section 2.15(e) shall limit or otherwise affect the Guarantor Parties'
obligations under Article 10.
Section 2.16. Increase in Commitments. (a) Upon notice to the
Administrative Agent (which shall promptly notify the Lenders), at any time
after the Closing Date, the Company may on up to ten different occasions request
additional Term Commitments and/or additional Revolving Credit Commitments;
provided that (i) after giving effect to any such addition, the aggregate amount
of all additional Term Commitments and additional Revolving Credit Commitments
that have been added pursuant to this Section 2.16 shall not exceed
$600,000,000, and (ii) any such addition shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the
"ADDITIONAL TERM LOANS") may be made, at the option of the Company, either by
(i) increasing the Term Loans with the same terms (including pricing) as the
existing Term Loans, or (ii) creating a new tranche of terms loans (an
"ADDITIONAL TERM LOAN TRANCHE"); provided that any Additional Term Loan Tranche
(A) shall not mature prior to the stated Maturity Date and (B) the Weighted
Average Life to Maturity of any Additional Term Loan Tranche shall be no less
than the Weighted Average Life to Maturity of the Term Loans.
(c) Any such additional Revolving Credit Commitments (the "ADDITIONAL
REVOLVING CREDIT COMMITMENTS") may be made, at the option of the Company, by
either (i) increasing the US Dollar Revolving Credit Commitments or the
Multicurrency Revolving Credit Commitments with the same terms (including
pricing and currency) as the existing US Dollar Revolving Credit Commitments or
Multicurrency Revolving Credit Commitments, as the case may be or (ii) creating
a new tranche of the Multicurrency Revolving Credit Facility with the Additional
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Revolving Credit Commitments of Lenders willing to fund in an Additional
Alternative Currency pursuant to which Multicurrency Revolving Credit Loans
under such new tranche may be denominated in such Additional Alternative
Currency.
(d) At the time of the sending of notice requesting additional Term
Commitments and/or additional Revolving Credit Commitments, the Company (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). Each
Lender shall notify the Administrative Agent within such time period whether or
not it agrees to provide an additional Term Commitment or Revolving Credit
Commitment, as applicable, and, if so, whether by an amount equal to, greater
than, or less than its Pro Rata Share of such requested increase (which shall be
calculated on the basis of the amount of the funded and unfunded exposure under
all the Facilities held by each Lender). Any Lender not responding within such
time period shall be deemed to have declined to provide an additional Term
Commitment or Revolving Credit Commitment, as applicable. The Administrative
Agent shall notify the Company and each Lender of the Lenders' responses to each
request made hereunder. To achieve the full amount of a requested increase, the
Company may also invite additional Eligible Assignees to become Term Lenders or
Revolving Credit Lenders, as applicable, pursuant to a joinder agreement in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel.
(e) If any Term Commitments or Revolving Credit Commitments are added in
accordance with this Section 2.16, the Administrative Agent and the Company
shall determine the effective date (the "ADDITIONAL COMMITMENTS EFFECTIVE DATE")
and the final allocation of such addition. The Administrative Agent shall
promptly notify the Company and the Lenders of the final allocation of such
addition and the Additional Commitments Effective Date. As a condition precedent
to such addition, the Company shall deliver to the Administrative Agent a
certificate of the Company dated as of the Additional Commitments Effective Date
signed by a Responsible Officer of the Company certifying that, before and after
giving effect to such increase, (i) the representations and warranties contained
in Article 5 and the other Loan Documents are true and correct in all material
respects on and as of the Additional Commitments Effective Date, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall have been true and correct in all material
respects as of such earlier date, and except that for purposes of this Section
2.16(e), the representations and warranties contained in Section 5.05(a) and (b)
shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section 6.01, and (ii) no Default
exists before or after giving effect to such addition.
(f) On each Additional Commitments Effective Date, (i) each Lender or
Eligible Assignee which is providing an additional Term Commitment (A) shall
become a "Term Lender" for all purposes of this Agreement and the other Loan
Documents, and (B) shall make an Additional Term Loan to the Company in a
principal amount equal to such additional Term Commitment, and such Additional
Term Loan shall be a "Term Loan" for all purposes of this Agreement and the
other Loan Documents (except that the interest rate applicable to any Additional
Term Loan under an Additional Term Loan Tranche may be as agreed by the Company
and the applicable Lenders providing the additional Term Commitments) and (ii)
each Lender or Eligible Assignee which is providing an additional Revolving
Credit Commitment
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shall become a "Revolving Credit Lender" for all purposes of this Agreement and
the other Loan Documents with a Revolving Credit Commitment that is increased by
(in the case of an existing Revolving Credit Lender) or equal to (in the case of
a new Revolving Credit Lender) such additional Revolving Credit Commitment.
ARTICLE 3
TAXES, INCREASED COSTS AND ILLEGALITY
Section 3.01. Taxes. (a) Except as provided in this Section 3.01, any and
all payments by any Borrower to or for the account of any Agent or any Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with respect thereto,
excluding, in the case of each Agent and each Lender, taxes imposed on or
measured by its net income or overall gross income (including branch profits),
and franchise (and similar) taxes imposed on it in lieu of net income taxes, by
the jurisdiction (or any political subdivision thereof) under the Laws of which
such Agent or such Lender, as the case may be, is organized, is (or was, during
the relevant period) doing business or maintains a Lending Office, and all
liabilities (including additions to tax, penalties and interest) with respect
thereto (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as "TAXES"). Notwithstanding anything to the contrary
contained herein, any withholding tax imposed at any time on payments made by or
on behalf of a Designated Borrower to any Lender hereunder or under any other
Loan Document shall be deemed to be Taxes hereunder so long as such Lender shall
have complied with Section 11.16.
(b) If any Borrower shall be required by any Laws to deduct any Taxes from
or in respect of any sum payable under any Loan Document to any Agent or any
Lender, (i) except to the extent provided in Sections 3.01(e) and 3.01(f) below,
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.01), each of such Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions, (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, such Borrower shall furnish to such Agent or Lender (as the case may
be) the original or a certified copy of a receipt evidencing payment thereof to
the extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative Agent.
(c) Each Borrower also agrees to pay any and all present or future stamp,
court or documentary taxes and any other excise, property, intangible or
mortgage recording taxes or charges or similar levies which arise from any
payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "OTHER TAXES").
(d) Each Borrower agrees to indemnify each Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by
69
any jurisdiction on amounts payable under this Section 3.01) paid by such Agent
and such Lender, and (ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided such Agent or Lender,
as the case may be, provides such Borrower with a written statement thereof
setting forth in reasonable detail the basis and calculation of such amounts.
Payment under this Section 3.01(d) shall be made within 30 days after the date
such Lender or such Agent makes a demand therefor.
(e) No Borrower shall be required pursuant to this Section 3.01 to pay any
additional amount to, or to indemnify, any Lender or Agent, as the case may be,
to the extent that such Lender or such Agent becomes subject to Taxes subsequent
to the Closing Date (or, if later, the date such Lender or Agent becomes a party
to this Agreement) as a result of a change in the place of organization of such
Lender or Agent or a change in the Lending Office of such Lender, except to the
extent that any such change is requested or required in writing by any Borrower
(and provided that nothing in this clause (e) shall be construed as relieving
any Borrower from any obligation to make such payments or indemnification in the
event of a change in Lending Office or place of organization that precedes a
change in Law to the extent such Taxes result from a change in Law).
(f) If a Lender or an Agent is subject to United States withholding tax at
a rate in excess of zero percent at the time such Lender or such Agent, as the
case may be, first becomes a party to this Agreement, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender or
Agent, as the case may be, provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided
that, if at the date of the Assignment and Assumption pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under clause (a) of this Section 3.01 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date.
(g) If any Lender or Agent shall become aware that it is entitled to
receive a refund in respect of amounts paid by any Borrower pursuant to this
Section 3.01, which refund in the good faith judgment of such Lender or Agent is
allocable to such payment, it shall promptly notify such Borrower of the
availability of such refund and shall, within 30 days after the receipt of a
request by such Borrower, apply for such refund; provided that in the sole
reasonable judgment of the Lender or Agent, applying for such refund would not
be disadvantageous to it.
(h) If any Lender or Agent receives a refund in respect of any Taxes or
Other Taxes as to which indemnification or additional amounts have been paid to
it by a Borrower pursuant to this Section 3.01, it shall promptly remit such
refund (including any interest included in such refund) to such Borrower (to the
extent that it determines that it can do so without prejudice to the retention
of the refund), net of all out-of-pocket expenses of the Lender or Agent, as the
case may be; provided that the relevant Borrower, upon the request of the Lender
or Agent, as the case may be, agrees promptly to return such refund to such
party in the event such party is
70
required to repay such refund to the relevant taxing authority. Such Lender or
Agent, as the case may be, shall, at such Borrower's request, provide such
Borrower with a copy of any notice of assessment or other evidence of the
requirement to repay such refund received from the relevant taxing authority;
provided that such Lender or Agent may delete any information therein that such
Lender or Agent deems confidential.
(i) Nothing in this Section 3.01 shall interfere with the right of a
Lender or Agent to arrange its tax affairs in whatever manner it thinks fit nor
oblige any Lender or Agent to claim any tax refund or to disclose any
information relating to its tax affairs or any computations in respect thereof
or require any Lender or Agent to do anything that would prejudice its ability
to benefit from any other refunds, credits, reliefs, remissions or repayments to
which it may be entitled.
Section 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 Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, then, on notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrowers shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable and such Loans are denominated in Dollars, convert all
Eurocurrency 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 Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon
any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
Section 3.03. Inability to Determine Rates. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an
Alternative Currency), or that the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, or that deposits
(whether in Dollars or an Alternative Currency) are not being offered to banks
in the applicable offshore interbank market for such currency for the applicable
amount and Interest Period of such Eurocurrency Rate Loan, the Administrative
Agent will promptly so notify the Borrowers and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Company may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Committed Loans
in the affected currency or currencies or, failing that,
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will be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.
Section 3.04. Increased Cost and Reduced Return. If any Lender determines
that as a result of the introduction of or any change in or in the
interpretation of any Law, in each case after the date hereof, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurocurrency Rate Loans or
(as the case may be) issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection with
any of the foregoing (excluding for purposes of this Section 3.04 any such
increased costs or reduction in amount resulting from (i) Taxes or Other Taxes
(as to which Section 3.01 and Section 11.16 shall govern), (ii) changes in the
basis of taxation of overall net income or overall gross income (including
branch profits), and franchise (and similar) taxes imposed in lieu of net income
taxes, by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized,
is doing business or maintains a Lending Office, (iii) reserve requirements
contemplated by Section 3.06 and (iv) the requirements of the Bank of England
and the Financial Services Authority or the European Central Bank reflected in
the Mandatory Cost to the extent the Mandatory Cost, as calculated hereunder, is
sufficient to cover the cost to the applicable Lender of complying with the
requirements of the Bank of England and/or the Financial Services Authority or
the European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans), then from time to time within 30 days following
written demand of such Lender setting forth in reasonable detail such increased
costs (with a copy of such demand to the Administrative Agent given in
accordance with Section 3.08), the Company shall pay (or cause the applicable
Designated Borrower to pay) to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
Section 3.05. Capital Adequacy. If any Lender determines that the
introduction of any Law regarding capital adequacy or any change therein or in
the interpretation thereof, in each case after the date hereof, or compliance by
such Lender (or its Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any Person controlling such
Lender as a consequence of such Lender's obligations hereunder (taking into
consideration such Lender's policies with respect to capital adequacy and
desired return on capital), then from time to time within 30 days following
written demand of such Lender setting forth in reasonable detail the charge and
the calculation of such reduced rate of return (with a copy of such demand to
the Administrative Agent given in accordance with Section 3.08), the Company
shall pay (or cause the applicable Designated Borrower to pay) to such Lender
such additional amounts as will compensate such Lender for such reduction.
Section 3.06. Reserves on Eurocurrency Rate Loans. (a) If any Lender is
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), the Company shall pay (or cause the applicable Designated
Borrower to pay) to such Lender additional interest on the unpaid principal
amount of each Eurocurrency Rate Loan 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 in the absence of manifest
error).
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(b) If any Lender is required to comply with any reserve ratio requirement
or analogous requirement of any other Governmental Authority imposed in respect
of the maintenance of the Commitments or the funding of the Eurocurrency Rate
Loans, the Company shall pay (or cause the applicable Designated Borrower to
pay) such additional costs (expressed as a percentage per annum and rounded
upwards, if necessary, to the nearest five decimal places) equal to the actual
costs allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive absent manifest
error) which in each case shall be due and payable on each date on which
interest is payable on such Loan. Any Lender requesting payment from any
Borrower under Section 3.06(a) or (b) shall give such Borrower at least fifteen
days' prior notice (with a copy to the Administrative Agent). If a Lender fails
to give notice fifteen days prior to the relevant Interest Payment Date, such
additional interest or cost shall be due and payable fifteen days from receipt
of such notice.
Section 3.07. Funding Losses. Upon demand of any Lender (with a copy to
the Administrative Agent), the Company shall promptly compensate (or cause the
applicable Designated Borrower to 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 the Company
or the applicable Designated Borrower; or
(c) any failure by any Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a
different currency;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by such Lender to maintain such Loan, any foreign exchange losses
or from fees payable to terminate the deposits from which such funds were
obtained or from the performance of any foreign exchange contract.
For purposes of calculating amounts payable by the Company (or the applicable
Designated Borrower) to any Lender under this Section 3.07, such Lender shall be
deemed to have funded each Eurocurrency Rate Committed Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable amount and for a
comparable period, whether or not such Eurocurrency Rate Committed Loan was in
fact so funded.
Section 3.08. Matters Applicable to All Requests for Compensation. (a) Any
Agent or any Lender claiming compensation under this Article 3 shall deliver a
certificate to the Company contemporaneously with the demand for payment setting
forth in reasonable detail a calculation of the additional amount or amounts to
be paid to it hereunder which shall be conclusive in the
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absence of manifest error. In determining such amount, such Agent or such Lender
may use any reasonable averaging and attribution methods.
(b) With respect to any Lender's claim for compensation under any of
Sections 3.01 through Section 3.07, no Borrower shall be required to compensate
such Lender for any amount incurred more than 180 days prior to the date that
such Lender notifies the relevant Borrower of the event that gives rise to such
claim; provided that, if the circumstance giving rise to such increased cost or
reduction is retroactive, then such 180-day period referred to above shall be
extended to include the period of retroactive effect thereof. If any Lender
requests compensation from any Borrower under any of Sections 3.04 through 3.06,
such Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender to make or continue from one
Interest Period to another Eurocurrency Rate Loans, or to convert Base Rate
Loans into Eurocurrency Rate Loans, until the event or condition giving rise to
such request ceases to be in effect (in which case the provisions of Section
3.08(c) shall be applicable); provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue from one Interest
Period to another any Eurocurrency Rate Loan (or to convert Base Rate Loans into
Eurocurrency Rate Loans) shall be suspended pursuant to Section 3.08(b) hereof,
such Lender's Eurocurrency Rate Loans shall be automatically converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for such
Eurocurrency Rate Loans (or, in the case of an immediate conversion required by
Section 3.02, on such earlier date as required by Law) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Sections 3.01 through 3.06 hereof that gave rise to such conversion no longer
exist:
(i) to the extent that such Lender's Eurocurrency Rate Loans have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurocurrency Rate Loans shall be
applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurocurrency Rate Loans shall
be made or continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be converted into Eurocurrency Rate
Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to any Borrower (with a copy to the
Administrative Agent) that the circumstances specified in any of Sections 3.01
through 3.06 that gave rise to the conversion of such Lender's Eurocurrency Rate
Loans pursuant to this Section 3.08 no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) at a time when
Eurocurrency Rate Loans made by other Lenders are outstanding, such Lender's
Base Rate Loans shall be automatically converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurocurrency Rate Loans,
to the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata
(as to principal amounts, interest rate basis, and Interest Periods) in
accordance with their respective Commitments.
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(e) Each Lender agrees that (i) upon the occurrence of any event giving
rise to the operation of Section 3.01(b) or (d) with respect to such Lender it
will, if requested by any Borrower, use commercially reasonable efforts (subject
to such Lender's internal policies and any legal or regulatory restrictions) to
avoid the consequences of such event, including to designate another Lending
Office for any Loan or Letter of Credit affected by such event and (ii) if any
Lender (A) requests compensation under any of Sections 3.04 through 3.06, or (B)
notifies any Borrower that it has determined that it is unlawful for its
applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or
to determine or charge interest rates based upon the Eurocurrency Rate, then
such Lender will, if requested by such Borrower, use commercially reasonable
efforts to designate another Lending Office for any Loan or Letter of Credit
affected by such event; provided that in each case, such efforts are made on
terms that, in the reasonable judgment of such Lender, cause such Lender and its
Lending Office(s) to suffer no material economic, legal or regulatory
disadvantage, and provided further that nothing in this Section 3.08(e) shall
affect or postpone any of the Obligations of any Borrower or the rights of such
Lender pursuant to Section 3.01(b) or (d), 3.02 or 3.04 through 3.06.
Section 3.09. Replacement of Lenders Under Certain Circumstances. (a) If
at any time:
(i) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section 3.01 or Sections 3.04 through
3.06, as a result of any condition described in such Sections or any
Lender ceases to make Eurocurrency Rate Loans as a result of any condition
described in Section 3.02 or Sections 3.04 through 3.06,
(ii) any Lender becomes a Defaulting Lender or
(iii) any Lender becomes a "Non-Consenting Lender" (as defined below
in this Section 3.09),
then the Company may, on ten Business Days' prior written notice to the
Administrative Agent and such Lender, either:
(iv) replace such Lender by causing such Lender to (and such Lender
shall be obligated to) assign 100% of its relevant Commitments and the
principal of its relevant outstanding Loans plus any accrued and unpaid
interest pursuant to Section 11.07(d) (with the assignment fee to be paid
by such Borrower unless waived by the Administrative Agent in such
instance) all of its relevant rights and obligations under this Agreement
to one or more Eligible Assignees; provided that (A) the replacement
Lender shall agree to the consent, waiver or amendment to which the
Non-Consenting Lender did not agree and (B) neither the Administrative
Agent nor any Lender shall have any obligation to any Borrower to find a
replacement Lender or other such Person or
(v) terminate the Commitment of such Lender and repay all
obligations of the Borrowers owing to such Lender relating to the Loans
and participations held by such Lender as of such termination date.
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(b) Any Lender being replaced pursuant to Section 3.09(a) above shall (i)
execute and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans and participations in L/C Obligations and Swing
Line Loans, and (ii) deliver any Notes evidencing such Loans to the relevant
Borrower or the Administrative Agent.
(c) Pursuant to an Assignment and Assumption arising by operation of
Section 3.09(b), (i) the assignee Lender shall acquire all or a portion, as the
case may be, of the assigning Lender's Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans, (ii) all obligations of
each Borrower owing to the assigning Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such
assigning Lender concurrently with the execution of such Assignment and
Assumption and (iii) upon such payment and, if so requested by the assignee
Lender, delivery to the assignee Lender of the appropriate Note or Notes
executed by each relevant Borrower, the assignee Lender shall become a Lender
hereunder and the assigning Lender shall cease to be a Lender hereunder with
respect to such assigned Loans, Commitments and participations, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such assigning Lender.
(d) Notwithstanding anything to the contrary, (i) any Lender that acts as
L/C Issuer may not be replaced by operation of this Section 3.09 at any time
that it has any Letter of Credit outstanding unless arrangements reasonably
satisfactory to such L/C Issuer (including the furnishing of a back-up standby
letter of credit in form and substance, and issued by an issuer reasonably
satisfactory to such L/C Issuer or the depositing of cash collateral into a Cash
Collateral Account in amounts and pursuant to arrangements reasonably
satisfactory to such L/C Issuer) have been made with respect to such outstanding
Letter of Credit and (ii) any Lender that acts as Administrative Agent may not
be replaced by operation of this Section 3.09 except in accordance with the
terms of Section 9.09.
(e) If (i) any Borrower or the Administrative Agent requests the Lenders
to consent to a departure or waiver of any provisions of the Loan Documents or
to agree to any amendment thereto, (ii) the consent, waiver or amendment in
question requires the agreement of all affected Lenders in accordance with the
terms of Section 11.01 or all the Lenders with respect to a certain class of the
Loans and (iii) one or more of the Lenders have agreed to such consent, waiver
or amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a "NON-CONSENTING LENDER."
Section 3.10. Survival. All of the Borrowers' obligations under this
Article 3 shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions of Initial Credit Extension. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
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(a) The Administrative Agent's receipt of the following, each of which
shall be originals, or electronic copies or facsimiles followed promptly by
originals (unless otherwise specified), each properly executed by a Responsible
Officer of the signing Loan Party (as applicable), each in form and substance
reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the Company in favor of each Lender
requesting a Note;
(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 reasonably 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;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized
or formed, validly existing, in good standing and qualified to engage in
business in its jurisdiction of organization;
(v) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel to
the Loan Parties, addressed to each Agent and each Lender and in form and
substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Company
certifying as to the satisfaction of the conditions set forth in Section
4.02(a) (other than with respect to the representation and warranty in
Section 5.05(b)) and Section 4.02(b);
(vii) a Committed Loan Notice or Letter of Credit Application, as
applicable, relating to the initial Credit Extension.
(b) The Company is in compliance with the Fee Letters and all fees and
expenses required to be paid on or before the Closing Date shall have been paid
in full in cash.
(c) All governmental and third party consents and approvals necessary in
connection with the Loan Documents and the transactions contemplated thereby
shall have been obtained.
(d) The Administrative Agent shall have received evidence reasonably
satisfactory to it that (i) the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated, all Liens securing
obligations under the Existing Credit Agreement have been or concurrently with
the Closing Date are being released and all amounts outstanding thereunder have
been (or will be with Cash on Hand and the proceeds of the Loans on the Closing
Date) paid in full and (ii) the Wachovia Credit Agreement has been or
concurrently with the Closing Date is being terminated and all amounts
outstanding thereunder have been (or will be, at the
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option of the Company, with Cash on Hand and the proceeds of the Loans on the
Closing Date) paid in full.
(e) There has been no change, occurrence or development since December 31,
2005 that either individually or in the aggregate, would constitute or would
reasonably be expected to (1) have a material adverse effect on the business,
assets, liabilities, results of operations or financial position of the
Restricted Companies, taken as a whole, (2) materially and adversely affect the
ability of any Loan Party to perform its obligations under the Loan Documents or
(3) materially and adversely affect the rights and remedies of the Lenders under
the Loan Documents.
Section 4.02. Conditions to All Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurocurrency Rate Committed Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of each Loan Party contained in
Article 5 or any other Loan Document shall be true and correct in all material
respects on and as of the date of such Credit Extension, except (i) to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects as
of such earlier date and (ii) that for purposes of this Section 4.02(a), the
representations and warranties contained in Section 5.05(a) shall be deemed to
refer to the most recent financial statements furnished pursuant to Section
6.01(a) and Section 6.01(b) and, in the case of the financial statements
furnished pursuant to Section 6.01(b), the representations contained in Section
5.05(a), as modified by this clause (ii), shall be qualified by the statement
that such financial statements are subject to the absence of footnotes and
year-end audit adjustments.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
applicable Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.
(d) If the applicable Borrower is a Designated Borrower, then the
conditions of Section 2.15 to the designation of such Borrower as a Designated
Borrower shall have been met to the reasonable satisfaction of the
Administrative Agent.
(e) In the case of a Credit Extension to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the Administrative Agent,
the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to
be denominated in an Alternative Currency) would make it impracticable for such
Credit Extension to be denominated in the relevant Alternative Currency.
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Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurocurrency Rate Committed Loans) submitted by the Company
shall be deemed to be a representation and warranty that the conditions
specified in Section 4.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Company and each other Borrower represents and warrants to the Agents
and the Lenders that:
Section 5.01. Existence, Qualification and Power; Compliance with Laws.
Each Restricted Company (a) is a Person, validly existing and in good standing
under the Laws of the jurisdiction of its organization, (b) has all requisite
power and authority to (i) own or lease its assets and carry on its business and
(ii) execute, deliver and perform its obligations under the Loan Documents to
which it is a party, (c) is duly qualified and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, (d) is in compliance
with all Laws (including, without limitation, Environmental Laws), orders, writs
and injunctions, and (e) has all requisite governmental licenses,
authorizations, consents and approvals to operate its business as currently
conducted; except in each case referred to in clauses (a) (other than with
respect to the Borrowers), (c), (d) or (e), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
Section 5.02. Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is a
party are (a) within such Loan Party's corporate or other powers, (b) have been
duly authorized by all necessary corporate, shareholder or other organizational
action, and (c) do not and will not (i) contravene the terms of any of such
Person's Organization Documents, (ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under (other than as permitted by
Section 7.01), or require any payment to be made under, (A) any documentation
governing any Permitted Subordinated Indebtedness, (B) any other Contractual
Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (C) any order,
injunction, writ or decree, of or with any Governmental Authority or any
arbitral award to which such Person or its property is subject, or (iii)
violate, in any material respect, any Law; except with respect to any conflict,
breach or contravention or payment (but not creation of Liens) referred to in
clause (ii) to the extent that such conflict, breach, contravention or payment
could not reasonably be expected to have a Material Adverse Effect.
Section 5.03. Governmental Authorization; Other Consents. No material
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required to be made or obtained by any Loan Party in connection with (a) the
execution, delivery or performance by any Loan Party of this Agreement or any
other Loan Document or (b) the exercise by the Administrative Agent or any
Lender of its rights under the Loan Documents, except for (i) the approvals,
consents,
79
exemptions, authorizations, actions, notices and filings which have been duly
obtained, taken, given or made and are in full force and (ii) those approvals,
consents, exemptions, authorizations, actions, notices or filings, the failure
of which to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
Section 5.04. Binding Effect. This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party thereto.
This Agreement and each other Loan Document constitutes a legal, valid and
binding obligation of each Loan Party that is a party thereto, enforceable
against such Loan Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy insolvency, reorganization,
receivership, moratorium or other Laws affecting creditors' rights generally and
by general principles of equity.
Section 5.05. Financial Statements; No Material Adverse Effect. (a) The
(i) audited consolidated balance sheet of the Company and its Subsidiaries for
the fiscal year ended December 31, 2005, and the related consolidated statements
of income, shareholders' equity and cash flows for such fiscal year of the
Company and its Subsidiaries, including the notes thereto and (ii) unaudited
consolidated balance sheet of the Company and its Subsidiaries dated September
30, 2006, and the related consolidated statements of income, shareholders'
equity and cash flows for the three fiscal quarter period ended on such date
(collectively, the "HISTORICAL FINANCIAL STATEMENTS") fairly present in all
material respects the financial condition of the Company and its Subsidiaries as
of the date thereof and their results of operations and cash flows for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein (and,
with respect to unaudited financial statements, the absence of footnotes and
subject to such adjustments as would be made in connection with the audit of
financial statements for the relevant period).
(b) Since December 31, 2005, there has been no change, effect, event or,
occurrence that has had or would reasonably be expected to have a Material
Adverse Effect.
(c) The forecasts prepared by management of the Company of consolidated
balance sheets, income statements and cash flow statements for each year
commencing with the fiscal year ending on December 31, 2006 through the fiscal
year ending on December 31, 2011 (the "CLOSING DATE FORECASTS"), copies of which
have been furnished to the Administrative Agent and the Lenders prior to the
Closing Date, have been prepared in good faith based upon assumptions believed
in good faith by the Company to be reasonable in light of conditions existing at
the time of preparation, it being understood that (i) such forecasts, as to
future events, are not to be viewed as facts, that actual results during the
period or periods covered by any such forecasts may differ significantly from
the forecasted results and that such differences may be material and that such
forecasts are not a guarantee of financial performance and (ii) no
representation is made with respect to information of a general economic or
general industry nature.
Section 5.06. Litigation. Except as disclosed in Schedule 5.06, there are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Borrowers, threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority or Regulatory Supervising Organization, by or
against any Borrower or any of its Restricted Subsidiaries or
80
against any of their properties or revenues that either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 5.07. Ownership of Property; Liens. Each Loan Party and each of
its Restricted Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, or easements or other limited property
interests in, all real property necessary in the ordinary conduct of its
business, free and clear of all Liens except for minor defects in title that do
not materially interfere with its ability to conduct its business or to utilize
such assets for their intended purposes and Liens permitted by Section 7.01 and
except where the failure to have such title or the existence of such Lien could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 5.08. [Intentionally Omitted].
Section 5.09. Taxes. The Company and its Subsidiaries have filed all
Federal and material state and other tax returns and reports required to be
filed, and have paid all Federal and material state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those (a)
which are not overdue by more than 30 days, (b) which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP or (c) with respect
to which the failure to make such filing or payment could not reasonably be
expected to have a Material Adverse Effect.
Section 5.10. ERISA Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA and the Code except to
the extent that non-compliance could not reasonably be expected to have a
Material Adverse Effect. In the preceding five years, each Loan Party and each
ERISA Affiliate have made all required contributions to each Pension Plan
subject to Section 412 of the Code, and in the preceding five years, no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan,
except to the extent a failure to make such contributions or application, as the
case may be, could not reasonably be expected to have a Material Adverse Effect.
(b) There are no pending or, to the knowledge of any Borrower, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that would reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or would
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has an "accumulated funding deficiency" (as defined in
Section 412 of the Code), whether or not waived, and no application for a waiver
of the minimum funding standard has been filed with respect to any Pension Plan;
(iii) none of the Borrowers nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums not yet due or premiums due and not yet
delinquent under Section 4007 of ERISA); (iv) none of the Borrowers nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of
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notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
none of the Borrowers nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to
each of the foregoing clauses of this Section 5.10(c), as could not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect.
Section 5.11. Subsidiaries; Equity Interests. As of the Closing Date, (a)
the Equity Interests of each Restricted Subsidiary that are owned directly or
indirectly by the Company are owned free and clear of all Liens except for any
Lien permitted under Section 7.01 and (b) Schedule 5.11 (i) sets forth the name
and jurisdiction of organization of each Subsidiary (other than Subsidiaries
that in the aggregate represent less than the greater of (x) 5% of the Total
Consolidated Assets and (y) 5% of the Consolidated EBITDA of the Company and its
Consolidated Subsidiaries) and (ii) sets forth the ownership interest of the
Company and any other Subsidiary in each such Subsidiary, including the
percentage of such ownership.
Section 5.12. Margin Regulations; Investment Company Act. (a) No proceeds
of any Borrowings or drawings under any Letter of Credit will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock in violation of Regulation U issued
by the FRB.
(b) None of the Borrowers, any Person Controlling any of the foregoing,
nor any Restricted Subsidiary is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
Section 5.13. Disclosure. No report, financial statement, certificate or
other written information furnished by or on behalf of any Loan Party to any
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or any other Loan
Document (as modified or supplemented by other information so furnished) when
taken as a whole (and considered together with all information publicly
disclosed by the Consolidated Companies) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under and at the time which they were
made, not materially misleading; provided that, with respect to financial
estimates, projected or forecasted financial information and other
forward-looking information, the Company and each other Borrower represent and
warrant only that such information was prepared in good faith based upon
assumptions believed by the Company to be reasonable in light of conditions
existing at the time of preparation; it being understood that (A) such
projections and forecasts, as to future events, are not to be viewed as facts,
that actual results during the period or periods covered by any such projections
or forecasts may differ significantly from the projected or forecasted results
and that such differences may be material and that such projections and
forecasts are not a guarantee of financial performance and (B) no representation
is made with respect to information of a general economic or general industry
nature.
Section 5.14. Solvency. On the Closing Date after giving effect to the
Transaction, the Loan Parties, on a consolidated basis, are Solvent.
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ARTICLE 6
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise
provided for in full in a manner reasonably satisfactory to the L/C Issuer, the
Company shall, and shall (except in the case of the covenants set forth in
Section 6.01, Section 6.02, Section 6.03 and Section 6.14) cause each Restricted
Subsidiary to:
Section 6.01. Financial Statements. Deliver to the Administrative Agent
for further distribution to each Lender:
(a) as soon as available, but in any event within 105 days after the end
of each fiscal year of the Company beginning with the fiscal year ending on
December 31, 2006, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, and audited and accompanied by a report and opinion of KPMG LLP or any
other independent certified public accountant of nationally recognized standing,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards 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; provided that if the independent auditor provides an attestation and
a report with respect to management's report on internal control over financial
reporting and its own evaluation of internal control over financial reporting,
then such report may include a qualification or limitation due to the exclusion
of any acquired business from such report to the extent such exclusion is
permitted under rules or regulations promulgated by the SEC or the Public
Company Accounting Oversight Board;
(b) as soon as available, but in any event within 60 days after the end of
each of the first three fiscal quarters of each fiscal year of the Company
beginning with the fiscal quarter ending on March 31, 2007, a consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the portion
of the fiscal year then ended, setting forth, in each case, in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Company as fairly presenting in
all material respects the financial condition, results of operations,
shareholders' equity and cash flows of the Company and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;
(c) as soon as available, but in any event no later than 105 days after
the end of each fiscal year, forecasts prepared by management of the Company, in
form reasonably satisfactory to the Administrative Agent of consolidated balance
sheets, income statements and cash flow statements of the Company and its
Subsidiaries for the fiscal year following such fiscal year then ended, which
shall be prepared in good faith upon reasonable assumptions at the time of
83
preparation and which shall state therein all the material assumptions on the
basis of which such forecasts were prepared), it being understood that actual
results may vary from such forecasts and that such variations may be material;
provided that compliance with this Section 6.01(c) shall not be required so long
as the Company achieves and maintains at least two of the following three
ratings: (i) a corporate credit rating of BBB- or higher from S&P, (ii) a
corporate family rating of Baa3 or higher from ▇▇▇▇▇'▇ and (iii) an issuer
default rating of BBB- or higher from Fitch Ratings; and
(d) if there are any Unrestricted Subsidiaries as of the last day of any
fiscal quarter, simultaneously with the delivery of each set of consolidated
financial statements referred to in Section 6.01(a) and 6.01(b) above, the
related consolidating financial statements reflecting the adjustments necessary
to eliminate the accounts of Unrestricted Subsidiaries from such consolidated
financial statements.
Section 6.02. Certificates; Other Information. Deliver to the
Administrative Agent for further distribution to each Lender:
(a) no later than five days after the delivery of each set of consolidated
financial statements referred to in Section 6.01(a), a certificate of the
Company's independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Event of Default under Section 7.10 or, if any
such Event of Default shall exist, stating the nature and status of such event;
(b) no later than five days after the delivery of each set of consolidated
financial statements referred to in Section 6.01(a) and 6.01(b), a duly
completed Compliance Certificate signed by a Responsible Officer of the Company;
(c) promptly after the same are publicly available, copies of each annual
report, proxy or financial statement sent to the stockholders of the Company,
and copies of all annual, regular, periodic and special reports and registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) which the Company files, copies of any report,
filing or communication with the SEC under Section 13 or 15(d) of the 1934 Act,
or with any Governmental Authority that may be substituted therefor, or with any
national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any notices of
default or acceleration received by any Loan Party or notices of default or
acceleration furnished by any Loan Party to any holder of debt securities of any
of the Restricted Companies pursuant to the terms of any documentation governing
any Permitted Subordinated Indebtedness in a principal amount greater than the
Threshold Amount and not otherwise required to be furnished to the Lenders;
(e) promptly after the receipt thereof by a Specified Responsible Officer
of the Company, copies of each notice or other correspondence received from any
Governmental Authority concerning any material investigation or other material
inquiry regarding any material
84
violation of applicable Law by any Restricted Company which would reasonably be
expected to have a Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to
Section 6.02(b), a description of each event, condition or circumstance during
the last fiscal quarter covered by such Compliance Certificate requiring a
mandatory prepayment under Section 2.06(b); and
(g) promptly after any request therefor, such additional information
regarding the business, legal, financial or corporate affairs of any Restricted
Company, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender through the Administrative Agent may from
time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(c) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and, if so delivered, shall
be deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Company's website on the Internet
at the website address listed on Schedule 11.02; or (ii) on which such documents
are posted on the Company's behalf on IntraLinks or other relevant website, to
which each Lender and the Administrative Agent are granted access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that the Company shall notify (which may be by facsimile or
electronic mail or by an automated electronic alert of a posting) the
Administrative Agent of the posting of any such documents which notice may be
included in the certificate delivered pursuant to Section 6.02(b). Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to maintain copies of the documents referred to above, and in any event shall
have no responsibility to monitor compliance by the Company with any such
request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents. The Borrowers hereby
acknowledge that (a) the Administrative Agent and/or the Arrangers will make
available to the Lenders and the L/C Issuer materials and/or information
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 Borrowers or their securities) (each,
a "PUBLIC LENDER"). The Borrowers hereby agree 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," the Borrowers shall be deemed to have authorized
the Administrative Agent, the Arrangers, 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
Borrowers or their 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 Arrangers shall 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."
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Section 6.03. Notices. Promptly notify the Administrative Agent after a
Specified Responsible Officer obtains knowledge of:
(a) the occurrence of any Default; and
(b) any matter that has resulted or would reasonably be expected to result
in a Material Adverse Effect, including any matter arising out of or resulting
from (i) breach or non-performance of, or any default under, a Contractual
Obligation of any Loan Party or any Subsidiary, (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party or any Restricted
Subsidiary and any Governmental Authority, (iii) the commencement of, or any
material adverse development in, any litigation, investigation or proceeding
affecting any Loan Party or any Subsidiary, or (iv) the occurrence of any ERISA
Event.
Each notice pursuant to this Section 6.03 shall be accompanied by a
written statement of a Responsible Officer of the Company (x) that such notice
is being delivered pursuant to Section 6.03(a) or (b) (as applicable) and (y)
setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity to the
extent known any and all provisions of this Agreement and any other Loan
Document in respect of which such Default exists.
Section 6.04. Payment of Obligations. Pay, discharge or otherwise satisfy
as the same shall become due and payable, all of its obligations and liabilities
except, in each case, to the extent the failure to pay or discharge the same
could not reasonably be expected to have a Material Adverse Effect or such
obligations or liabilities are being contested in good faith by appropriate
proceedings.
Section 6.05. Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.05 (and, in the case of any Restricted Subsidiary, other than a Designated
Borrower, to the extent the failure to do so, could not reasonably be expected
to have a Material Adverse Effect) and (b) take all reasonable action to
maintain all rights, privileges (including its good standing), permits, licenses
and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
Section 6.06. Maintenance of Properties. Except if the failure to do so
could not reasonably be expected to have a Material Adverse Effect, (a)
maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order, ordinary wear
and tear excepted and casualty and condemnation excepted, and (b) make all
necessary renewals, replacements, modifications, improvements, upgrades,
extensions and additions to material properties and equipment in accordance with
prudent industry practice.
Section 6.07. Maintenance of Insurance. Maintain with financially sound
and reputable insurance companies, insurance of such types and in such amounts
(after giving effect to any self-insurance) reasonable and customary for
similarly situated Persons engaged in the same or
86
similar businesses as the Borrowers and the Restricted Subsidiaries) as are
customarily carried under similar circumstances by such other Persons except, in
the case of Foreign Subsidiaries, to the extent that the failure to maintain
such insurance with respect to one or more Foreign Subsidiaries could not
reasonably be expected to result in a Material Adverse Effect.
Section 6.08. Compliance with Laws. Comply in all material respects with
the requirements of all Laws (including, without limitation, Environmental Laws)
and all orders, writs, injunctions, and decrees applicable to it or to its
business or property, except if the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect or the necessity of
compliance therewith is being contested in good faith by appropriate
proceedings.
Section 6.09. Books and Records. Maintain proper books of record and
account, in a manner to allow financial statements to be prepared in conformity
with GAAP consistently applied shall be made of all material financial
transactions and matters involving the assets and business of such Borrower or
such Restricted Subsidiary, as the case may be.
Section 6.10. Inspection Rights. With respect to any Loan Party, permit
representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, all at the expense of the Borrowers and at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrowers; provided
that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise rights under this Section 6.10 and the Administrative Agent shall not
exercise such rights more often than once during any calendar year absent the
existence of an Event of Default and such inspections shall be conducted at the
sole expense of the Administrative Agent without charge to the Borrowers;
provided further that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrowers at any
time during normal business hours and upon reasonable advance notice. The
Administrative Agent and the Lenders shall give the Company the opportunity to
participate in any discussions with the Company's accountants.
Section 6.11. Use of Proceeds. Use the proceeds of the Credit Extensions
(i) to repay existing Indebtedness of the Consolidated Companies, (ii) to pay
fees and expenses incurred in connection with the Transaction and (iii) to
provide ongoing working capital and for other general corporate purposes of the
Consolidated Companies (including Permitted Acquisitions).
Section 6.12. Covenant to Guarantee Obligations. (a) Cause the following
Restricted Subsidiaries to guarantee the Obligations (each a "SUBSIDIARY
GUARANTOR"): such Restricted Subsidiaries as shall constitute (x) at least 95%
of the Consolidated EBITDA of the Company and its Domestic Subsidiaries
(excluding, for the purposes of such calculation, all Unrestricted Subsidiaries,
but including any Subsidiaries that were, at one time, designated as
Unrestricted Subsidiaries, but have been redesignated as Restricted Subsidiaries
pursuant to Section 6.14) for the four fiscal quarters most recently ended for
which financial statements have been delivered pursuant to Section 6.01 and (y)
at least 95% of the Total Assets of the Company and its
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Domestic Subsidiaries (excluding, for the purposes of such calculation, all
Unrestricted Subsidiaries, but including any Subsidiaries that were, at one
time, designated as Unrestricted Subsidiaries, but have been redesignated as
Restricted Subsidiaries pursuant to Section 6.14) as of the last day of the
fiscal quarter most recently ended for which financial statements have been
delivered pursuant to Section 6.01. Notwithstanding the foregoing, (i) any
Restricted Subsidiary that is a guarantor of any Permitted Subordinated
Indebtedness shall also be required to be a Subsidiary Guarantor, (ii) no
Subsidiary shall be required to be a Subsidiary Guarantor if such Subsidiary is
a Foreign Subsidiary or a Domestic Subsidiary of a Foreign Subsidiary and (iii)
no Restricted Subsidiary that is prohibited from guaranteeing the Obligations
pursuant to documents governing any Indebtedness assumed in connection with a
Permitted Acquisition and not incurred in contemplation thereof shall be
required to become a Subsidiary Guarantor for so long as such Indebtedness
remains outstanding.
(b) At the end of each fiscal quarter of the Company, the Company shall
determine whether any Restricted Companies that are not currently Subsidiary
Guarantors shall be required, pursuant to the provisions of Section 6.12(a) to
become Subsidiary Guarantors and, within 30 days after the end of such fiscal
quarter (or such longer period as the Administrative Agent may agree in its
reasonable discretion), will at the Company's expense cause any new Subsidiary
Guarantors to duly execute and deliver to the Administrative Agent a guaranty
substantially in the form of Exhibit G (either directly or via a guaranty
supplement) or such other form of guaranty or guaranty supplement to guarantee
the Obligations in form and substance reasonably satisfactory to the
Administrative Agent and the Company, it being understood and agreed that each
Subsidiary that is required to be a Subsidiary Guarantor on the Closing Date
shall duly execute and deliver to the Administrative Agent a Subsidiary Guaranty
on the Closing Date; provided that in connection with any acquisition of any
Restricted Company, if any Subsidiary that is not already a Subsidiary Guarantor
shall be required, pursuant to the provisions of Section 6.12(a) to become a
Subsidiary Guarantor, the Company shall, in each case at the Company's expense
and within 30 days of being so required, cause such Subsidiary to duly execute
and deliver to the Administrative Agent a Subsidiary Guaranty. To the extent
that the Company shall determine at any time that certain Restricted
Subsidiaries that are not required to be Subsidiary Guarantors pursuant to the
provisions of Section 6.12(a) above are parties to a Subsidiary Guaranty, the
Company shall be entitled to give notice to that effect to the Administrative
Agent whereupon such Restricted Subsidiaries shall no longer be deemed to be
Subsidiary Guarantors and the Administrative Agent shall promptly release each
such Restricted Subsidiary from its Subsidiary Guaranty.
Section 6.13. [Intentionally Omitted].
Section 6.14. Designation of Subsidiaries. The Company may at any time
designate any Restricted Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) other than
in the case of the designation of a Joint Venture in existence on the Closing
Date that thereafter becomes a Subsidiary (an "EXCLUDED UNRESTRICTED
SUBSIDIARY"), immediately before and after such designation, no Default shall
have occurred and be continuing, (b) other than in the case of the designation
of a Excluded Unrestricted Subsidiary, immediately after giving effect to such
designation, the Company and its Consolidated Subsidiaries shall be in
compliance, on a Pro Forma Basis, with the covenants set forth in Section 7.10
(and, as a condition precedent to the effectiveness of any such
88
designation, the Company shall deliver to the Administrative Agent a certificate
setting forth in reasonable detail the calculations demonstrating such
compliance), (c) no Borrower may be designated as an Unrestricted Subsidiary,
(d) no designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
other than an Excluded Unrestricted Subsidiary, shall be effective if,
immediately after such designation, (i) the Consolidated EBITDA of the
Unrestricted Subsidiaries would exceed 10% of the Consolidated EBITDA of the
Consolidated Companies for the four fiscal quarter period then most recently
ended or (ii) the Total Assets of all Unrestricted Subsidiaries would exceed 5%
of the Total Consolidated Assets, in each case determined without regard to any
Excluded Unrestricted Subsidiary at any time after such Person becomes a
Subsidiary, and (e) no Subsidiary may be designated as an Unrestricted
Subsidiary if it is a "Restricted Subsidiary" for the purpose of any Permitted
Subordinated Indebtedness. The designation of any Subsidiary as an Unrestricted
Subsidiary shall constitute an Investment by the applicable Restricted Companies
therein at the date of designation in an amount equal to the net book value (or,
in the case of any guarantee or similar Investment, the amount) of the
Restricted Companies' Investments therein. If any Person becomes a Restricted
Subsidiary on any date after the Closing Date (including by redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary), the Indebtedness of such
Person outstanding on such date will be deemed to have been incurred by such
Person on such date for purposes of Section 7.03, but will not be considered the
sale or issuance of Equity Interests for purposes of Section 7.05.
ARTICLE 7
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise
provided for in full in a manner reasonably satisfactory to the L/C Issuer, the
Company shall not, nor shall it permit any Restricted Subsidiary to, directly or
indirectly:
Section 7.01. Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the Closing Date and listed on Schedule 7.01 and any
modifications, replacements, renewals or extensions thereof; provided that (i)
the Lien does not extend to any additional property other than (A)
after-acquired property that is affixed or incorporated into the property
covered by such Lien or financed by Indebtedness permitted under Section 7.03,
and (B) proceeds and products thereof and (ii) the modification, replacement,
renewal, extension or refinancing of the obligations secured or benefited by
such Liens (if such obligations constitute Indebtedness) is permitted by Section
7.03;
(c) Liens for taxes, assessments or governmental charges which are not
overdue for a period of more than 30 days, or, if more than 30 days overdue, (i)
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP or (ii)
89
with respect to which the failure to make payment could not reasonably be
expected to have a Material Adverse Effect;
(d) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen, repairmen, construction contractors or other like Liens arising in
the ordinary course of business which secure amounts not overdue for a period of
more than 30 days or, if more than 30 days overdue, (i) no action has been taken
to enforce such Lien, (ii) such Lien is being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP or (iii) with respect to which the failure to make payment as to all such
amounts, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect;
(e) (i) Liens incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, (ii) Liens incurred in the ordinary course of business securing
insurance premiums or reimbursement obligations under insurance policies or
(iii) obligations in respect of letters of credit or bank guarantees that have
been posted by a Restricted Company to support the payment of the items set
forth in clauses (i) and (ii) of this Section 7.01(e);
(f) (i) deposits to secure the performance of bids, trade contracts,
governmental contracts and leases (other than Indebtedness for borrowed money),
statutory obligations, surety, stay, customs and appeal bonds, performance
bonds, performance and completion guarantees and other obligations of a like
nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business and (ii) obligations in respect of
letters of credit or bank guarantees that have been posted by a Restricted
Company to support the payment of items set forth in clause (i) of this Section
7.01(f);
(g) easements, rights-of-way, restrictions, encroachments, protrusions and
other similar encumbrances and minor title defects affecting real property
which, in the aggregate, do not in any case materially and adversely interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(i) Liens arising in connection with the Cash Management Practices,
including Liens securing borrowings from financial institutions and their
Affiliates permitted under Section 7.03(m) to the extent specified therein;
(j) (i) leases, licenses, subleases or sublicenses granted to other
Persons in the ordinary course of business which do not (A) interfere in any
material respect with the business of the Company or any of its material
Restricted Subsidiaries or (B) secure any Indebtedness (other than any
obligation that is Indebtedness solely as a result of the operation of clause
(e) of the definition thereof) and (ii) the rights reserved or vested in any
Person by the terms of any lease, license, franchise, grant or permit held by
any Restricted Company or by a statutory provision to terminate any such lease,
license, franchise, grant or permit or to require periodic payments as a
condition to the continuance thereof;
90
(k) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods in the ordinary course of business;
(l) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection, (ii) attaching to
commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business, (iii) in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) and which are
within the general parameters customary in the banking industry and (iv) of
financial institutions funding the Vault Cash Operations in the cash provided by
such institutions for such Vault Cash Operations;
(m) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the
seller of any property to be acquired in an Investment permitted pursuant to
Section 7.02(h) and (l) to be applied against the purchase price for such
Investment, and (B) consisting of an agreement to Dispose of any property in a
Disposition permitted under Section 7.05 and (ii) on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits
made by any Restricted Company in connection with any letter of intent or
purchase agreement permitted hereunder;
(n) Liens on property of any Foreign Subsidiary securing Indebtedness of
such Foreign Subsidiary to the extent permitted under Section 7.03;
(o) Liens in favor of any Restricted Company securing Indebtedness
permitted under Section 7.03(e) or other obligations other than Indebtedness
owed by a Restricted Company to another Restricted Company;
(p) Liens existing on property at the time of its acquisition or existing
on the property of any Person at the time such Person becomes a Restricted
Subsidiary, in each case after the date hereof and any modifications,
replacements, renewals or extensions thereof; provided that (i) such Lien was
not created in contemplation of such acquisition or such Person becoming a
Restricted Subsidiary, (ii) in the case of Liens securing purchase money
Indebtedness or Capitalized Leases, such Lien does not extend to or cover any
other assets or property (other than the proceeds or products thereof and
after-acquired property subjected to a Lien pursuant to terms existing at the
time of such acquisition, it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have
applied but for such acquisition); provided that individual financings otherwise
permitted to be secured hereunder provided by one Person (or its affiliates) may
be cross collateralized to other such financings provided by such Person (or its
affiliates), (iii) in the case of Liens securing Indebtedness other than
purchase money Indebtedness or Capitalized Leases, such Liens do not extend to
the property of any Person other than the Person acquired or formed to make such
acquisition and the subsidiaries of such Person and (iv) the Indebtedness
secured thereby (or, as applicable, any modifications, replacements, renewals or
extensions thereof) is permitted under Section 7.03;
(q) Liens arising from precautionary UCC financing statement filings (or
similar filings under applicable Law) regarding leases entered into by the
Company or any of its
91
Restricted Subsidiaries in the ordinary course of business (and Liens consisting
of the interests or title of the respective lessors thereunder);
(r) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for sale of goods entered into by any Restricted Company in
the ordinary course of business not prohibited by this Agreement;
(s) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Indebtedness (other than Indebtedness described in clause (e) of
the definition thereof), (ii) relating to pooled deposit or sweep accounts of
any Restricted Company to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of such Restricted
Company and (iii) relating to purchase orders and other similar agreements
entered into in the ordinary course of business;
(t) Liens securing obligations permitted under Section 7.03(u) to the
extent specified therein;
(u) Liens on the assets of a Securitization Vehicle securing Indebtedness
under any Securitization Financing permitted under Section 7.03(v);
(v) Liens securing the Specified Non-Recourse Indebtedness permitted under
Section 7.03(f) to the extent specified therein; and
(w) other Liens securing Indebtedness or other obligations outstanding in
an aggregate principal amount not to exceed the greater of (i) 5% of Total
Consolidated Assets and (ii) $150,000,000.
Section 7.02. Investments. Make or hold any Investments, except:
(a) Investments by a Restricted Company in assets that were Cash
Equivalents when such Investment was made, and the holding of cash at any time
by a Restricted Company;
(b) loans or advances to directors, officers, members of management,
employees and consultants of a Restricted Company in an aggregate amount not to
exceed $20,000,000 at any time outstanding, for business related travel,
entertainment, relocation and analogous ordinary business purposes or in
connection with such Person's purchase of Equity Interests of the Company;
(c) Investments (i) by any Loan Party in any other Loan Party, (ii) by the
Company or any of its Domestic Subsidiaries in the Company or any of its
Domestic Subsidiaries, (iii) by any Restricted Subsidiary that is not a Loan
Party in any Restricted Company and (iv) by any Loan Party in any Restricted
Subsidiary that is not a Loan Party in an aggregate amount for all such
Investments under this clause (iv) not to exceed, at the time such Investment is
made and after giving effect to such Investment, the sum of (A) $100,000,000,
plus (B) the amount (if positive) by which 5% of the Total Consolidated Assets
exceeds the aggregate amount of all Investments in Unrestricted Subsidiaries
made or deemed to be made pursuant to Section 7.02(n), plus (C) the
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aggregate amount of any cash repayment of or return on such Investments
theretofore received by the Loan Parties;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors and other
credits to suppliers in the ordinary course of business;
(e) Investments consisting of Liens, Indebtedness, Dispositions and
Restricted Payments permitted under Section 7.01, 7.03, 7.05 and 7.06,
respectively;
(f) Investments existing or contemplated on the Closing Date (including
those in the Brazilian Joint Venture) and set forth on Schedule 7.02 and any
modification, replacement, renewal or extension thereof; provided that the
amount of the original Investment is not increased except by the terms of such
Investment or as otherwise permitted by this Section 7.02;
(g) promissory notes and other noncash consideration received in
connection with Dispositions permitted by Section 7.05;
(h) the purchase or other acquisition of all or substantially all of the
property and assets or business of, any Person or of assets constituting a
business unit, a line of business or division of such Person, or of more than
50% of the Equity Interests in a Person that, upon the consummation thereof,
will be owned directly by the Company or one or more of its wholly owned
Subsidiaries (including as a result of a merger or consolidation); provided
that, with respect to each purchase or other acquisition made pursuant to this
Section 7.02(h) (each, a "PERMITTED ACQUISITION"):
(i) the Company and any such newly created or acquired Subsidiary
shall, or will within the times specified therein, have complied with the
requirements of Section 6.12;
(ii) any Indebtedness incurred in connection with such acquisition
by the Company or any Restricted Subsidiary shall be permitted by Section
7.03;
(iii) (A) immediately before and immediately after giving Pro Forma
Effect to any such purchase or other acquisition, no Event of Default
shall have occurred and be continuing and (B) immediately after giving
effect to such purchase or other acquisition, the Borrowers shall be in
Pro Forma Compliance with all of the covenants set forth in Section 7.10,
in each case such compliance to be determined on the basis of the
financial information most recently delivered to the Administrative Agent
and the Lenders (either pursuant to Section 6.01(a) or (b) or in any
subsequent delivery of financial information by the Company to the
Administrative Agent prior to such purchase or other acquisition) as
though such purchase or other acquisition had been consummated as of the
first day of the fiscal period covered thereby and, with respect to each
such purchase or other acquisition having total consideration in excess of
$100,000,000, evidenced by a certificate from the chief financial officer
(or other equivalent officer) of the Company demonstrating such compliance
calculation in reasonable detail;
93
(iv) if the total consideration of such Permitted Acquisition
exceeds $100,000,000, the Company shall have delivered to the
Administrative Agent, on behalf of the Lenders, no later than five
Business Days after the date on which any such purchase or other
acquisition is consummated, a certificate of a Responsible Officer, in
form and substance reasonably satisfactory to the Administrative Agent,
certifying that all of the requirements set forth in this Section 7.02(h)
have been satisfied or will be satisfied on or prior to the consummation
of such purchase or other acquisition; and
(v) such purchase or other acquisition was approved by the board of
the directors (or other applicable governing body) of the Person being
acquired;
(i) Investments (including debt obligations and Equity Interests) received
in connection with the bankruptcy or reorganization of any Person and in
settlement of obligations of, or other disputes with, any Person arising in the
ordinary course of business and upon foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;
(j) Investments and transfers of funds among the Consolidated Companies
that are made in accordance with the Cash Management Practices;
(k) advances of payroll payments to employees in the ordinary course of
business;
(l) Guarantees by a Restricted Company of leases (other than Capital Lease
Obligations) entered into in the ordinary course of business;
(m) Investments in the ordinary course consisting of endorsements for
collection or deposit;
(n) Investments by Restricted Companies in Unrestricted Subsidiaries after
the Closing Date (it being understood and agreed that the book value of the
assets of an Unrestricted Subsidiary at the time of its designation as such
pursuant to Section 6.14 shall be deemed to be an Investment made in such
Unrestricted Subsidiary in an amount equal to such book value, but if such
Unrestricted Subsidiary is not wholly-owned by the Restricted Companies, only an
amount proportional to such Restricted Companies' ownership therein shall be
included in this calculation) in an aggregate amount for all such Investments
(less an amount equal to the book value of all Unrestricted Subsidiaries that,
after the Closing Date, are redesignated by the Company to be Restricted
Subsidiaries, calculated as of the date of such redesignation) not to exceed, at
the time such Investment is made and after giving effect to such Investment, the
sum of (i) an amount equal to 5% of the Total Consolidated Assets as of such
time (net of any Investment made pursuant to Section 7.02(c)(iv)(B)), plus (ii)
the aggregate amount of any cash repayment of or return on such Investments
theretofore received by Restricted Companies after the Closing Date;
(o) Investments consisting of Swap Contracts entered into in the ordinary
course of business and not for speculative purposes;
94
(p) Investments of funds held by the Exchange Companies for the benefit of
their customers in connection with their like-kind-exchange operations;
(q) any Investment in a Securitization Vehicle or any Investment by a
Securitization Vehicle in any other Person in connection with a Securitization
Financing permitted by Section 7.03(v), including Investments of funds held in
accounts permitted or required by the arrangements governing the Securitization
Financing or any related Indebtedness; provided that any Investment in a
Securitization Vehicle is in the form of a purchase money note, contribution of
additional Securitization Assets or equity investments; and
(r) so long as immediately after giving effect to any such Investment, no
Event of Default has occurred and is continuing, other Investments in an
aggregate amount for all such Investments (calculated using the actual amount of
such Investments as funded by the Restricted Companies) not to exceed at any
time the sum of (i) $250,000,000 and (ii) the aggregate amount of any cash
repayment of or return on such Investments theretofore received by the
Restricted Companies.
Section 7.03. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Permitted Subordinated Indebtedness;
(b) Indebtedness of the Loan Parties under the Loan Documents;
(c) Indebtedness outstanding on the Closing Date and listed on Schedule
7.03 and any Permitted Refinancing thereof;
(d) Guarantees by a Restricted Company in respect of Indebtedness of
another Restricted Company otherwise permitted hereunder; provided that (x) no
Guarantee by any Restricted Subsidiary of any Permitted Subordinated
Indebtedness (or any Permitted Refinancing thereof) shall be permitted unless
such Restricted Subsidiary shall have also provided a Guarantee of the
Obligations substantially on the terms set forth in the Subsidiary Guarantee in
accordance with Section 6.12 and (y) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination of such Indebtedness;
(e) Indebtedness of a Restricted Company that constitutes an Investment
permitted by Section 7.02;
(f) (i) Indebtedness incurred in the ordinary course of business by the
Exchange Companies in connection with "1031 exchange" transactions under Section
1031 of the Code (or regulations promulgated thereunder, including Revenue
Procedure 2000-37) that is limited in recourse to the properties (real or
personal) which are the subject of such "1031 exchange" transactions and (ii)
Indebtedness incurred in the ordinary course of business by the Leasing
Companies in connection with their leasing business that is limited in recourse
to the assets being financed by such Indebtedness (collectively, the "SPECIFIED
NON-RECOURSE INDEBTEDNESS");
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(g) Indebtedness of Foreign Subsidiaries of the Company;
(h) Indebtedness of a Restricted Company assumed in connection with any
Permitted Acquisition and not incurred in contemplation thereof, and any
Permitted Refinancing thereof;
(i) Indebtedness incurred by any Restricted Company representing deferred
compensation to employees of a Restricted Company incurred in the ordinary
course of business;
(j) Indebtedness consisting of promissory notes issued by any Restricted
Company to future, present or former directors, officers, members of management,
employees or consultants of the Company or any of its Subsidiaries or their
respective estates, heirs, family members, spouses or former spouses to finance
the purchase or redemption of Equity Interests of the Company permitted by
Section 7.06;
(k) Indebtedness incurred by a Restricted Company in a Permitted
Acquisition or Disposition under agreements providing for indemnification, the
adjustment of the purchase price or similar adjustments;
(l) Indebtedness consisting of obligations of any Restricted Company under
deferred compensation or other similar arrangements incurred by such Person in
connection with Permitted Acquisitions;
(m) Indebtedness (including intercompany Indebtedness among the
Consolidated Companies) in respect of the Cash Management Practices;
(n) obligations of the Consolidated Companies with respect to liabilities
arising from the Vault Cash Operations;
(o) Indebtedness consisting of (i) the financing of insurance premiums or
(ii) take-or-pay obligations of a Restricted Company contained in supply
arrangements, in each case, in the ordinary course of business;
(p) Indebtedness incurred by a Restricted Company constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to such similar
reimbursement-type obligations; provided that upon the drawing of such letters
of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;
(q) obligations in respect of bid, performance, stay, customs, appeal and
surety bonds and performance and completion guarantees provided by a Restricted
Company or obligations in respect of letters of credit related thereto, in each
case in the ordinary course of business or consistent with past practice;
(r) Guarantees by the Company of Indebtedness permitted under this Section
7.03;
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(s) Indebtedness in respect of Swap Contracts entered into in the ordinary
course of business and not for speculative purposes;
(t) Indebtedness in respect of any letter of credit or bankers' acceptance
supporting trade payables, warehouse receipts or similar facilities entered into
in the ordinary course of business;
(u) Indebtedness incurred in the ordinary course of business in connection
with relocation service transactions and secured by the properties which are the
subject of such transactions;
(v) Indebtedness incurred in connection with a receivables securitization
transaction involving the Restricted Companies and a Securitization Vehicle (a
"SECURITIZATION FINANCING"); provided that (i) such Indebtedness when incurred
shall not exceed 100% of the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition, (ii) such Indebtedness
is created and any Lien attaches to such property concurrently with or within
forty-five (45) days of the acquisition thereof, and (iii) such Lien does not at
any time encumber any property other than the property financed by such
Indebtedness;
(w) Indebtedness (i) of the type described in clause (e) of the definition
thereof subject to Liens permitted under Section 7.01 or (ii) secured by Liens
permitted under Sections 7.01(e)(ii), 7.01(e)(iii), 7.01(f), or 7.01(r);
(x) other Indebtedness of Restricted Companies in an aggregate principal
amount not to exceed the greater of (i) 10% of Total Consolidated Assets and
(ii) $300,000,000 at any time outstanding;
(y) all premiums (if any), interest (including post-petition interest),
fees, expenses, charges and additional or contingent interest on obligations
described in clauses (a) through (x) above;
provided that at the time of incurrence or assumption of any Specified Debt
described below, after giving effect to such Specified Debt, the aggregate
principal amount of all Specified Debt shall not exceed the greater of
$500,000,000 and 15% of Consolidated Shareholders' Equity. For purposes hereof,
"SPECIFIED DEBT" means, without duplication, (A) any Indebtedness of a Loan
Party that is secured by Liens permitted by clause (b), (n), (p) or (w) of
Section 7.01 and (B) any Indebtedness of a Restricted Subsidiary that is not a
Loan Party, in each case other than (1) Indebtedness permitted by clause (a),
(b), (d), (e), (f), (i) through (v), (w)(ii) or (y) of this Section 7.03 (the
"EXCLUDED DEBT") and (2) any Guarantee of Excluded Debt permitted by this
Section 7.03.
Section 7.04. [Intentionally Omitted].
Section 7.05. Dispositions. Make any Disposition of any of its property
to Persons that are not Restricted Companies except:
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(a) Dispositions of obsolete, used, surplus or worn out property, whether
now owned or hereafter acquired, in the ordinary course of business and
Dispositions of property no longer used or useful in the conduct of the business
of the Restricted Companies;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of such Disposition are promptly applied to the purchase
price of such replacement property;
(d) Dispositions pursuant to and in accordance with the Cash Management
Practices and in connection with the Vault Cash Operations;
(e) Dispositions permitted by Sections 7.02 and 7.06 and Liens permitted
by Section 7.01;
(f) Dispositions by any Restricted Company of property pursuant to
sale-leaseback transactions; provided that (i) the fair market value of all
property so Disposed of shall not exceed $50,00,000 from and after the Closing
Date and (ii) the purchase price for such property shall be paid to such
Restricted Company for not less than 75% cash consideration;
(g) Dispositions of cash and Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the collection
or compromise thereof;
(i) leases, subleases, licenses or sublicenses of property in the ordinary
course of business and which do not materially interfere with the business of
the Restricted Companies;
(j) transfers of property subject to Casualty Events upon receipt of the
Net Cash Proceeds of such Casualty Event;
(k) Dispositions in the ordinary course of business consisting of the
abandonment of intellectual property rights which, in the reasonable good faith
determination of the Company, are not material to the conduct of the business of
the Restricted Companies;
(l) Dispositions of Investments in Joint Ventures to the extent required
by, or made pursuant to buy/sell arrangements between the joint venture parties
set forth in, joint venture arrangements and similar binding arrangements (i) in
substantially the form as such arrangements are in effect on the Closing Date or
(ii) to the extent that the Net Cash Proceeds of such Disposition are either
reinvested or applied to prepay the Term Loans pursuant to Section 2.06(b);
(m) Dispositions of property to an Unrestricted Subsidiary; provided that
to the extent constituting an Investment, such Investment must be an Investment
permitted by Section 7.02.
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(n) Dispositions of real property and related assets in the ordinary
course of business in connection with relocation activities for directors,
officers, members of management, employees or consultants of the Restricted
Companies;
(o) Dispositions of tangible property in the ordinary course of business
as part of a like-kind exchange under Section 1031 of the Code;
(p) voluntary terminations of Swap Contracts;
(q) Dispositions of Unrestricted Subsidiaries;
(r) Dispositions of Securitization Assets (or a fractional undivided
interest therein) in a Securitization Financing permitted under Section 7.03(v);
and
(s) Dispositions of property not otherwise permitted under this Section
7.05 by a Restricted Company to Persons that are not Affiliates of the Loan
Parties; provided that (i) such Disposition is made in good faith on an arms'
length basis and (iii) the Net Cash Proceeds of such Disposition are either
reinvested or applied to prepay the Term Loans pursuant to Section 2.06(b).
Section 7.06. Restricted Payments. Declare or make, directly or
indirectly, any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted Payments to any other
Restricted Company (and, in the case of a Restricted Payment by a non-wholly
owned Restricted Subsidiary, to (i) any other Restricted Company and (ii) each
other owner of Equity Interests of such Restricted Subsidiary based on their
relative ownership interests);
(b) any Restricted Company may declare and make dividend payments or other
distributions payable solely in the Equity Interests (other than Disqualified
Equity Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing
or would result therefrom, the Company may make Restricted Payments;
(d) to the extent constituting Restricted Payments, the Company and its
Restricted Subsidiaries may enter into transactions expressly permitted by
Section 7.05 or 7.08;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants if such Equity Interests represent a portion of the exercise
price of such options or warrants; and
(f) the Company may make cash payments in lieu of issuing fractional
shares in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Equity Interests of the Company and its
Restricted Companies.
Section 7.07. [Intentionally Omitted].
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Section 7.08. Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the Company, whether or not in the ordinary
course of business, other than (a) transactions among the Restricted Companies,
(b) on fair and reasonable terms substantially as favorable to a Restricted
Company as would be obtainable by such Restricted Company at the time in a
comparable arm's-length transaction with a Person other than an Affiliate, (c)
the payment of fees and expenses in connection with the consummation of the
Transaction, (d) so long as no Event of Default shall have occurred and be
continuing under Section 8.01(f), the payment of fees under the Management
Agreements as such fee provisions are set forth in the Management Agreements as
in effect on the Closing Date, (e) loans and other transactions by the Company
and its Restricted Subsidiaries to the extent permitted under this Article 7,
(f) customary fees payable to any directors of the Company and reimbursement of
reasonable out of pocket costs of the directors of the Company, (g) employment
and severance arrangements between any Restricted Company and their officers and
employees in the ordinary course of business, (h) payments by any Restricted
Company pursuant to the tax sharing agreements among the Company and its
Subsidiaries on customary terms, (i) the payment of customary fees and
indemnities to directors, officers and employees of the Company and its
Subsidiaries in the ordinary course of business, (j) transactions pursuant to
agreements in existence on the Closing Date and set forth on Schedule 7.08 or
any amendment thereto to the extent such an amendment is not adverse to the
Lenders in any material respect, (k) Restricted Payments permitted under Section
7.06, (l) any transaction with a Securitization Vehicle as part of a
Securitization Financing permitted under Section 7.03(v), and (m) transactions
engaged in by Restricted Companies with Unrestricted Subsidiaries in good faith
to effect (i) the Cash Management Practices and Vault Cash Operations, (ii) the
operations, governance, administration and corporate overhead of the
Consolidated Companies and (iii) the tax management of the Consolidated
Companies. For the purposes of this Section 7.08, (x) each Unrestricted
Subsidiary shall be deemed to be an Affiliate of each Restricted Company and (y)
from and after the consummation of the Reorganization, the entities conducting
the Separated Operations shall no longer be deemed to be Affiliates of the
Restricted Companies.
Section 7.09. Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that limits the ability of any Restricted Subsidiary to make Restricted Payments
to any Loan Party or to otherwise transfer property to or invest in any Loan
Party; provided that the foregoing shall not apply to Contractual Obligations
which (i) (x) exist on the date hereof and (to the extent not otherwise
permitted by this Section 7.09) are listed on Schedule 7.09 hereto and (y) to
the extent Contractual Obligations permitted by clause (x) are set forth in an
agreement evidencing Indebtedness, are set forth in any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as such
renewal, extension or refinancing does not expand the scope of such restrictions
that are contained in such Contractual Obligation, (ii) are binding on a
Restricted Subsidiary at the time such Restricted Subsidiary first becomes a
Restricted Subsidiary, so long as such Contractual Obligations were not entered
into solely in contemplation of such Person becoming a Restricted Subsidiary,
(iii) arise in connection with any Disposition permitted by Section 7.05, (iv)
are customary provisions in joint venture agreements and other similar
agreements applicable to Joint Ventures permitted under Section 7.02 and
applicable solely to such Joint Venture entered into in the ordinary course of
business, (v) are negative pledges in favor of any holder of Indebtedness
permitted under Section 7.03 but
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solely to the extent any negative pledge relates to the property financed by or
the subject of such Indebtedness, (vi) are customary restrictions on leases,
subleases, licenses or asset sale agreements otherwise permitted hereby so long
as such restrictions may relate to the assets subject thereto, (vii) are
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest, or (viii) are customary provisions restricting assignment
or transfer of any agreement entered into in the ordinary course of business.
Section 7.10. Financial Covenants. (a) Maximum Leverage Ratio. Permit the
Leverage Ratio as of the end of any fiscal quarter of the Company set forth
below to be greater than the ratio set forth below opposite the applicable
period ending date:
PERIOD ENDING DATE LEVERAGE RATIO
------------------------------------------- ---------------
December 31, 2006 through December 31, 2008 3.50:1
March 31, 2009 through December 31, 2009 3.25:1
March 31, 2010 and thereafter 3.00:1
(b) Minimum Interest Coverage Ratio. Permit the Interest Coverage Ratio as
of the end of any fiscal quarter of the Company set forth below to be less than
the ratio set forth below opposite the applicable period ending date:
PERIOD ENDING DATE INTEREST COVERAGE RATIO
------------------------------------------- -----------------------
December 31, 2006 through December 31, 2008 3.50:1
March 31, 2009 and thereafter 4.00:1
Section 7.11. Prepayments, Etc. of Indebtedness. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner (it being understood that payments of regularly scheduled interest
shall be permitted) any Permitted Subordinated Indebtedness or make any payment
in violation of any subordination terms of any Permitted Subordinated
Indebtedness, except (i) the refinancing thereof with the Net Cash Proceeds of
any Permitted Subordinated Indebtedness or with the proceeds of any issuance of
Equity Interests (other than Disqualified Equity Interests) of any Consolidated
Company, (ii) the conversion of any Permitted Subordinated Indebtedness to
Equity Interests (other than Disqualified Equity Interests) and (iii) so long as
no Event of Default has occurred and is continuing or would result therefrom,
prepayments, redemptions or repurchases of Permitted Subordinated Indebtedness
if after giving effect to such prepayment, redemption or repurchase, the
Leverage Ratio, calculated on a Pro Forma Basis, shall not be greater than
3.25:1 (and, in the case of any such prepayment, redemption or repurchase
pursuant to this clause (iii) in respect of aggregate principal amounts
exceeding $25,000,000 in any fiscal year, evidenced by a certificate from a
Responsible Officer of the Company demonstrating such compliance calculation in
reasonable detail).
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Any of the following shall constitute an
"EVENT OF DEFAULT":
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(a) Non-Payment. Any Restricted Company fails to pay (i) when due, any
amount of principal of any Loan, or (ii) within five Business Days after the
same becomes due, any interest on any Loan or any other amount payable hereunder
or with respect to any other Loan Document; or
(b) Specific Covenants. Any Restricted Company fails to perform or observe
any term, covenant or agreement contained in any of Section 6.03(a), 6.05(a)
(solely with respect to the Borrowers) or Article 7; or
(c) Other Defaults. Any Restricted Company fails to perform or observe any
other term, covenant or agreement (not specified in Section 8.01(a) or (b)
above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days after notice thereof by the
Administrative Agent to the Company; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any
Restricted Company herein, in any other Loan Document, or in any document
required to be delivered in connection herewith or therewith shall be incorrect
or misleading in any material and adverse respect when made or deemed made; or
(e) Cross-Default. Any Material Company (i) fails to make any payment
after the applicable grace period with respect thereto, if any, (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness
owed by one Restricted Company to another Restricted Company) having an
aggregate outstanding principal amount of not less than the Threshold Amount or
(ii) fails to observe or perform any other agreement or condition relating to
any such Indebtedness, 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 a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, (x) such
Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or (y) a mandatory offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity;
provided that this clause (e)(ii) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness, if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness; or
(f) Insolvency Proceedings, Etc. Any Material Company 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, administrator, administrative receiver or similar officer for it
or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, administrator, administrative
receiver 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
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(g) Inability to Pay Debts; Attachment. (i) Any Material Company 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 all or any material part of the
property of any Material Company in an amount exceeding the Threshold Amount and
is not paid, released, vacated or fully bonded within 60 days after its issue or
levy; or
(h) Judgments. There is entered against any Material Company a final
judgment or order for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent not covered by independent third-party insurance
as to which the insurer has been notified of such judgment or order and does not
deny coverage) and there is a period of 60 consecutive days during which such
judgment has not been paid and 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 the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount which would reasonably be
expected to result in a Material Adverse Effect, or (ii) the Company or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
which would reasonably be expected to result in a Material Adverse Effect; or
(j) Change of Control. There occurs any Change of Control.
Section 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 each Borrower;
(c) require that each Borrower 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 or applicable Law;
provided 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, in the case of any Designated Borrower that is a Foreign Subsidiary,
under the comparable laws of the applicable
103
jurisdiction), 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 each Borrower 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.
Section 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 Attorney Costs
payable under Section 11.04 and amounts payable under Article 3 but
excluding principal of, and interest on, any Loan) 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)
payable to the Lenders (including Attorney Costs payable under Section
11.05 and amounts payable under Article 3), 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 and L/C Borrowings, ratably among
the Lenders 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 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 the payment of all other Obligations of the Loan Parties
that are due and payable to the Administrative Agent and the other Lender
Parties on such date, ratably based upon the respective aggregate amounts
of all such Obligations owing to the Administrative Agent and the other
Lender Parties on such date; and
Last, the balance, if any, after all of the Obligations have been
paid in full, to the Company 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
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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
and, if no Obligations remain outstanding, delivered to the Company.
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of Agents. (a) Each Lender
hereby irrevocably appoints, designates and authorizes the Administrative Agent
to take such action on its behalf under the provisions of this Agreement and
each other Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein or therein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to any Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Each L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and each
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Agents in this Article 9 with respect to any acts taken or omissions suffered by
each L/C Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Agent" as used in
this Article 9 and in the definition of "Agent-Related Person" included such L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to such L/C Issuer.
Section 9.02. Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact, such sub-agents as shall be deemed
necessary by the Administrative Agent and shall be entitled to advice of counsel
and other consultants or experts concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or sub-agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
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representation or warranty made by any Loan Party or any of their Subsidiaries
or any officer thereof, contained herein or in any other Loan Document, or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Restricted Company or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any of their Subsidiaries or any Affiliate thereof.
Section 9.04. Reliance by Agents. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party or any of their Subsidiaries), independent accountants and
other experts selected by such Agent. Each Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in 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.
Section 9.05. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or a Loan
Party referring to this Agreement, describing such Default and stating that such
notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to any Event of Default as may be directed by the
Required Lenders in accordance with Article 8; provided that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking
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such action, with respect to such Event of Default as it shall deem advisable or
in the best interest of the Lenders.
Section 9.06. Credit Decision; Disclosure of Information by Agents. Each
Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by any Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party or any of their Subsidiaries thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to each Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of each Loan Party,
and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of each Loan Party or any of their Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by any Agent herein, such Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Loan Party or any of their Subsidiaries
which may come into the possession of any Agent-Related Person.
Section 9.07. Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person's own gross negligence or
willful misconduct; provided that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07; provided
further that to the extent an L/C Issuer is entitled to indemnification under
this Section 9.07 solely in connection with its role as an L/C Issuer, only the
Multicurrency Revolving Credit Lenders shall be required to indemnify such L/C
Issuer in accordance with this Section 9.07. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Liabilities, this
Section 9.07 applies whether any such investigation, litigation or proceeding is
brought by any Lender or any other Person. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment
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or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or referred
to herein, to the extent that the Administrative Agent is not reimbursed for
such expenses by or on behalf of the Borrowers. The undertaking in this Section
9.07 shall survive termination of the Aggregate Commitments, the payment of all
other Obligations and the resignation of the Administrative Agent.
Section 9.08. Agents in their Individual Capacities. JPMCB and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire Equity Interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with each
Loan Party or any of their Subsidiaries as though JPMCB were not the
Administrative Agent or the L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, JPMCB or its Affiliates may receive information regarding any Loan
Party or any of their Subsidiaries (including information that may be subject to
confidentiality obligations in favor of such Loan Party or any of their
Subsidiaries) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, JPMCB
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include JPMCB in
its individual capacity.
Section 9.09. Successor Agents. The Administrative Agent may resign as
the Administrative Agent upon 30 days' notice to the Lenders and the Company. If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be consented to by the Company at all times other than
during the existence of an Event of Default under Section 8.01(f) (which consent
of the Company shall not be unreasonably withheld or delayed). If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the Lenders. Upon
the acceptance of its appointment as successor agent hereunder, the Person
acting as such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent,"
shall mean such successor administrative agent and/or supplemental
administrative agent, as the case may be, and the retiring Administrative
Agent's appointment, powers and duties as the Administrative Agent shall be
terminated. After the retiring Administrative Agent's resignation hereunder as
the Administrative Agent, the provisions of this Article 9 and Section 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent under this Agreement. If no
successor agent has accepted appointment as the Administrative Agent by the date
which is 30 days following the retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above. Upon the acceptance of
any appointment as the Administrative Agent hereunder by a successor, the
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
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discharged from its duties and obligations under the Loan Documents. After the
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of this Article 9 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent.
Section 9.10. 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 any 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 and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Section 2.04(i) and (j), 2.10 and 11.04)
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 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, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the Agents
and their respective agents and counsel, and any other amounts due the
Administrative Agent under Section 2.10 and 11.04.
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 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.
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Section 9.11. Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent to release any Guarantor from its obligations under any
Loan Document to which it is a party if such Person ceases to be a Restricted
Subsidiary as a result of a transaction or designation permitted hereunder;
provided that no such release shall occur if such Guarantor continues to be a
guarantor in respect of any Permitted Subordinated Indebtedness unless and until
such Guarantor is (or is being simultaneously) released from its guarantee with
respect to such Permitted Subordinated Indebtedness. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent's authority to release any Guarantor from its
obligations under the Loan Documents pursuant to this Section 9.11. In each case
as specified in this Section 9.11, the Administrative Agent will, at the
Borrowers' expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such Guarantor from its obligations under the Loan Documents in accordance with
the terms of the Loan Documents and this Section 9.11.
Section 9.12. Other Agents; Arrangers and Managers. None of the Lenders
or other Persons identified on the facing page and/or signature pages of this
Agreement as a "co-syndication agent," "documentation agent," "joint
book-running manager," "arranger," or "joint lead arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
Section 9.13. Appointment of Supplemental Administrative Agents. (a) It
is the purpose of this Agreement and the other Loan Documents that there shall
be no violation of any Law of any jurisdiction denying or restricting the right
of banking corporations or associations to transact business as agent or trustee
in such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Administrative Agent
deems that by reason of any present or future Law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, the Administrative Agent is hereby authorized
to appoint an additional individual or institution selected by the
Administrative Agent in its sole discretion as a separate trustee, co-trustee,
administrative agent, administrative sub-agent or administrative co-agent (any
such additional individual or institution being referred to herein individually
as a "SUPPLEMENTAL ADMINISTRATIVE AGENT" and collectively as "SUPPLEMENTAL
ADMINISTRATIVE AGENTS").
(b) Should any instrument in writing from any Loan Party be required by
any Supplemental Administrative Agent so appointed by the Administrative Agent
for more fully and certainly vesting in and confirming to him or it such rights,
powers, privileges and duties, the Company, shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by the Administrative Agent. In case any Supplemental
Administrative Agent, or a successor thereto, shall die, become incapable of
acting, resign or be removed, all the rights, powers, privileges and duties of
such Supplemental Administrative
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Agent, to the extent permitted by Law, shall vest in and be exercised by the
Administrative Agent until the appointment of a new Supplemental Administrative
Agent.
ARTICLE 10
GUARANTY
Section 10.01. Guaranty. Each Borrower (other than a Designated Borrower
that is a Foreign Subsidiary) hereby guarantees the punctual payment when due,
whether at scheduled maturity or by acceleration, demand or otherwise, of all
Obligations of each other Borrower, in each case now or hereafter existing
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing Obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
fees, indemnities, contract causes of action, costs, expenses or otherwise (each
Borrower in its capacity as guarantor under this Article 10, a "GUARANTOR
PARTY", and such Obligations, for any Guarantor Party, its "GUARANTEED
OBLIGATIONS"). Without limiting the generality of the foregoing, the liability
of each Guarantor Party shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Lender
Party under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
Section 10.02. Contribution. Subject to Section 10.03, each Guarantor
Party hereby unconditionally agrees that in the event any payment shall be
required to be made to any Lender Party under this Article 10 or any Subsidiary
Guaranty, such Guarantor Party in its capacity as such will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor so as to
maximize the aggregate amount paid to the Lender Parties under or in respect of
the Loan Documents.
Section 10.03. Guaranty Absolute. Each Guarantor Party guarantees that
its Guaranteed Obligations will be paid in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender
Party with respect thereto. The Obligations of each Guarantor Party under or in
respect of this Article 10 are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor Party to enforce this Article 10, irrespective of whether
any action is brought against any Borrower or any other Loan Party or whether
any Borrower or any other Loan Party is joined in any such action or actions.
The liability of each Guarantor Party under this Article 10 shall be
irrevocable, absolute and unconditional, and each Guarantor Party hereby
irrevocably waives any defenses (other than payment in full of the Guaranteed
Obligations) it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of its Guaranteed Obligations or any other Obligations of
any other Loan Party under or in
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respect of the Loan Documents, or any other amendment or waiver of or any
consent to departure from any Loan Document, including, without limitation, any
increase in its Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of its Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;
(e) any failure of any Lender Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Lender Party (each Guarantor Party waiving any duty on
the part of the Lender Parties to disclose such information);
(f) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any other
guarantor or surety with respect to its Guaranteed Obligations; or
(g) any other circumstance or any existence of or reliance on any
representation by any Lender Party that might otherwise constitute a defense
available to, or a discharge of, any Loan Party or any other guarantor or surety
other than satisfaction in full of the Obligations.
This Article 10 shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of such Guarantor Party's Guaranteed
Obligations is rescinded or must otherwise be returned by any Lender Party or
any other Person upon the insolvency, bankruptcy or reorganization of any
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
Section 10.04. Waiver and Acknowledgments. (a) Each Guarantor Party
hereby waives promptness, diligence, notice of acceptance, presentment, demand
for performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of its Guaranteed Obligations
and this Article 10 (other than any notice expressly required by the Loan
Documents) and any requirement that any Lender Party exhaust any right or take
any action against any Loan Party or any other Person.
(b) Each Guarantor Party hereby unconditionally and irrevocably waives any
right to revoke this Article 10 and acknowledges that this Article 10 is
continuing in nature and applies to all of its Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor Party hereby unconditionally and irrevocably waives any
defense arising by reason of any claim or defense based upon an election of
remedies by any Lender Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor Party or other rights
of such Guarantor Party to proceed against any of the other Loan Parties, any
other guarantor or any other Person and any defense based on any right of
set-off or
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counterclaim against or in respect of the Obligations of such Guarantor Party
under this Article 10.
(d) Each Guarantor Party hereby unconditionally and irrevocably waives any
duty on the part of any Lender Party to disclose to such Guarantor Party any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such Lender Party.
(e) Each Guarantor Party acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Article 10 are knowingly
made in contemplation of such benefits.
Section 10.05. Subrogation. Each Guarantor Party hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against any other Loan Party (including, in the case of each
Borrower and Guarantor Party, each other Borrower) or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor Party's Obligations under or in respect any Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Lender Party against any other Loan Party or any other
insider guarantor, whether or not such claim, remedy or right arises in equity
or under contract, statute or common law, including, without limitation, the
right to take or receive from any other Loan Party or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
unless and until all of such Guarantor Party's Guaranteed Obligations and all
other amounts payable under this Article 10 shall have been paid in full in
cash, all Letters of Credit shall have expired or been terminated or otherwise
provided for in full in a manner reasonably satisfactory to the L/C Issuer and
the Commitments shall have expired or been terminated. If any amount shall be
paid to any Guarantor Party in violation of the immediately preceding sentence
at any time prior to the latest of (a) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Article 10, (b)
the Maturity Date and (c) the latest date of expiration or termination of all
Letters of Credit or other provision therefor in full in a manner reasonably
satisfactory to the L/C Issuer, such amount shall be received and held in trust
for the benefit of the Lender Parties, shall be segregated from other property
and funds of such Guarantor Party and shall forthwith be paid or delivered to
the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to such Guarantor Party's
Guaranteed Obligations and all other amounts payable by it under this Article
10, whether matured or unmatured, in accordance with the terms of the Loan
Documents. If (i) all of the Guaranteed Obligations and all other amounts
payable under this Article 10 shall have been paid in full in cash, (ii) the
Maturity Date shall have occurred and (iii) all Letters of Credit shall have
expired or been terminated or other provision therefor in full shall have been
made in a manner reasonably satisfactory to the L/C Issuer, the Lender Parties
will, at any Guarantor Party's request and expense, execute and deliver to such
Guarantor Party appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor Party of an interest in the Guaranteed Obligations resulting from
such payment made by such Guarantor Party pursuant to this Article 10.
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Section 10.06. Payment Free and Clear of Taxes. Any and all payments by
any Guarantor Party under this Article 10 shall be made in accordance with the
provisions of this Agreement, including the provisions of Section 3.01 (and such
Guarantor Party shall make such payments of Taxes or Other Taxes to the extent
described in Section 3.01), as though such payments were made by a Borrower.
Section 10.07. No Waiver; Remedies. No failure on the part of any Lender
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 10.08. Right of Set-Off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 8.02 to authorize the
Administrative Agent to declare the Loans due and payable pursuant to the
provisions of said Section 8.02, the Administrative Agent and, after obtaining
the prior written consent of the Administrative Agent, each other Agent and each
Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, but not any deposits held in a custodial, trust or other fiduciary
capacity) at any time held and other indebtedness at any time owing by such
Agent, such Lender or such Affiliate to or for the credit or the account of any
Guarantor Party against any and all of the Obligations of such Guarantor Party
now or hereafter existing under any Loan Document, irrespective of whether such
Agent or such Lender shall have made any demand under any Loan Document and
although such Obligations may be unmatured. Each Agent and each Lender agrees
promptly to notify such Guarantor Party after any such set-off and application;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Agent and each Lender and their
respective Affiliates under this Section 10.08 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender and their respective Affiliates may have.
Section 10.09. Continuing Guaranty; Assignments under the Credit
Agreement. This Article 10 is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Article 10, (ii)
the Maturity Date and (iii) the latest date of expiration or termination of all
Letters of Credit or other provision therefor in full in a manner reasonably
satisfactory to the L/C Issuer, (b) be binding upon each Guarantor Party, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Lender Parties and their permitted successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, any
Lender Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitments, the Loans owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender Party
herein or otherwise, in each case as and to the extent provided in Section
11.07. No Guarantor Party shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all Lenders.
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Section 10.10. Subordination of Certain Intercompany Indebtedness. Each
Guarantor Party hereby agrees that any Indebtedness owed by it to another Loan
Party shall be subordinated to the Obligations of such Guarantor Party and that
any Indebtedness owed to it by another Loan Party shall be subordinated to the
Obligations of such other Loan Party, it being understood that such Guarantor
Party or such other Loan Party, as the case may be, may make payments on such
intercompany Indebtedness unless an Event of Default has occurred and is
continuing.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc. (a) No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by any Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that:
(i) no amendment, waiver or consent shall, without the written
consent of each Lender directly affected thereby:
(A) extend or increase the Commitment of any Lender (it being
understood that a waiver of any condition precedent set forth in
Section 4.01 or 4.02 or the waiver of any Default, Event of Default
or mandatory prepayment shall not constitute an extension or
increase of any Commitment of any Lender);
(B) postpone any date scheduled for any payment of principal
or interest under Section 2.08 or 2.09 or fees under Section 2.04(i)
or 2.10(a), it being understood that the waiver of any mandatory
prepayment of the Term Loans shall not constitute a postponement of
any date scheduled for the payment of principal or interest;
(C) reduce or forgive the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject
to clause (iii) of the second proviso to this Section 11.01) any
fees or other amounts payable hereunder or under any other Loan
Document, it being understood that any change to the definition of
Leverage Ratio or in the component definitions thereof shall not
constitute a reduction in the rate of interest; provided that only
the consent of the Required Lenders shall be necessary to amend the
definition of "Default Rate" or to waive any obligation of any
Borrower to pay interest at the Default Rate; or
(D) change Section 2.14 or 8.03 in any manner that would alter
the pro rata sharing of payments required thereby; and
(ii) no amendment, waiver or consent shall, without the written
consent of each Lender:
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(A) change any provision of this Section 11.01 or the
definition of "Required Lenders" or any other provision hereof
specifying 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; or
(B) release all or substantially all of the value of the
Guaranty;
provided further that:
(1) 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 Letter
of Credit Application relating to any Letter of Credit issued or to be
issued by it;
(2) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lenders in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lenders under this
Agreement;
(3) 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, or any fees or other amounts
payable to, the Administrative Agent under this Agreement or any other
Loan Document;
(4) Section 11.07(i) 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; and
(5) the Fee Letters may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
(b) 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 Commitment of such Lender may not be increased or
extended without the consent of such Lender (it being understood that any
Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded from a vote of the Lenders hereunder requiring any consent of the
Lenders).
(c) Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Company (i) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and the Revolving Credit Loans and the accrued interest and
fees in respect thereof and (ii) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders.
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(d) Notwithstanding anything to the contrary contained herein, in order to
implement any Additional Term Loan Tranche or Additional Revolving Credit
Commitments in accordance with Section 2.16, this Agreement may be amended for
such purpose (but solely to the extent necessary to add such Additional Term
Loan Tranche or Additional Revolving Credit Commitments in accordance with
Section 2.16) by the Company, the Administrative Agent and the relevant Lenders
providing such Additional Term Loan Tranche or Additional Revolving Credit
Commitments.
(e) In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Company and
the Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing of all outstanding Term Loans ("REFINANCED TERM LOANS")
with a replacement term loan tranche hereunder ("REPLACEMENT TERM LOANS");
provided that (i) the aggregate principal amount of such Replacement Term Loans
shall not exceed the aggregate principal amount of such Refinanced Term Loans,
(ii) the Applicable Margin for such Replacement Term Loans shall not be higher
than the Applicable Margin for such Refinanced Term Loans, (iii) the weighted
average life to maturity of such Replacement Term Loans shall not be shorter
than the weighted average life to maturity of such Refinanced Term Loans at the
time of such refinancing and (iv) all other terms applicable to such Replacement
Term Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the Term Loans
in effect immediately prior to such refinancing.
(f) Notwithstanding anything to the contrary contained in this Section
11.01, in the event that the Company requests that this Agreement be modified or
amended in a manner that would require the unanimous consent of all of the
Lenders and such modification or amendment is agreed to by one or more Lenders
(the "CONSENTING LENDERS"), then with the consent of the Company and the
Consenting Lenders, the Company and the Consenting Lenders shall be permitted to
amend this Agreement without the consent of the Lender or Lenders that did not
agree to the modification or amendment requested by the Company (such Lender or
Lenders, collectively the "DISSENTING LENDERS") to provide for (i) the
termination of the Commitment of each of the Dissenting Lenders, (ii) the
addition to this Agreement of one or more other financial institutions (each of
which shall be an Eligible Assignee), or an increase in the Commitment of one or
more of the Consenting Lenders (with the written consent thereof), so that the
total Commitment after giving effect to such amendment shall be in the same
amount as the total Commitment immediately before giving effect to such
amendment, (iii) if any Loans (including, for the avoidance of doubt, any L/C
Advances and Specified Rate Loans made by any Dissenting Lender) are outstanding
at the time of such amendment, the making of such additional Loans by such new
financial institutions or Consenting Lender or Lenders, as the case may be, as
may be necessary to repay in full, at par, the outstanding Loans of the
Dissenting Lenders immediately before giving effect to such amendment and (iv)
such other modifications to this Agreement as may be appropriate to effect the
foregoing clauses (i), (ii) and (iii).
Section 11.02. Notices and Other Communications; Facsimile Copies. (a)
Generally. Unless otherwise expressly provided herein, all notices and other
communications provided for under any Loan Document shall be in writing
(including by facsimile transmission and, except as
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otherwise specifically provided herein, electronic mail). All such written
notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to Section 11.02(c)) electronic mail address, 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 any Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lenders, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 11.02 or
to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the
other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Company, the Administrative Agent, the L/C Issuer
and the Swing Line Lenders.
All such notices and other communications shall be deemed to be given or made
upon the earlier of (x) actual receipt by the relevant party and (y) (A) if
delivered by hand or by courier, when signed for by or on behalf of the relevant
party; (B) if delivered by mail, four Business Days after deposit in the mails,
postage prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail, when delivered;
provided that notices and other communications to the Administrative Agent, the
L/C Issuer and the Swing Line Lenders pursuant to Article 2 shall not be
effective until actually received by such Person. In no event shall a voice mail
message be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile or other electronic means. The
effectiveness of any such documents and signatures shall, subject to applicable
Law, have the same force and effect as manually signed originals and shall be
binding on each Loan Party, each Agent and each Lender. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually signed original thereof; provided that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or
signature.
(c) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including electronic 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 2 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 communication. The Administrative Agent or the Company
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.
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(d) Reliance by Agents and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of any 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. Such Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of such Borrower in the absence of gross
negligence or willful misconduct.
Section 11.03. No Waiver; Cumulative Remedies. No failure by any Lender
or the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document 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 provided under each Loan
Document are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law.
Section 11.04. Attorney Costs, Expenses and Taxes. Each Borrower agrees
(a) to pay or reimburse the Administrative Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation, syndication and execution of this Agreement and the other Loan
Documents, and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs of a
single firm of attorneys acting as counsel to the Administrative Agent, and (b)
to pay or reimburse the Administrative Agent and each Lender for all reasonable
out-of-pocket costs and expenses incurred in connection with the enforcement of
any rights or remedies under this Agreement or the other Loan Documents
(including all such costs and expenses incurred during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs of counsel to the Administrative Agent. All amounts due under this Section
11.04 shall be paid within ten (10) Business Days after receipt by the Company
of an invoice in reasonable detail. The agreements in this Section 11.04 shall
survive the termination of the Aggregate Commitments and repayment of all other
Obligations. If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it hereunder or under any Loan Document, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender, in its sole discretion.
Section 11.05. Indemnification by the Borrowers. Whether or not the
transactions contemplated hereby are consummated, the Borrowers shall jointly
and severally indemnify and hold harmless each Agent, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents,
attorneys-in-fact, trustees and advisors (collectively the "INDEMNITEES") from
and against any and all liabilities, losses, damages, claims and costs
(including Attorney Costs, which shall be limited to one counsel to the
Administrative Agent and the Lenders (exclusive of one local counsel to the
Administrative Agent and the Lenders in each relevant jurisdiction), unless (x)
the interests of the Administrative Agent and the Lenders are sufficiently
divergent, in which case one additional counsel may be appointed and (y) if the
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interests of any Lender or group of Lenders (other than all of the Lenders) are
distinctly or disproportionately affected, one additional counsel for such
Lender or group of Lenders in the case of clause (a) below) of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in
connection with:
(a) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby;
(b) any Commitment, 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); or
(c) any actual or alleged presence or release of Hazardous Materials on or
from any property currently or formerly owned or operated by any Restricted
Company or any of their Subsidiaries, or any Environmental Liability related in
any way to any Restricted Company or any of their Subsidiaries; or
(d) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto;
(all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such liabilities, losses, damages, claims and
costs (x) have resulted from the gross negligence or willful misconduct of such
Indemnitee or breach of the Loan Documents by such Indemnitee as determined by
the final non-appealable judgment of a court of competent jurisdiction or (y)
arise from claims of any of the Lenders solely against one or more Lenders that
have not resulted from any misrepresentation, default or the breach of any Loan
Document or any actual or alleged performance or non-performance by a Borrower
or one of its Subsidiaries or other Affiliates or any of their respective
officers, directors, stockholders, partners, members, employees, agents,
representatives or advisors. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, except to the extent resulting from the willful
misconduct or gross negligence of such Indemnitee as determined by the final
non-appealable judgment of a court of competent jurisdiction, nor shall any
Indemnitee or any Loan Party have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 11.05
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnitee or any other
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Person, whether or not any Indemnitee is otherwise a party thereto and whether
or not any of the transactions contemplated hereunder or under any of the other
Loan Documents is consummated. All amounts due under this Section 11.05 shall be
paid promptly after receipt by the Company of an invoice in reasonable detail.
The agreements in this Section 11.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
Section 11.06. Payments Set Aside. To the extent that any payment by or
on behalf of any Borrower is made to any Agent or any Lender, or any Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by any
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 applicable Federal Funds Rate
from time to time in effect.
Section 11.07. Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby. 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 Section 11.07(f) and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Notwithstanding Section 11.07(a), neither the Company nor any other
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender.
(c) Notwithstanding Section 11.07(a), 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 Section 11.07(d), (ii) by way of
participation in accordance with the provisions of Section 11.07(f), (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of Section 11.07(h) and Section 11.07(j) or (iv) to an SPC in accordance with
the provisions of Section 11.07(i) (and any other attempted assignment or
transfer by any party hereto shall be null and void).
(d) 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; provided
that
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(i) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Commitment and the Loans 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, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then in
effect, the outstanding principal balance of the Loan of the assigning Lender
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $25,000,000, in the case of any
assignment in respect of the Revolving Credit Facility, or $10,000,000, in the
case of any assignment in respect of any Term Loans, unless each of the
Administrative Agent and, so long as no Event of Default in respect of Section
8.01(a) or (f) has occurred and is continuing, the Company otherwise consents
(each such consent not to be unreasonably withheld or delayed);
(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 Loans or the Commitment assigned, 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 separate Facilities on a non-pro rata basis;
(iii) any assignment of a Term Loan or a Revolving Credit Commitment to an
Eligible Assignee must be approved, if applicable, by the Persons specified for
such assignment in the definition of Eligible Assignee;
(iv) the parties (other than the Company unless its consent to such
assignment is required hereunder) 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 (which fee the Company shall have no
obligation to pay except as required in Section 3.09); and
(v) the assigning Lender shall deliver any Notes evidencing such Loans to
the Company or the Administrative Agent (and the Administrative Agent shall
deliver such Notes to the Company). Subject to acceptance and recording thereof
by the Administrative Agent pursuant to Section 11.07(e), 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 Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Section 3.01,
3.04, 3.05, 3.07, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, and the
surrender by the assigning Lender of its Note, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender.
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Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this clause (d) 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 Section 11.07(f).
(e) The Administrative Agent, acting solely for this purpose as an agent
of each Borrower, 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 the Commitments of,
and principal amounts (and related interest amounts) of the Loans, L/C
Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts
due under Section 2.04 owing to each Lender pursuant to the terms hereof from
time to time (the "REGISTER"). The entries in the Register shall be conclusive,
absent manifest error, and each Borrower, each Agent and each Lender shall 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 any Borrower,
any Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(f) 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) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement; 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, each Agent and each
other Lender 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 the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or the other Loan
Documents; 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 Section 11.01(a)(i) that directly
affects such Participant. Subject to Section 11.07(g), each Participant shall be
entitled to the benefits of Section 3.01, and Sections 3.04 through 3.07 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 11.07(d). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 11.10 as though it were a
Lender; provided that such Participant agrees to be subject to Section 2.14 as
though it were a Lender.
(g) A Participant shall not be entitled to receive any greater payment
under Section 3.01 and Sections 3.04 through 3.07 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 each Borrower's prior written consent and such Participant complies
with Section 11.16 as if such Participant were a Lender under Section 11.16. A
Participant shall not be entitled to the benefits of Section 3.01 unless each
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of each Borrower, to comply with Section
11.16 as though it were a Lender.
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(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement under its Note, if any to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a 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.
(i) Notwithstanding anything to the contrary contained herein:
(i) any Lender (a "GRANTING LENDER") may grant to a special purpose
funding vehicle (an "SPC") identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company 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
(A) nothing herein shall constitute a commitment by any SPC to
fund any Loan, and
(B) 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.
(ii) (A) 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 any Borrower under this Agreement (including its
obligations under Section 3.01 or 3.04 through 3.07), (B) no SPC shall be
liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (C) 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 Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender.
(iii) any SPC may (A) with notice to, but without prior consent of
any Borrower or the Administrative Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (B)
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.
(j) Notwithstanding anything to the contrary contained herein, any Lender
that is a Fund may create a security interest in all or any portion of the Loans
owing to it and the Note, if any, held by it to the trustee for holders of
obligations owed, or securities issued, by such Fund as security for such
obligations or securities; provided that unless and until such trustee actually
becomes a Lender in compliance with the other provisions of this Section 11.07,
(i) no such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents, (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan
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Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise (unless such
trustee is an Eligible Assignee which has complied with the requirements of
Section 11.07(d)).
Section 11.08. Successors. Notwithstanding anything to the contrary
contained herein, either or both of JPMCB and Bank of America may, upon 30 days'
notice to the Company and the Lenders, resign as L/C Issuer and/or Swing Line
Lender; provided that on or prior to the expiration of such 30-day period with
respect to JPMCB's resignation as L/C Issuer, JPMCB shall have identified a
successor L/C Issuer reasonably acceptable to the Company willing to accept its
appointment as successor L/C Issuer. In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Company shall be entitled to appoint a
successor L/C Issuer or Swing Line Lender from among the Lenders willing to
accept such appointment; provided that a failure by the Company to appoint any
such successor shall not affect the resignation of JPMCB or Bank of America as
L/C Issuer or Swing Line Lender, as the case may be, except as provided above.
If JPMCB resigns as L/C Issuer, it shall retain all the rights and obligations
of the L/C Issuer 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
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.04(c)). If JPMCB or Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender 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 Specified Rate Loans or fund
risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c).
Section 11.09. Confidentiality. Each Agent and each Lender agrees to
maintain the confidentiality of the Information, except that the Information may
be disclosed (a) to its directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and who have agreed or are otherwise obligated to
keep such Information confidential, and the applicable Agent or Lender shall be
responsible for compliance by such Persons with such obligations); (b) to the
extent requested by any regulatory authority having jurisdiction over the
applicable Agent or Lender; (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; provided that the Agent
or Lender that discloses any Information pursuant to this clause (c) shall
provide the Company prompt notice of such disclosure; (d) to any other party to
this Agreement; (e) subject to an agreement containing provisions substantially
the same as (or no less restrictive than) those of this Section 11.09 (or as may
otherwise be reasonably acceptable to each Borrower), (x) to any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (y) to
any direct, indirect, actual or prospective counterparty (and its advisor) to
any swap, derivative or securitization transaction related to its obligations
under this Agreement; (f) with the written consent of the Company; (g) to the
extent such Information becomes publicly available other than as a result of a
breach of this Section 11.09; (h) to any state, Federal or foreign authority or
examiner (including the National Association of Insurance Commissioners or any
other similar organization) regulating any Lender; or (i) to any rating agency
when required by it (it being understood that, prior to any such disclosure,
such rating agency shall undertake to preserve the confidentiality of any
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Information relating to the Loan Parties received by it from such Lender). In
addition, any Agent and any Lender may disclose the existence of this Agreement
and information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to any Agent and any
Lender in connection with the administration and management of this Agreement,
the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section 11.09, "INFORMATION" means all information received
from any Loan Party relating to any Loan Party or its business, other than any
such information that is publicly available to any Agent or any Lender prior to
disclosure by any Loan Party other than as a result of a breach of this Section
11.09.
Section 11.10. Set-off. In addition to any rights and remedies of each
Lender provided by Law, upon the occurrence and during the continuance of any
Event of Default, after obtaining the prior written consent of the
Administrative Agent, each Lender is authorized at any time and from time to
time, without prior notice to any Loan Party, any such notice being waived by
each Borrower (on its own behalf and on behalf of each other Loan Party) to the
fullest extent permitted by Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, but not any deposits
held in a custodial, trust or other fiduciary capacity), at any time held by,
and other Indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Administrative Agent and each Lender under this Section 11.10
are in addition to other rights and remedies (including other rights of setoff)
that the Administrative Agent and such Lender may have.
Section 11.11. Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under any Loan Document shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If any 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 such Borrower. In determining whether the
interest contracted for, charged, or received by an 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.
Section 11.12. Counterparts. This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Delivery by telecopier of an executed counterpart of a signature
page to this Agreement and each other Loan Document shall be effective as
delivery of an original executed counterpart of this Agreement and such other
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Loan Document. The Agents may also require that any such documents and
signatures delivered by telecopier be confirmed by a manually signed original
thereof; provided that the failure to request or deliver the same shall not
limit the effectiveness of any document or signature delivered by telecopier.
Section 11.13. Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of any Agent or any Lender in any other
Loan Document shall not be deemed a conflict with this Agreement and subject, in
the case of Letter of Credit Applications, to the last sentence of Section
2.04(b)(i). Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
Section 11.14. 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 each Agent
and each Lender, regardless of any investigation made by any Agent or any Lender
or on their behalf and notwithstanding that any Agent 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.
Section 11.15. Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.16. Tax Forms. (a) (i) Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the law of the
jurisdiction in which a Borrower 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 the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company 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 the Company or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Company or the Administrative
Agent as will enable the Company or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
(ii) Without limiting the generality of the foregoing, in the event
that a Borrower is resident for tax purposes in the United States, any
Foreign Lender shall
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deliver to the Company and the Administrative Agent, on or prior to the
date which is ten Business Days after the Closing Date (or upon accepting an
assignment of an interest herein), two duly signed, properly completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender
and entitling it to an exemption from, or reduction of, United States
withholding tax on all payments to be made to such Foreign Lender by the Company
or any other Loan Party pursuant to this Agreement or any other Loan Document)
or IRS Form W-8ECI or any successor thereto (relating to all payments to be made
to such Foreign Lender by the Company or any other Loan Party pursuant to this
Agreement or any other Loan Document) or such other evidence reasonably
satisfactory to the Company and the Administrative Agent that such Foreign
Lender is entitled to an exemption from, or reduction of, United States
withholding tax, including any exemption pursuant to Section 881(c) of the Code,
and in the case of a Foreign Lender claiming such an exemption under Section
881(c) of the Code, a certificate that establishes in writing to the Company and
the Administrative Agent that such Foreign Lender is not (A) a "bank" as defined
in Section 881(c)(3)(A) of the Code, (B) a 10-percent shareholder within the
meaning of Section 871(h)(3)(B) of the Code, or (C) a controlled foreign
corporation related to the Company within the meaning of Section 864(d) of the
Code. Thereafter and from time to time, each such Foreign Lender shall (1)
promptly submit to the Company and the Administrative Agent such additional duly
and properly completed and signed copies of one or more of such forms or
certificates (or such successor forms or certificates as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is reasonably satisfactory to the Company and the
Administrative Agent of any available exemption from, or reduction of, United
States withholding taxes in respect of all payments to be made to such Foreign
Lender by the Borrowers or other Loan Party pursuant to this Agreement, or any
other Loan Document, in each case, (x) on or before the date that any such form,
certificate or other evidence expires or becomes obsolete, (y) after the
occurrence of any event requiring a change in the most recent form, certificate
or evidence previously delivered by it to the Company and the Administrative
Agent and (z) from time to time thereafter if reasonably requested by the
Company or the Administrative Agent, and (2) promptly notify the Company and the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(iii) Each Foreign Lender, to the extent it does not act or ceases to act
for its own account with respect to any portion of any sums paid or payable to
such Foreign Lender under any of the Loan Documents (for example, in the case of
a typical participation by such Foreign Lender), shall deliver to the Company
and the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination of the
Company or the Administrative Agent (in either case, in the reasonable exercise
of its discretion), (A) two duly signed, properly completed copies of the forms
or statements required to be provided by such Foreign Lender as set forth above,
to establish the portion of any such sums paid or payable with respect to which
such Foreign Lender acts for its own account that is not
128
subject to United States withholding tax, and (B) two duly signed, properly
completed copies of IRS Form W-8IMY (or any successor thereto), together with
any information such Foreign Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the Code, to
establish that such Foreign Lender is not acting for its own account with
respect to a portion of any such sums payable to such Foreign Lender.
(iv) Without limiting the obligations of the Lenders set forth above
regarding delivery of certain forms and documents to establish each Lender's
status for U.S. withholding tax purposes, each Lender agrees promptly to deliver
to the Administrative Agent or the Company, as the Administrative Agent or the
Company shall reasonably request, on or prior to the Closing Date, and in a
timely fashion thereafter, such other documents and forms required by any
relevant taxing authorities under the Laws of any other jurisdiction, duly
executed and completed by such Lender, as are required under such Laws to
confirm such Lender's entitlement to any available exemption from, or reduction
of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in such
other jurisdiction. Each Lender shall promptly (i) notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any such jurisdiction
that any Borrower make any deduction or withholding for taxes from amounts
payable to such Lender. Additionally, each of the Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent
or such Lender shall reasonably request, on or prior to the Closing Date, and in
a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by such Borrower, as are required to be furnished by such Lender or
the Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.
(v) The Borrowers shall not be required to pay any additional amount or
any indemnity payment under Section 3.01 to (A) any Foreign Lender with respect
to any Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender transmits
pursuant to this Section 11.16(a), (B) any Foreign Lender if such Foreign Lender
shall have failed to satisfy the foregoing provisions of this Section 11.16(a),
or (C) any U.S. Lender if such U.S. Lender shall have failed to satisfy the
provisions of Section 11.16(b); provided that if such Lender shall have
satisfied the requirement of this Section 11.16(a) or Section 11.16(b), as
applicable, on the date such Lender became a Lender or ceased to act for its own
account with respect to any payment under any of the Loan Documents, nothing in
this Section 11.16(a) or Section 11.16(b) shall relieve the Borrowers of their
obligation to pay any amounts pursuant to Section 3.01 in the event that, as a
result of any change in any
129
applicable Law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, such
Lender is no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that such Lender
or other Person for the account of which such Lender receives any sums
payable under any of the Loan Documents is not subject to withholding or
is subject to withholding at a reduced rate.
(vi) The Administrative Agent may deduct and withhold any taxes
required by any Laws to be deducted and withheld from any payment under
any of the Loan Documents.
(b) Each Lender and Agent that is a "United States person" within the
meaning of Section 7701(a)(30) of the Code (each, a "U.S. LENDER") shall deliver
to the Administrative Agent and the Company two duly signed, properly completed
copies of IRS Form W-9 on or prior to the Closing Date (or on or prior to the
date it becomes a party to this Agreement), certifying that such U.S. Lender is
entitled to an exemption from United States backup withholding tax, or any
successor form. If such U.S. Lender fails to deliver such forms, then the
Administrative Agent may withhold from any payment to such U.S. Lender an amount
equivalent to the applicable backup withholding tax imposed by the Code and the
Borrowers shall not be liable for any additional amounts with respect to such
withholding.
(c) If any Governmental Authority asserts that the Borrowers or the
Administrative Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Foreign Lender or U.S. Lender, such Foreign Lender or U.S. Lender shall
indemnify the Borrowers and the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Borrowers and the Administrative Agent under this Section 11.16,
and costs and expenses (including Attorney Costs) of the Borrowers and the
Administrative Agent. The obligation of the Foreign Lenders or U.S. Lenders,
severally, under this Section 11.16 shall survive the termination of the
Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
Section 11.17. Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER, EACH AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
130
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
Section 11.18. Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.18 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
Section 11.19. Binding Effect. This Agreement shall become effective when
it shall have been executed by each Borrower and the Administrative Agent shall
have been notified by each Lender, each Swing Line Lender and the L/C Issuer
that each such Lender, Swing Line Lender and the L/C Issuer has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrowers, each
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
Section 11.20. No Implied Duties. The Borrowers acknowledge that (a) the
sole role of the Arrangers is to syndicate the Facilities and to arrange for
future amendments and other modifications hereto and (b) no Agent has any duty
other than as expressly provided herein. Without limiting the generality of the
foregoing, the Borrowers agree that no Arranger or Agent shall in any event be
subject to any fiduciary or other implied duties. Additionally, the Borrowers
acknowledge and agree that the Arrangers are not advising the Borrower as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
The Borrowers have consulted and will continue to consult with their own
advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby
(including any amendments or other modifications hereto), and no Arranger or
Lender Party shall have any responsibility or liability to any Borrower with
respect thereto. Any review by any Arranger or Lender Party of the Borrowers,
the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of such Arranger or Lender
Party and shall not be on behalf of any Borrower.
Section 11.21. 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) 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 each Borrower and each Guarantor, which information
includes the name and address of such Borrower or Guarantor and other
information that will
131
allow such Lender or the Administrative Agent, as applicable, to identify such
Borrower or Guarantor in accordance with the Act.
Section 11.22. Judgment Currency. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due hereunder or any
other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of each Borrower in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the "JUDGMENT CURRENCY")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the "AGREEMENT CURRENCY"), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Borrower in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to
such Borrower (or to any other Person who may be entitled thereto under
applicable law).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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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.
FIDELITY NATIONAL
INFORMATION SERVICES, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇
Title:Senior Vice President and
Treasure
JPMORGAN CHASE BANK, N.A., AS
ADMINISTRATIVE AGENT, SWING LINE
LENDER AND L/C ISSUER AND AS A
LENDER
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., AS
SWING LINE LENDER AND AS A LENDER
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Vice President
NAME OF LENDER:
-------------------------------
By:
-------------------------------
Name:
Title:
NAME OF LENDER: ------------------------------
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SCHEDULE 1.01A
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Multicurrency Revolving Credit Lenders for the
cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which
replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Administrative Agent shall calculate, as a percentage
rate, a rate (the "ADDITIONAL COST RATE") for each Multicurrency Revolving
Credit Lender, in accordance with the paragraphs set out below. The
Mandatory Cost will be calculated by the Administrative Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Revolving Credit Loan) and will be expressed as a percentage rate per
annum. The Administrative Agent will, at the request of the Company or any
Multicurrency Revolving Credit Lender, deliver to the Company or such
Lender as the case may be, a statement setting forth the calculation of
any Mandatory Cost.
3. The Additional Cost Rate for any Multicurrency Revolving Credit Lender
lending from a Lending Office in a Participating Member State will be the
percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by such Lender in its notice to the
Administrative Agent to be its reasonable determination of the cost
(expressed as a percentage of such Lender's participation in all Revolving
Credit Loans made from such Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Revolving
Credit Loans made from that Lending Office.
4. The Additional Cost Rate for any Multicurrency Revolving Credit Lender
lending from a Lending Office in the United Kingdom will be calculated by
the Administrative Agent as follows:
(a) in relation to any Revolving Credit Loan in Sterling:
AB+C(B-D)+E x 0.01
------------------- per cent per annum
100 - (A+C)
(b) in relation to any Revolving Credit Loan in any currency other than
Sterling:
E x 0.01
------------------- per cent per annum
300
Schedule 1.01A
Page 1
Where:
"A" is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable Rate,
the Mandatory Cost and any interest charged on overdue amounts
pursuant to the first sentence of Section 2.09(b) and, in the case
of interest (other than on overdue amounts) charged at the Default
Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest
Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of England to
the Administrative Agent on interest bearing Special Deposits.
"E" is designed to compensate Multicurrency Revolving Credit Lenders for
amounts payable under the Fees Rules and is calculated by the
Administrative Agent as being the average of the most recent rates
of charge supplied by the Lenders to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Rules but taking
into account any applicable discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
Schedule 1.01A
Page 2
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5% will be included in the formula as 5
and not as 0.05). A negative result obtained by subtracting D from B shall
be taken as zero. The resulting figures shall be rounded to four decimal
places.
7. If requested by the Administrative Agent or the Company, each
Multicurrency Revolving Credit Lender with a Lending Office in the United
Kingdom or a Participating Member State shall, as soon as practicable
after publication by the Financial Services Authority, supply to the
Administrative Agent and the Company, the rate of charge payable by such
Lender to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by such Lender as being the average of the
Fee Tariffs applicable to such Lender for that financial year) and
expressed in pounds per (pound)1,000,000 of the Tariff Base of such
Lender.
8. Each Multicurrency Revolving Credit Lender shall supply any information
required by the Administrative Agent for the purpose of calculating its
Additional Cost Rate. In particular, but without limitation, each
Multicurrency Revolving Credit Lender shall supply the following
information in writing on or prior to the date on which it becomes a
Multicurrency Revolving Credit Lender:
(a) the jurisdiction of the Lending Office out of which it is making
available its participation in the relevant Loan; and
(b) any other information that the Administrative Agent may reasonably
require for such purpose.
Each Multicurrency Revolving Credit Lender shall promptly notify the
Administrative Agent in writing of any change to the information provided by it
pursuant to this paragraph.
9. The percentages of each Multicurrency Revolving Credit Lender for the
purpose of A and C above and the rates of charge of each Multicurrency
Revolving Credit Lender for the purpose of E above shall be determined by
the Administrative Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Multicurrency Revolving Credit Lender notifies the Administrative Agent to
the contrary, each Multicurrency Revolving Credit Lender's obligations in
relation to cash ratio deposits and Special Deposits are the same as those
of a typical bank from its jurisdiction of incorporation with a Lending
Office in the same jurisdiction as its Lending Office.
10. The Administrative Agent shall have no liability to any Person if such
determination results in an Additional Cost Rate which over- or
under-compensates any Multicurrency Revolving Credit Lender and shall be
entitled to assume that the information provided by any Lender pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.
11. The Administrative Agent shall distribute the additional amounts received
as a result of the Mandatory Cost to the Multicurrency Revolving Credit
Lenders on the basis of the
Schedule 1.01A
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Additional Cost Rate for each Multicurrency Revolving Credit Lender based
on the information provided by each Multicurrency Revolving Credit Lender
pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Administrative Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Multicurrency Revolving Credit Lender shall, in the
absence of manifest error, be conclusive and binding on all parties
hereto.
13. The Administrative Agent may from time to time, after consultation with
the Company and the Multicurrency Revolving Credit Lenders, determine and
notify to all parties any amendments which are required to be made to this
Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
Schedule 1.01A
Page 4
