EXHIBIT 10.1
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Published Deal CUSIP Number: _______________ _
Published Revolver CUSIP Number ______________
Published Term CUSIP Number _________________
CREDIT AGREEMENT
Dated as of November 30, 2005
among
INFOCROSSING, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.......................................................1
1.02 Other Interpretive Provisions......................................28
1.03 Accounting Terms...................................................28
1.04 Rounding...........................................................29
1.05 Times of Day.......................................................29
1.06 Letter of Credit Amounts...........................................29
1.07 Covenant Acquisition Adjustments...................................29
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loan..........................................................30
2.02 Revolving Loans....................................................30
2.03 Borrowings, Conversions and Continuations of Revolving Loans;
Conversions and Continuations of Segments of the Term Loan.........31
2.04 Letters of Credit..................................................32
2.05 Swing Line Loans...................................................40
2.06 Prepayments........................................................43
2.07 Termination or Reduction of Commitments............................47
2.08 Repayment of Loans.................................................47
2.09 Interest...........................................................48
2.10 Fees...............................................................49
2.11 Computation of Interest and Fees...................................49
2.12 Evidence of Debt...................................................50
2.13 Payments Generally; Administrative Agent's Clawback................50
2.14 Sharing of Payments by Lenders.....................................52
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes..............................................................53
3.02 Illegality.........................................................55
3.03 Inability to Determine Rates.......................................55
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.................56
3.05 Compensation for Losses............................................57
3.06 Mitigation Obligations; Replacement of Lenders.....................58
3.07 Survival...........................................................58
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.............................58
4.02 Conditions to all Credit Extensions................................61
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws...........62
5.02 Authorization; No Contravention....................................62
5.03 Governmental Authorization; Other Consents.........................63
5.04 Binding Effect.....................................................63
5.05 Financial Statements; No Material Adverse Effect; No
Internal Control Event.............................................63
5.06 Litigation.........................................................64
5.07 No Default.........................................................64
5.08 Ownership of Property; Liens.......................................64
5.09 Insurance..........................................................65
5.10 Taxes..............................................................65
5.11 ERISA Compliance...................................................65
5.12 Subsidiaries; Equity Interests.....................................66
5.13 Margin Regulations; Investment Company Act;
Public Utility Holding Company Act.................................66
5.14 Disclosure.........................................................66
5.15 Compliance with Laws...............................................66
5.16 Intellectual Property; Licenses, Etc...............................66
5.17 Purchase Representations...........................................67
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements...............................................67
6.02 Certificates; Other Information....................................68
6.03 Notices............................................................70
6.04 Payment of Obligations.............................................70
6.05 Preservation of Existence, Etc.....................................71
6.06 Maintenance of Properties..........................................71
6.07 Maintenance of Insurance...........................................71
6.08 Compliance with Laws...............................................71
6.09 Books and Records..................................................71
6.10 Inspection Rights..................................................71
6.11 Use of Proceeds....................................................72
6.12 New Subsidiaries, Pledgors and Real Property.......................72
6.13 Further Assurances.................................................74
6.14 Internal Control Events............................................74
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Liens..............................................................75
7.02 Investments........................................................76
7.03 Indebtedness.......................................................76
7.04 Fundamental Changes................................................78
7.05 Dispositions.......................................................78
7.06 Restricted Payments................................................79
7.07 Change in Nature of Business.......................................80
7.08 Transactions with Affiliates.......................................80
7.09 Burdensome Agreements..............................................80
7.10 Use of Proceeds....................................................81
7.11 Financial Covenants................................................81
7.12 Capital Expenditures...............................................82
7.13 Amendments of Organization Documents and
Convertible Notes Indenture Documents..............................82
7.14 Accounting Changes.................................................82
7.15 Prepayments, etc. of Certain Indebtedness..........................82
7.16 Acquisitions.......................................................83
7.17 Subsidiaries.......................................................83
7.18 Sale-Leaseback Transactions........................................83
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default..................................................84
8.02 Remedies Upon Event of Default.....................................86
8.03 Application of Funds...............................................86
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority..........................................87
9.02 Rights as a Lender.................................................87
9.03 Exculpatory Provisions.............................................88
9.04 Reliance by Administrative Agent...................................89
9.05 Delegation of Duties...............................................89
9.06 Resignation of Administrative Agent................................89
9.07 Non-Reliance on Administrative Agent and Other Lenders.............90
9.08 No Other Duties, Etc...............................................90
9.09 Administrative Agent May File Proofs of Claim......................90
9.10 Collateral and Guaranty Matters....................................91
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc....................................................92
10.02 Notices; Effectiveness; Electronic Communication...................93
10.03 No Waiver; Cumulative Remedies.....................................95
10.04 Expenses; Indemnity; Damage Waiver.................................95
10.05 Payments Set Aside.................................................97
10.06 Successors and Assigns.............................................98
10.07 Treatment of Certain Information; Confidentiality.................102
10.08 Right of Setoff...................................................103
10.09 Interest Rate Limitation..........................................103
10.10 Counterparts; Integration; Effectiveness..........................103
10.11 Survival of Representations and Warranties........................103
10.12 Severability......................................................104
10.13 Replacement of Lenders............................................104
10.14 Governing Law; Jurisdiction; Etc..................................105
10.15 Waiver of Jury Trial..............................................106
10.16 USA PATRIOT Act Notice............................................106
SIGNATURES.................................................................S-1
SCHEDULES
2.01 Commitments and Applicable Percentages
4.01 Good Standing and Foreign Qualification Jurisdictions
5.05 Supplement to Interim Financial Statements
5.12 Subsidiaries; Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
FORM OF
A-1 Revolving Loan Notice
A-2 Term Loan Interest Rate Selection Notice
B Swing Line Loan Notice
C-1 Term Loan Note
C-2 Revolving Loan Note
C-3 Swing Line Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G-1 ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP Opinion
G-2 Georgia Local Counsel Opinion
H Security Agreement
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of November 30,
2005, among INFOCROSSING, INC., a Delaware corporation (the "Borrower"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquired Company" means (i)Structure, LLC, a Delaware limited
liability company.
"Acquisition" means the acquisition of (i) a controlling equity or
other ownership interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a controlling
interest at the time it becomes exercisable by the holder thereof), whether by
purchase of such equity or other ownership interest or upon exercise of an
option or warrant for, or conversion of securities into, such equity or other
ownership interest, or (ii) assets of another Person which constitute all or
substantially all of the assets of such Person or of a line or lines of business
conducted by such Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower 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.
"Aggregate Commitments" means, as at the date of determination thereof,
the sum of (a) the Aggregate Revolving Credit Commitments at such date, plus (b)
the Outstanding Amount with respect to the Term Loan at such date.
"Aggregate Revolving Credit Commitments" means, as at the date of
determination thereof, the Revolving Credit Commitments of all the Revolving
Lenders at such date.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, with respect to the
Commitment Fee, the Term Loan, Revolving Loans, Swing Line Loans and Letter of
Credit Fees, the following percentages per annum, based upon the Consolidated
Senior Secured Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
APPLICABLE RATE
Eurodollar
Rate +
Consolidated ----------
Pricing Senior Secured Leverage Letters of Base Rate
Level Ratio Commitment Fee Credit +
------------- --------------------------- ----------------------- ------------------- --------------
1 <1.50:1 0.375% 2.25% 1.25%
2 >1.50:1 but <2.00:1 0.50% 2.50% 1.50%
3 >2.00:1 0.50% 3.00% 2.00%
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Senior Secured 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, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 3 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered; provided,
further, however, that if any Loan is accruing interest at the Default Rate,
then Pricing Level 3 shall apply to such Loan for so long as such Loan accrues
interest at the Default Rate. From the Closing Date to the Business Day
following the date the Compliance Certificate for the fiscal period ending
December 31, 2005 is delivered, Pricing ▇▇▇▇▇ ▇ shall apply.
"Applicable Revolving Credit Percentage" means, with respect to each
Revolving 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
Revolving Credit Commitment of such Revolving Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Credit Commitments
at such time; provided that if the commitment of each Revolving Lender to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or otherwise, then the
Applicable Revolving Credit Percentage of each Revolving Lender shall be
determined based on the Applicable Revolving Credit Percentage of such Revolving
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof. The initial Applicable
Revolving Credit Percentage of each Revolving Lender is set forth opposite the
name of such Revolving Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Revolving Lender becomes a party hereto, as
applicable.
"Applicable Term Loan Percentage" means, with respect to each Term Loan
Lender, the percentage (carried out to the ninth decimal place) of the principal
amount of the Term Loan funded by such Term Loan Lender as of the date of
measurement thereof, after giving effect to any assignments made pursuant to
Section 10.07 on or prior to such date of measurement. The Applicable Term Loan
Percentage of each Term Loan Lender as of the Closing Date is set forth opposite
the name of such Term Loan Lender on Schedule 2.01.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"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 entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Acquired Company Financial Statements" means the audited
consolidated balance sheet of the Acquired Company and its Subsidiaries for the
fiscal year ended December 31, 2004, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year
of the Acquired Company and its Subsidiaries, including the notes thereto.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of
termination of the Aggregate Revolving Credit Commitments pursuant to Section
2.07, and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Base Rate Revolving Loan" means a Revolving Loan (including a Segment)
that is a Base Rate Loan.
"Base Rate Segment" means a Segment bearing interest or to bear
interest at the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means any of (i) the advance of the Term Loan pursuant to
Section 2.01, (ii) a Revolving Borrowing, or (iii) a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries on a consolidated basis, for any period, expenditures or costs for
fixed or capital assets made by the Borrower and its Subsidiaries during such
period which in accordance with GAAP applied on a consistent basis are
characterized as capital expenditures, and in any event "Capital Expenditures"
shall include any capitalized software development costs.
"Cash Collateralize" has the meaning specified in Section 2.04(g).
"Cash Equivalents" means any of the following types of property, to the
extent owned by the Borrower or any of its Subsidiaries free and clear of all
Liens (other than Liens created under the Security Instruments): (a) cash
denominated in Dollars; (b) readily marketable direct obligations of the
government of the United States or any agency or instrumentality thereof, or
obligations the timely payment of principal and interest on which are fully and
unconditionally guaranteed by the government of the United States or any state
or municipality thereof, in each case so long as such obligation has one of the
two highest ratings obtainable from either S&P or ▇▇▇▇▇'▇; (c) commercial paper
rated at least P-1 (or the then equivalent grade) by ▇▇▇▇▇'▇ and A-1 (or the
then equivalent grade) by S&P and in each case maturing within one year after
date of acquisition; (d) insured certificates of deposit or bankers' acceptances
of, or time deposits with any Lender or with any commercial bank that (i) is a
member of the Federal Reserve System, (ii) issues (or the parent of which
issues) commercial paper rated as described in the first portion of clause (c)
above (without regard to the proviso), (iii) is organized under the laws of the
United States or of any state thereof and (iv) has combined capital and surplus
of at least $500,000,000; (e) readily marketable general obligations of any
corporation organized under the laws of any state of the United States of
America, payable in the United States of America, expressed to mature not later
than twelve months following the date of issuance thereof and rated A or better
by S&P or A2 or better by ▇▇▇▇▇'▇; and (f) readily marketable shares of
investment companies or money market funds that, in each case, invest solely in
securities of the type described in clauses (a) through (e) above.
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 35% or more of the
equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right);
(b) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
the Borrower, or control over the equity securities of the Borrower
entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such Person or group has the
right to acquire pursuant to any option right) representing 35% or more
of the combined voting power of such securities.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Closing Date Material Adverse Effect" means (a) any change or
development that, individually or in the aggregate, has had an effect that is or
would reasonably be expected to be materially adverse to the business, condition
(financial or other) or results of operations of the Acquired Company taken as a
whole, except in each case for (i) any such effects directly resulting from the
Purchase Agreement or the transactions contemplated thereby or the announcement
thereof, (ii) any occurrence or condition affecting the Acquired Company's
industry generally, and (iii) any changes in general economic, regulatory or
political conditions; (b) a material impairment of the ability of any Loan Party
to perform its obligations under any Loan Document to which it is a party; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, collectively, all personal and real property of the
Borrower, any Subsidiary or any other Person in which the Administrative Agent
or any Lender is granted a Lien under any Security Instrument as security for
all or any portion of the Obligations or any other obligation arising under any
Loan Document.
"Commitment Fee" has the meaning specified in Section 2.10(a).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Current Assets" means, with respect to the Borrower and
its Subsidiaries on a consolidated basis, all assets (other than cash and cash
equivalents) that are expected to be realized in cash, sold in the ordinary
course of business, or consumed within one year or which would be classified as
current assets.
"Consolidated Current Liabilities" means, with respect to the Borrower
and its Subsidiaries on a consolidated basis, all liabilities that by their
terms are payable within one year, but excluding in all cases Indebtedness of
the Borrower and its Subsidiaries.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (without duplication) (a) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest
Charges for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such
period, (iii) depreciation and amortization expense and (iv) other non-recurring
expenses of the Borrower and its Subsidiaries reducing such Consolidated Net
Income which do not represent a cash item in such period or any future period
and minus (without duplication) (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state, local and foreign
income tax credits of the Borrower and its Subsidiaries for such period and (ii)
all non-cash items increasing Consolidated Net Income for such period.
"Consolidated EBITDAR" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated EBITDA for
such period plus (without duplication) Consolidated Rental Payments made during
such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDAR for the period of four
fiscal quarters most recently ended minus taxes paid during such period to (b)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to the Borrower and
its Subsidiaries for any period ending on the date of computation thereof, the
sum of, without duplication, (a) Consolidated Interest Charges, (b) Consolidated
Rental Payments, (c) Restricted Payments and (d) payments of principal on
Indebtedness of the Borrower and its Subsidiaries scheduled to be made during
the next ensuing period of four fiscal quarters of the Borrower beginning on the
day after the date of measurement thereof, all determined on a consolidated
basis in accordance with GAAP (other than to the extent GAAP would not include
certain items that are included in the definition of "Indebtedness" herein, in
which case such payments of Indebtedness are nevertheless included herein);
provided that for the fiscal quarters of the Borrower ending December 31, 2005,
March 31, 2006 and June 30, 2006, the Consolidated Interest Charges used in
determining the Consolidated Fixed Charges shall be, respectively (x)
Consolidated Interest Charges for the one-quarter period ending December 31,
2005 multiplied by 4, (y) Consolidated Interest Charges for the two-quarter
period ending March 31, 2006 multiplied by 2 and (z) Consolidated Interest
Charges for the three-quarter period ending June 30, 2006 multiplied by 4/3.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum, without duplication, of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than the Borrower or any Subsidiary, and (g)
all Indebtedness of the types referred to in clauses (a) through (f) above of
any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly
made non-recourse to the Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all cash interest,
premium payments, debt discount, fees, charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets (other than trade accounts payable), in each case to the extent treated
as interest in accordance with GAAP, (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP and (c) the amount of
payments in respect of Synthetic Lease Obligations that are in the nature of
interest (excluding, however, any such amounts included in the definition of
Consolidated Rental Payments).
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period.
"Consolidated Rental Payments" means, for any period, the aggregate
amount of rental payments made with respect to operating leases and real
property leases by the Borrower and its Subsidiaries on a consolidated basis
during such period.
"Consolidated Senior Secured Indebtedness" means, as of any date of
determination, all Consolidated Funded Indebtedness (including the Obligations
and excluding any portion of Subordinated Indebtedness) that, as of such date,
is secured by any Lien on any asset or property of the Borrower or any of its
Subsidiaries.
"Consolidated Senior Secured Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Senior Secured Indebtedness as of
such date to (b) Consolidated EBITDA for the period of four fiscal quarters most
recently ended.
"Consolidated Working Capital" means, as of any date on which the
amount thereof is to be determined, the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"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" 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.
"Convertible Notes" means those certain Convertible Senior Notes in the
aggregate principal amount of up to $72,000,000 issued by the Borrower pursuant
to the Convertible Notes Indenture, including all notes issued in exchange
therefor or substitution thereof.
"Convertible Notes Indenture" means that certain Indenture, dated as of
June 30, 2004, between ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, and
the Borrower, as the same may be amended, modified or supplemented from time to
time in accordance with the provisions thereof.
"Convertible Notes Indenture Documents" means the Convertible Notes
Indenture, the Convertible Notes and all related agreements, documents and
instruments evidencing or otherwise relating to the Borrower's obligations under
the Convertible Notes.
"Cost of Acquisition" means, with respect to any Acquisition, as at the
date of entering into any agreement therefor, the sum of the following (without
duplication): (i) the amount of any cash and fair market value of other property
given as consideration, (ii) the amount (determined by using the face amount or
the amount payable at maturity, whichever is greater) of any Indebtedness
incurred, assumed or acquired by the Borrower or any Subsidiary in connection
with such Acquisition, (iii) all additional purchase price amounts in the form
of earnouts and other contingent obligations that are to be paid in cash and
that should be recorded as acquisition costs on the financial statements of the
Borrower and its Subsidiaries in accordance with GAAP, (iv) all amounts paid in
cash in respect of covenants not to compete, and consulting agreements that
should be recorded as acquisition costs on financial statements of the Borrower
and its Subsidiaries in accordance with GAAP, and (v) out-of-pocket transaction
costs for the services and expenses of attorneys, accountants and other
consultants incurred in effecting such transaction, and other similar
transaction costs so incurred and capitalized as acquisition costs in accordance
with GAAP.
"Credit Extension" means each of the following: (a) a Borrowing and
(b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans, the Term Loan, participations in L/C Obligations
or participations in Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder, (b)
has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Direct Foreign Subsidiary" means a Subsidiary other than a Domestic
Subsidiary a majority of whose Voting Securities, or a majority of whose
Subsidiary Securities, are owned by the Borrower or a Domestic Subsidiary.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Permitted Sale-Leaseback Transaction and any
other sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of
any notes or accounts receivable or any rights and claims associated therewith.
"Dollars" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all 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 the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination; provided, however, that for purposes
of determining any mandatory prepayment required to be made pursuant to Section
2.06(b)(iv), the term "Equity Interests" shall not include the proceeds in the
approximate amount of $25,000,000 (before deduction of expenses, discounts and
commissions) received from the anticipated private issuance of publicly traded
shares of capital stock of the Borrower on or after the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower 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 the Borrower or any ERISA
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 due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan (including a Segment) that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Segment" means a Segment bearing interest or to bear
interest at the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Cash Flow" means, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any fiscal year, the following:
(a) Consolidated EBITDA for such period (but adjusted to
include the effect of cash losses or gains added to or deducted from
Consolidated Net Income to calculate Consolidated EBITDA pursuant to
the definition thereof),
minus
(b) the sum (without duplication) of (i) the change in
Consolidated Working Capital as at the end of such fiscal year; plus
(ii) Capital Expenditures paid in cash during such period or for which
a contract to pay in cash was put in place during such period and such
cash was actually paid before the date the Excess Cash Flow mandatory
prepayment is required to be made pursuant to Section 2.06(b)(ii) (and
excluding any Capital Expenditures paid in cash during such period but
included in this calculation in a prior period as a result of the
application of this provision); plus (iii) Consolidated Interest
Charges paid in cash for such period; plus (iv) taxes paid in cash for
such period and added in the calculation of Consolidated EBITDA
pursuant to the definition thereof; plus (v) the aggregate amount of
all scheduled payments of Consolidated Funded Indebtedness made during
such period; plus (vi) the aggregate amount of any optional prepayments
of the Term Loan made by the Borrower pursuant to Section 2.06(a)
hereof during such period; plus (vii) the aggregate amount of any
required prepayments of the Term Loan made by the Borrower pursuant to
Section 2.06(b) hereof during such period; plus (viii) the aggregate
amount of all Restricted Payments made pursuant to Section 7.06(e);
plus (ix) deferred costs and deposits paid in cash during such period
in the ordinary course of business in connection with the acquisition
of customers.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized, in which it is doing business other than solely be reason of the Loan
Documents, or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Extraordinary Receipt" means any cash (net of fees, expenses and
taxes) received by or paid to or for the account of any Person not in the
ordinary course of business with respect to pension plan reversions, proceeds of
insurance (other than proceeds of business interruption insurance to the extent
such proceeds constitute compensation for lost earnings), and condemnation
awards (and payments in lieu thereof).
"Facility Termination Date" means the date as of which all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Term Loan Facility by final
payment in full of all Outstanding Amounts, together with all accrued and unpaid
interest and fees thereon, other than (i) the undrawn portion of Letters of
Credit and (ii) all fees relating to any Letters of Credit accruing after such
date (which fees shall be payable solely for the account of the L/C Issuer and
shall be computed (based on interest rates and the Applicable Rate then in
effect) on such undrawn amounts to the respective expiry dates of the Letters of
Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative Agent
and the L/C Issuer shall have been made, (b) the Aggregate Revolving Credit
Commitments, if any, shall have terminated or expired, (c) the obligations and
liabilities of the Borrower and each other Loan Party under all Related Credit
Arrangements shall have been fully, finally and irrevocably paid and satisfied
in full and the Related Credit Arrangements shall have expired or been
terminated, or other arrangements satisfactory to the counterparties shall have
been made with respect thereto, and (d) each Guarantor shall have fully, finally
and irrevocably paid and satisfied in full its respective obligations and
liabilities arising under the Loan Documents (except for future obligations
consisting of continuing indemnities and other contingent Obligations that may
be owing to the Administrative Agent or any of its Related Parties or any Lender
pursuant to the Loan Documents and expressly survive termination of this
Agreement).
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated October 24, 2005, among
the Borrower, the Administrative Agent and the Arranger, delivered in connection
with the commitment letter of even date therewith.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the 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.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"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 the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Granting Lender" has the meaning specified in Section 10.06(h).
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively or individually as the context may
indicate, each of the Domestic Subsidiaries of the Borrower at the Closing Date
(after giving effect to the Purchase) and each other Person who becomes a party
to the Guaranty (including by execution of a Guaranty Joinder Agreement).
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit F, as
supplemented from time to time by the execution and delivery of Guaranty Joinder
Agreements pursuant to Section 6.12 or otherwise.
"Guaranty Joinder Agreement" means each Guaranty Joinder Agreement,
substantially in the form thereof attached to the Guaranty, executed and
delivered by a Guarantor to the Administrative Agent pursuant to Section 6.12 or
otherwise.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business and, in each case, not past
due for more than 90 days after the date on which such trade account
payable was created);
(e) indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each calendar quarter of the Borrower and the Revolving Credit Maturity
Date or the Term Loan Maturity Date, as applicable; provided further that
interest accruing at the Default Rate shall be payable from time to time upon
demand of the Administrative Agent.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Revolving Loan Notice
or Term Loan Interest Rate Selection Notice, as applicable; provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond (a) with respect
to Revolving Loans, the Revolving Credit Maturity Date and (b) with
respect to the Term Loan, the Term Loan Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) any Acquisition. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.16.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Joinder Agreements" means, collectively, the Guaranty Joinder
Agreements, the Pledge Joinder Agreements and the Security Joinder Agreements.
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
of the L/C Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Revolving Credit Maturity Date then in effect (or, if such day is
not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to $5,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Revolving Credit Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan, a Term Loan or a Swing Line Loan,
including any Segment.
"Loan Documents" means this Agreement, each Note, each Guaranty
(including each Guaranty Joinder Agreement), each Security Instrument, each
Revolving Loan Notice, each Term Loan Interest Rate Selection Notice, each
Issuer Document and each Compliance Certificate, and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor of any
Lender or the Administrative Agent in connection with the Loans made and
transactions contemplated by this Agreement.
"Loan Parties" means, collectively, the Borrower, each Guarantor and
each other Person providing Collateral pursuant to any Security Instrument.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of any Loan Party to perform its obligations under any Loan Document
to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means:
(a) with respect to any Disposition by the Borrower or any
Subsidiary, or any Extraordinary Receipts received by or paid to the
account of such Person, the excess, if any, of (i) the sum of cash and
cash equivalents received in connection with such transaction
(including any cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and
when so received) over (ii) the sum of (A) the principal amount of any
Indebtedness that is secured by such asset and that is required to be
repaid in connection with such transaction (other than Indebtedness
under the Loan Documents), (B) the out-of-pocket expenses incurred by
the Borrower or any Subsidiary in connection with such transaction, and
(C) taxes paid or reasonably estimated to be payable by the Borrower or
any Subsidiary in connection with the relevant transaction;
(b) with respect to the public or private issuance of any
Indebtedness by the Borrower or any Subsidiary, the excess of (i) the
sum of the cash and cash equivalents received in connection with such
issuance over (ii) the sum of (A) the underwriting discounts and
commissions and other out-of-pocket expenses incurred by the Borrower
or such Subsidiary in connection with such issuance, and (B) all taxes
required to be paid or accrued or reasonably estimated to be payable as
a consequence of such issuance; and
(c) with respect to the sale or issuance of any Equity
Interest by the Borrower or any Subsidiary, the excess of (i) the sum
of the cash and cash equivalents received in connection with such sale
or issuance over (ii) the sum of (A) the underwriting discounts and
commissions and other out-of-pocket expenses incurred by the Borrower
or such Subsidiary in connection with such issuance or sale, and (B)
all taxes required to be paid or accrued or reasonably estimated to be
payable as a consequence of such issuance or sale.
"Notes" means, collectively, the Revolving Loan Notes, the Term Loan
Notes and the Swing Line Note.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, or arising
under any Related Credit Arrangement, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, 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" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to the Term Loan on any
date, the aggregate outstanding principal amount thereof after giving effect to
the Borrowing of such Term Loan and any prepayments or repayments of such Term
Loan (or any Segment) occurring on such date, (ii) with respect to Revolving
Loans and Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any Borrowings and prepayments or
repayments of Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date; and (iii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.06(d).
"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 Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Sale-Leaseback Transactions" means (i) the sale leaseback of
the real property located in Omaha, Nebraska currently being occupied by the
Borrower and its Subsidiaries (after giving effect to the Purchase) and certain
equipment related thereto and (ii) the sale-leaseback of the real property
located in Tempe, Arizona currently being occupied by the Borrower and its
Subsidiaries (after giving effect to the Purchase) and certain equipment related
thereto.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreement" means that certain Securities Pledge Agreement dated
as of the date hereof among the Borrower, certain Guarantors and the
Administrative Agent, as supplemented from time to time by the execution and
delivery of Pledge Joinder Agreements pursuant to Section 6.12, as the same may
be otherwise supplemented (including by Pledge Agreement Supplement).
"Pledge Agreement Supplement" means each Pledge Agreement Supplement in
the form affixed as an exhibit to the Pledge Agreement.
"Pledged Interests" means (i) the Subsidiary Securities of each of the
existing or hereafter organized or acquired Domestic Subsidiaries of the
Borrower; and (ii) 65% of the Voting Securities (or if the relevant Person shall
own less than 65% of such Voting Securities, then 100% of the Voting Securities
owned by such Person) and 100% of the nonvoting Subsidiary Securities of each of
the existing or hereafter organized or acquired Direct Foreign Subsidiaries of
the Borrower.
"Pledge Joinder Agreement" means each Pledge Joinder Agreement,
substantially in the form thereof attached to the Pledge Agreement, executed and
delivered by a Guarantor to the Administrative Agent pursuant to Section 6.12.
"Platform" has the meaning specified in Section 6.02.
"Purchase" means the acquisition by the Borrower of all of the issued
and outstanding membership interests of the Acquired Company.
"Purchase Agreement" means that certain Purchase Agreement, dated as of
October 24, 2005 by and between the Borrower and Level 3 Financing Inc.
(including all schedules and exhibits thereto).
"Purchase Documents" means, individually or collectively as the context
may indicate, (a) the Purchase Agreement and (b) each other material agreement,
instrument and document relating to the Purchase.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.
"Related Credit Arrangements" means, collectively, Related Swap
Contracts and Related Treasury Management Arrangements.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Related Swap Contract" means all Swap Contracts that are entered into
or maintained with a Lender or Affiliate of a Lender that are not prohibited by
the express terms of the Loan Documents.
"Related Treasury Management Arrangements" means all arrangements for
the delivery of treasury management services to or for the benefit of any Loan
Party which are entered into or maintained with a Lender or Affiliate of a
Lender and which are not prohibited by the express terms of the Loan Documents.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Loans, a Revolving Loan Notice, (b) with
respect to a conversion or continuation of Segments, a Term Loan Interest Rate
Selection Notice, (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 Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 9.02, Lenders holding in the
aggregate more than 50% of the 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); provided that any 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; and
provided further that at any time there is more than one Lender (who is not a
Defaulting Lender), at least two Lenders shall be required to constitute the
"Required Lenders."
"Required Revolving Lenders" means, as of any date of determination,
Revolving Lenders having more than 50% of the Aggregate Revolving Credit
Commitments and Outstanding Amount (including risk participations in Letters of
Credit and Swing Line Loans) under the Revolving Credit Facility; provided that
the Revolving Credit Commitment of, and the portion of the Outstanding Amount
(including risk participations in Letters of Credit and Swing Line Loans) under
the Revolving Credit Facility held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving
Lenders.
"Required Term Loan Lenders" means, as of any date of determination,
Term Loan Lenders having more than 50% of the Outstanding Amount of the Term
Loan; provided that the Outstanding Amount of the Term Loan held or deemed held
by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term Loan Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, secretary, treasurer or assistant treasurer of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
of the Borrower or any Subsidiary, or on account of any return of capital to the
Borrower's stockholders, partners or members (or the equivalent Person thereof),
or the issuance of any Equity Interest in any Subsidiary to any Person other
than the Borrower.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period, made by each of the Revolving Lenders pursuant
to Section 2.02.
"Revolving Credit Commitment" means, as to each Revolving Lender, its
obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.02,
(b) purchase participations in L/C Obligations, and (c) purchase participations
in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Revolving Lender's
name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Credit Facility" means the facility described in Section
2.02 providing for Revolving Loans to the Borrower by the Revolving Lenders in
the maximum aggregate principal amount at any time outstanding of $15,000,000,
as adjusted from time to time pursuant to the terms of this Agreement.
"Revolving Credit Maturity Date" means April 14, 2009.
"Revolving Lender" means each Lender that has a Revolving Credit
Commitment or, following termination of the Revolving Credit Commitments, has
Revolving Loans outstanding or participations in an outstanding Letter of Credit
or Swing Line Loan.
"Revolving Loan" means a Base Rate Loan or a Eurodollar Rate Loan made
to the Borrower by a Revolving Lender in accordance with its Applicable
Revolving Credit Percentage pursuant to Section 2.02, except as otherwise
provided herein.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Revolving Lender evidencing Revolving Loans made by such Revolving
Lender, substantially in the form of Exhibit C-2.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing,
(b) a conversion of Revolving Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.03(a), which, if in
writing, shall be substantially in the form of Exhibit A-1.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" means, collectively, with respect to each of the
Security Instruments, the Administrative Agent, the Lenders and such other
Persons for whose benefit the Lien thereunder is conferred, as therein provided.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Security Agreement" means the Security Agreement dated as of the date
hereof by the Borrower and one or more of the Guarantors to the Administrative
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit H, as supplemented from time to time by the execution and delivery of
Security Joinder Agreements pursuant to Section 6.12.
"Security Instruments" means, collectively or individually as the
context may indicate, the Security Agreement (including the Security Joinder
Agreements), the Pledge Agreement (including the Pledge Joinder Agreements and
the Pledge Agreement Supplements) and all other agreements (including control
agreements), instruments and other documents, whether now existing or hereafter
in effect, pursuant to which the Borrower or any Subsidiary or other Person
shall grant or convey to the Administrative Agent or the Lenders a Lien in, or
any other Person shall acknowledge any such Lien in, property as security for
all or any portion of the Obligations or any other obligation under any Loan
Document, as any of them may be reinstated from time to time in accordance with
the terms hereof and thereof.
"Security Joinder Agreement" means each Security Joinder Agreement,
substantially in the form thereof attached to the Security Agreement, executed
and delivered by a Guarantor or any other Person to the Administrative Agent
pursuant to Section 6.12.
"Segment" means a portion of the Term Loan (or all thereof) with
respect to which a particular interest rate is (or is proposed to be)
applicable.
"Solvent" means, when used with respect to any Person, that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, as reflected on such Person's financial
statements", as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets of such
Person will, as of such date, be sufficient to pay the liability of such Person
on its debts as such debts become absolute and matured and (c) such Person will
not have, as of such date, an unreasonably small amount of capital with which to
conduct its business. For purposes of this definition, (i) "debt" means
liability on a "claim", (ii) "claim" means any (x) right to payment, whether or
not such a right is matured, unmatured, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not matured or unmatured, or
secured or unsecured and (iii) the "present fair saleable value of assets" shall
include goodwill and other intangible assets.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"SPC" has the meaning specified in Section 10.06(h).
"Subordinated Indebtedness" means any Indebtedness of the Borrower or
its Subsidiaries that is permitted hereunder and is subordinated to the
Obligations in a manner acceptable to Administrative Agent and the Required
Lenders in their sole discretion.
"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 Borrower.
"Subsidiary Securities" means the Equity Interests issued by or equity
participations in any Subsidiary, whether or not constituting a "security" under
Article 8 of the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.05.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Note" means a promissory note made by the Borrower in favor
of the Swing Line Lender evidencing Swing Line Loans made by the Swing Line
Lender, substantially in the form of Exhibit C-3.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Aggregate Revolving Credit Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Revolving Credit
Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Loan" means the loans made pursuant to the Term Loan Facility in
accordance with Section 2.01.
"Term Loan Facility" means the facility described in Section 2.01
providing for an advance of the Term Loan to the Borrower by the Term Loan
Lenders in the original principal amount of $55,000,000, subject to adjustments
as herein provided.
"Term Loan Lender" means each Lender that has a portion of the Term
Loan outstanding under the Term Loan Facility.
"Term Loan Maturity Date" means (a) April 14, 2009, or (b) such earlier
date upon which the Outstanding Amount under the Term Loan, including all
accrued and unpaid interest, is paid in full in accordance with the terms
hereof.
"Term Loan Note" means a promissory note made by the Borrower in favor
of a Term Loan Lender evidencing the portion of the Term Loan made by such Term
Loan Lender, substantially in the form of Exhibit C-1.
"Term Loan Interest Rate Selection Notice" means the written notice
delivered by a Responsible Officer of the Borrower in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Segment or the
conversion of any Eurodollar Rate Segment into a Base Rate Segment or the
conversion of any Base Rate Segment into a Eurodollar Rate Segment, which, if in
writing, shall be substantially in the form of Exhibit A-2.
"Threshold Amount" means $2,500,000.
"Total Outstandings" means the aggregate Outstanding Amount of (a) the
Term Loan, (b) the Revolving Loans, (c) L/C Obligations and (d) Swing Line
Loans.
"Total Revolving Outstandings" means the aggregate Outstanding Amount
of all Revolving Loans, Swing Line Loans and L/C Obligations.
"Transactions" means, individually or collectively as the context may
indicate, (a) the Purchase and (b) the entering into and funding of this
Agreement.
"Type" means with respect to (i) a Revolving Loan, its character as a
Base Rate Loan or a Eurodollar Rate Loan, and (ii) a Segment, its character as a
Base Rate Segment or a Eurodollar Rate Segment.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
"Voting Securities" means Equity Interests issued by any other Person,
the holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar functions)
of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.
1.02 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 definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent and the Borrower shall negotiate in good faith to amend
such ratio or requirement 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 or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 ROUNDING. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to times of
day shall be references to Eastern time (daylight or standard, as applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the amount of
a Letter of Credit at any time shall be deemed to be the stated amount of such
Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the
maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.
1.07 COVENANT ACQUISITION ADJUSTMENTS. Except as may be otherwise expressly
provided herein, with respect to any calculation of the Applicable Rate or of
the financial covenants pursuant to Section 7.11 that includes a period (or a
portion of a period) prior to the date of the consummation of any acquisition of
any Person or substantially all the assets of any Person (including the Purchase
permitted hereunder), references to "the Borrower and its Subsidiaries" shall
include each acquired Person, and all such acquired assets and liabilities from
any Person on a historical pro forma basis, as if the acquisition had been
consummated on the first day of any such period of measurement.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 TERM LOAN.
(a) Subject to the terms and conditions of this Agreement, each Term Loan Lender
severally agrees to make an advance of its Applicable Term Loan Percentage of
the Term Loan to the Borrower on the Closing Date; provided, however, that to
the extent that the Administrative Agent shall not have received an advance from
any Term Loan Lender of its Applicable Term Loan Percentage of the Term Loan as
of the time of the closing of the Transactions, then, subject to the terms and
conditions of this Agreement, the Administrative Agent shall advance such
amounts so not received from such Term Loan Lender, without prejudice to the
rights of Bank of America or the Arranger under the Fee Letter. The principal
amount of each Segment of the Term Loan outstanding hereunder from time to time
shall bear interest and the Term Loan shall be repayable as herein provided. No
amount of the Term Loan repaid or prepaid by the Borrower may be reborrowed
hereunder, and no subsequent Borrowing under the Term Loan Facility shall be
allowed after the initial such advance of the Term Loan on the Closing Date.
(b) Not later than 1:00 P.M. on the Closing Date each Term Loan Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of its Applicable Term Loan Percentage of the Term Loan available by wire
transfer to the Administrative Agent. Such wire transfer shall be directed to
the Administrative Agent at the Administrative Agent's Office and shall be in
the form of same day funds in Dollars. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, including the satisfaction of all applicable conditions in Sections
4.01 and 4.02, be made available to the Borrower by delivery of the proceeds
thereof as shall be directed by a Responsible Officer of the Borrower and
reasonably acceptable to the Administrative Agent. The initial Borrowing of the
Term Loan shall be a single Base Rate Segment, subject to conversion after the
Closing Date in accordance with a Term Loan Interest Rate Selection Notice
delivered on the Closing Date pursuant to Section 4.01(a) (or, if no Term Loan
Interest Rate Selection Notice is so delivered on the Closing Date, thereafter
in accordance with Section 2.03).
2.02 REVOLVING LOANS. Subject to the terms and conditions set forth herein, each
Revolving Lender severally agrees to make Revolving Loans to the Borrower from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Revolving Lender's Revolving Credit Commitment; provided, however, that after
giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Credit Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender,
plus such Revolving Lender's Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations, plus such Revolving Lender's
Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Revolving Lender's Revolving Credit Commitment.
Within the limits of each Revolving Lender's Revolving Credit Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.02, prepay under Section 2.06, and reborrow under this Section
2.02. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
2.03 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF REVOLVING LOANS;
CONVERSIONS AND CONTINUATIONS OF SEGMENTS OF THE TERM LOAN.
(a) Each Revolving Borrowing, each conversion of Revolving Loans or Segments of
the Term Loan from one Type to the other, and each continuation of Eurodollar
Rate Loans shall be made upon the Borrower's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of
Base Rate Revolving Loans. Each telephonic notice by the Borrower pursuant to
this Section 2.03(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Revolving Loan Notice or Term Loan Interest
Rate Selection Notice, appropriately completed and signed by a Responsible
Officer of the Borrower (unless any such Revolving Loan Notice is being
delivered by a Swing Line Lender pursuant to Section 2.05(c) or by the
Administrative Agent on behalf of the L/C Issuer pursuant to Section
2.04(c)(i)); provided that the lack of such prompt confirmation shall not affect
the conclusiveness or binding effect of such telephonic notice. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Except as provided in Sections 2.04(c) and 2.05(c), each Borrowing of or
conversion to Base Rate Revolving Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each written
Revolving Loan Notice shall be substantially in the form of Exhibit A-1 attached
hereto and each written Term Loan Interest Rate Selection Notice shall be
substantially in the form of Exhibit A-2 attached hereto. Each Revolving Loan
Notice and Term Loan Interest Rate Selection Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Revolving
Borrowing (applicable to Revolving Loan Notices only), a conversion of Loans
from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Revolving Loans
or Segments to be borrowed, converted or continued, (iv) the Type of Loans or
Segments to be borrowed or to which existing Loans or Segments are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Revolving Loan in a
Revolving Loan Notice or Type of Segment in a Term Loan Interest Rate Selection
Notice, or if the Borrower fails to give a timely notice requesting a conversion
or continuation, then the applicable Revolving Loans and Segments of the Term
Loan shall, subject to the last sentence of this Section 2.03(a), be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice or Term Loan Interest Rate Selection Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall
promptly notify each Revolving Lender of the amount of its Applicable Revolving
Credit Percentage of the applicable Revolving Loans, and if no timely notice of
a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a
Revolving Borrowing, each Revolving Lender shall make the amount of its
Revolving Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent's Office not later than 1:00 p.m. on the
Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on the date the Revolving Loan
Notice with respect to such Revolving Borrowing is given by the Borrower, there
are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such
Revolving Borrowing, shall be applied, first, to the payment in full of any such
L/C Borrowings, second, to the payment in full of any such Swing Line Loans, and
third, shall be made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued
or converted only on the last day of an Interest Period for such Eurodollar Rate
Loan. During the existence of a Default, (i) no Revolving Loan may be requested
as, converted into or continued as a Eurodollar Rate Loan without the consent of
the Required Revolving Lenders, and (ii) no Segment of the Term Loan may be
converted into or continued as a Eurodollar Rate Segment without the consent of
the Required Term Loan Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
applicable Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all Revolving Borrowings, the making of the Term
Loan, all conversions of Revolving Loans and Segments of the Term Loan from one
Type to the other, and all continuations of Revolving Loans and Segments of the
Term Loan as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Revolving Loans and the Term Loan.
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower or its Subsidiaries, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the
Revolving Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (x) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Credit
Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Revolving Lender, plus such Revolving Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Revolving Lender's Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender's Revolving Credit Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter
of Credit Sublimit. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies
with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more
than twelve months after the date of issuance, unless the Required
Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after
the Letter of Credit Expiration Date, unless all the Revolving Lenders
have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than
$500,000;
(D) such Letter of Credit is to be denominated in a currency other than
Dollars;
(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender's obligations to fund under Section 2.04(c)
exists or any Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with
the Borrower or such Lender to eliminate the L/C Issuer's risk with
respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if (A) the L/C
Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if 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.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits
and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of Credit
as fully as if the term "Administrative Agent" as used in Article IX
included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than
11:00 a.m. at least two Business Days (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the Borrower
shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the
L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C
Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such
Letter of Credit Application from the Borrower and, if not, the L/C
Issuer will provide the Administrative Agent with a copy thereof.
Unless the L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower (or the
applicable Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer's usual
and customary business practices. Immediately upon the issuance of
each Letter of Credit, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Revolving Lender's Applicable Revolving
Credit Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to
a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the L/C Issuer will also deliver to the Borrower
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 Borrower and the Administrative Agent thereof. Not later
than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit (each such date, an "Honor Date"), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Revolving Lender of the Honor Date, the amount of
the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Revolving Lender's Applicable Revolving Credit Percentage
thereof. In such event, the Borrower shall be deemed to have requested
a Revolving Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.03 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a
Revolving Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.04(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Revolving Credit Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.04(c)(iii), each Revolving
Lender that so makes funds available shall be deemed to have made a
Base Rate Revolving Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced
by a Revolving Borrowing of Base Rate Revolving Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Revolving Lender's payment to
the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.04(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.04(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Revolving Lender's Applicable Revolving Credit Percentage of such
amount shall be solely for the account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.04(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other
right which such Revolving Lender may have against the L/C Issuer, the
Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender's obligation to make
Revolving Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Revolving Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid
by such Revolving Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(ii), the L/C
Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the greater of the Federal Funds Rate and
a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation. A certificate of the L/C
Issuer submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter
of Credit and has received from any Revolving Lender such Revolving
Lender's L/C Advance in respect of such payment in accordance with
Section 2.04(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to
such Revolving Lender its Applicable Revolving Credit Percentage
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Lender's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.04(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer
in its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable
Revolving Credit Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Revolving Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The
obligations of the Revolving Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Borrower 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 the Borrower or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by the L/C
Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Revolving Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Revolving Lenders or the Required
Revolving Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or assignee
of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.04(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer's willful misconduct or gross negligence or
the L/C Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the
L/C Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. "Cash Collateralize" means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Revolving Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the Revolving Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained
in blocked deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued, the rules of the ISP shall
apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage a
Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under
such Letter of Credit. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. Letter of Credit Fees shall be
(i) computed on a quarterly basis in arrears and (ii) 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 Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Revolving Lenders,
while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit, at the rate per annum specified in
the Fee Letter, computed on the daily amount available to be drawn under such
Letter of Credit and on a quarterly basis in arrears. Such fronting fee shall be
due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or
is for the account of, a Subsidiary, the Borrower shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter of
Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit
for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower's business derives substantial benefits from the businesses of such
Subsidiaries.
2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.05, to make loans (each such
loan, a "Swing Line Loan") to the Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not
to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Applicable Revolving Credit Percentage of the
Outstanding Amount of Revolving Loans and L/C Obligations of the
Revolving Lender acting as Swing Line Lender, may exceed the amount of
such Revolving Lender's Revolving Credit Commitment; provided, however,
that after giving effect to any Swing Line Loan, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Credit
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Revolving Lender, plus such Revolving Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Revolving Lender's Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Revolving Lender's Revolving Credit Commitment, and
provided, further, that the Borrower 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 Borrower may borrow under this Section 2.05, prepay under
Section 2.06, and reborrow under this Section 2.05. Each Swing Line
Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Revolving Lender's Applicable Revolving Credit
Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of
$100,000, 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 Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has also received such Swing
Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.05(a), or (B) that one or
more of the applicable conditions specified in Article IV is not then
satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing
Line Loan available to the Borrower at its office by crediting the
account of the Borrower on the books of the Swing Line Lender in
immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion
may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that
each Revolving Lender make a Base Rate Revolving Loan in an amount
equal to such Revolving Lender's Applicable Revolving Credit
Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be
deemed to be a Revolving Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.03, without regard to
the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Credit Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Revolving Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Revolving Lender shall
make an amount equal to its Applicable Revolving Credit Percentage of
the amount specified in such Revolving Loan Notice available to the
Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m. on the day specified in such Revolving Loan Notice,
whereupon, subject to Section 2.05(c)(ii), each Revolving Lender that
so makes funds available shall be deemed to have made a Base Rate
Revolving Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Revolving Borrowing in accordance with Section 2.05(c)(i), the request
for Base Rate Revolving Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Revolving Lenders fund its risk participation in the
relevant Swing Line Loan and each Revolving Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant
to Section 2.05(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Revolving Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to
be paid by such Revolving Lender pursuant to the foregoing provisions
of this Section 2.05(c) by the time specified in Section 2.05(c)(i),
the Swing Line Lender shall be entitled to recover from such Revolving
Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender
in accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.05(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender's obligation to make Revolving
Loans pursuant to this Section 2.05(c) is subject to the conditions
set forth in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Revolving Lender its Applicable Revolving
Credit Percentage of such payment (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such
Revolving Lender's risk participation was funded) in the same funds as
those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each
Revolving Lender shall pay to the Swing Line Lender its Applicable
Revolving Credit Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the
request of the Swing Line Lender. The obligations of the Revolving
Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Revolving Lender funds its Base Rate Revolving
Loan or risk participation pursuant to this Section 2.05 to refinance
such Revolving Lender's Applicable Revolving Credit Percentage of any
Swing Line Loan, interest in respect of such Applicable Revolving
Credit Percentage shall be solely for the account of the Swing Line
Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.06 PREPAYMENTS.
(a) Optional Prepayment.
(i) The Borrower may, upon notice to the Administrative Agent (it being
agreed that such notice may be conditioned upon the occurrence of a
change of control, refinancing, acquisition, disposition or similar
event, but subject to the payment of any amounts required pursuant to
Section 3.05 if any prepayment set forth in such notice is not made),
at any time or from time to time voluntarily prepay Revolving Loans in
whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate
Revolving Loans; and (ii) any prepayment of Revolving 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 Type(s) of Revolving Loans to be
prepaid. The Administrative Agent will promptly notify each Revolving
Lender of its receipt of each such notice, and of the amount of such
Revolving Lender's Applicable Revolving Credit Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Revolving Loans of the Revolving Lenders in
accordance with their respective Applicable Revolving Credit
Percentages.
(ii) In addition to the required repayment of principal of the Term Loan
set forth in Section 2.08(c), the Borrower may, upon irrevocable
notice to the Administrative Agent (it being agreed that such notice
may be conditioned upon the occurrence of a change of control,
refinancing, acquisition, disposition or similar event, but subject to
the payment of any amounts required pursuant to Section 3.05 if any
prepayment set forth in such notice is not made), voluntarily prepay
the Term Loan in whole or in part from time to time on any Business
Day, without penalty or premium; provided that (i) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (A)
three Business Days prior to any date of prepayment of Eurodollar Rate
Loans, and (B) on the date of prepayment of Base Rate Loans, (ii) any
prepayment of the Term Loan shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof (or in the entire
remaining principal balance of the Term Loan), and (iii) any such
prepayment will be applied among the Term Loan Lenders in accordance
with their respective Applicable Term Loan Percentages. Each such
notice shall specify the date and amount of such prepayment and the
Type(s) of Segment to be prepaid. A Responsible Officer of the
Borrower shall provide the Administrative Agent written confirmation
of each such telephonic notice but failure to provide such
confirmation shall not affect the validity of such telephonic notice.
The Administrative Agent will promptly notify each Term Loan Lender of
its receipt of each such notice, and such Term Loan Lender's pro rata
share of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts
required pursuant to Section 3.05. All prepayments of principal under
this Section 2.06(a)(ii) shall be applied pro rata across the
remaining installments of principal of the Term Loan pursuant to
Section 2.08(c).
(iii) The Borrower may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (ii) any such prepayment shall
be in a minimum principal amount of $100,000 (or the entire
Outstanding Amount of the Swing Line Loans). Each such notice shall
specify the date and amount of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on
the date specified therein.
(b) Mandatory Prepayment.
(i) If for any reason the Total Revolving Outstandings at any time exceed
the Aggregate Revolving Credit Commitments then in effect, the Borrower
shall immediately prepay Revolving Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.06(b)(i) unless after
the prepayment in full of the Revolving Loans the Total Revolving
Outstandings exceed the Aggregate Revolving Credit Commitments then in
effect.
(ii) Within five (5) Business Days after financial statements have been
delivered pursuant to Section 6.01(a) and the related Compliance
Certificate has been delivered pursuant to Section 6.02(b), the
Borrower shall prepay an aggregate principal amount of Loans equal to
50% of Excess Cash Flow for the fiscal year covered by such financial
statements.
(iii) If the Borrower or any of its Subsidiaries Disposes of any properties
or assets other than pursuant to a Disposition permitted by Section
7.05, the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of the amount of all the Net Cash Proceeds of such
Disposition promptly (but in any case within ten (10) Business Days)
after receipt thereof by the Borrower or such Subsidiary. The Borrower
shall provide the Administrative Agent not less than three (3)
Business Days' prior written notice (or one (1) Business Day's prior
written notice, in the case of prepayment of any Base Rate Loan) of
each such prepayment, which notice shall include a certificate of a
Responsible Officer of the Borrower setting forth in reasonable detail
the calculations utilized in computing the Net Cash Proceeds of such
Disposition. Notwithstanding the application of this Section
2.06(b)(iii) to any Disposition that is not otherwise permitted under
this Agreement, nothing in this Section 2.06(b)(iii) shall be deemed
to permit any Disposition not expressly permitted under this Agreement
or to constitute a waiver or cure of any Default or Event of Default
that arises as a result of a Disposition that is not permitted under
this Agreement.
(iv) Within ten (10) Business Days after each private or public issuance of
Equity Interests of the Borrower or any of its Subsidiaries, the
Borrower shall prepay an aggregate principal amount of Loans equal to
50% of all Net Cash Proceeds received therefrom; provided that no
prepayment shall be required for the first $100,000 in Net Cash
Proceeds in any year received from the exercise of options for Equity
Interests of the Borrower or any of its Subsidiaries. The Borrower
shall provide the Administrative Agent not less than three (3)
Business Days' prior written notice (or one (1) Business Day's prior
written notice, in the case of prepayment of any Base Rate Loan) of
each such prepayment, which notice shall include a certificate of a
Responsible Officer of the Borrower setting forth in reasonable detail
the calculations utilized in computing the Net Cash Proceeds of such
issuance. Notwithstanding the application of this Section 2.06(b)(iv)
to any issuance of Equity Interests that is not otherwise permitted
under this Agreement, nothing in this Section 2.06(b)(iv) shall be
deemed to permit any issuance of Equity Interests of the Borrower or
any Subsidiary not expressly permitted under this Agreement or to
constitute a waiver or cure of any Default or Event of Default that
arises as a result of the issuance of any such Equity Interests that
is not permitted under this Agreement.
(v) Within ten (10) Business Days after each private or public issuance or
incurrence of the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness permitted by Section 7.03), the
Borrower shall prepay an aggregate principal amount of Loans equal to
100% of all Net Cash Proceeds received therefrom. The Borrower shall
provide the Administrative Agent not less than three (3) Business
Days' prior written notice (or one (1) Business Day's prior written
notice, in the case of prepayment of any Base Rate Loan) of each such
prepayment, which notice shall include a certificate of a Responsible
Officer of the Borrower setting forth in reasonable detail the
calculations utilized in computing the Net Cash Proceeds of such
issuance or incurrence. Notwithstanding the application of this
Section 2.06(b)(v) to any issuance of Indebtedness that is not
otherwise permitted under this Agreement, nothing in this Section
2.06(b)(v) shall be deemed to permit any Indebtedness not
expressly permitted under this Agreement or to constitute a
waiver or cure of any Default or Event of Default that arises as a
result of the incurrence of Indebtedness that is not permitted under
this Agreement.
(vi) If any Extraordinary Receipt is received by or paid to or for the
account of the Borrower or any of its Subsidiaries and is not
otherwise included in clause (iii), (iv) or (v) of this Section
2.06(b), the Borrower shall prepay an aggregate principal amount of
Loans equal to 100% of the amount of all the Net Cash Proceeds
received therefrom in excess of $750,000 in the aggregate in any
fiscal year promptly (but in any case within ten (10) Business Days)
after receipt thereof by the Borrower or such Subsidiary. The Borrower
shall provide the Administrative Agent not less than three (3)
Business Days' prior written notice (or one (1) Business Day's prior
written notice, in the case of prepayment of any Base Rate Loan) of
each such prepayment, which notice shall include a certificate of a
Responsible Officer of the Borrower setting forth in reasonable detail
the calculations utilized in computing the Net Cash Proceeds of such
Extraordinary Receipt.
Notwithstanding the foregoing, so long as no Default or Event
of Default shall then exist or would arise therefrom, the proceeds of
any Extraordinary Receipts arising from the proceeds of insurance or
condemnation awards with respect to any assets of the Borrower or its
Subsidiaries shall not be required to be applied in accordance with
this Section 2.06(b)(vi) on such date to the extent that Borrower shall
have delivered to the Administrative Agent on or prior to such date a
certificate signed by a Responsible Officer that such Net Cash Proceeds
are expected to be reinvested in assets to replace or repair the assets
subject to such Extraordinary Receipt within 365 days following the
date of such Extraordinary Receipt (which certificate shall set forth
the estimates of the proceeds to be so expended); provided that if all
or any portion of such Net Cash Proceeds is not so reinvested within
such 365-day period, such unused portion shall be applied on the last
day of such period as a mandatory prepayment as provided in this
Section 2.06(b)(vi).
(vii) In the event that the Net Cash Proceeds from the consummation of the
Permitted Sale-Leaseback Transactions exceed $30,000,000, the Borrower
shall prepay an aggregate principal amount of Loans equal to 50% of
the amount by which all such Net Cash Proceeds exceeds $30,000,000
promptly (but in any case within ten (10) Business Days) after receipt
thereof by the Borrower or such Subsidiary. The Borrower shall provide
the Administrative Agent not less than three (3) Business Days' prior
written notice (or one (1) Business Day's prior written notice, in the
case of prepayment of any Base Rate Loan) of each such prepayment,
which notice shall include a certificate of a Responsible Officer of
the Borrower setting forth in reasonable detail the calculations
utilized in computing the Net Cash Proceeds of such Permitted
Sale-Leaseback Transactions.
(viii) Each prepayment of Loans pursuant to this Section 2.06(b) shall be
applied to the remaining principal repayment installments of the Term
Loan Facility on a pro rata basis.
(ix) Any prepayment required to be made pursuant to clauses (ii), (iii),
(iv), (v), (vi) and (vii) of this Section 2.06(b) shall be required to
be made only for so long as there are any Outstanding Amounts under the
Term Loan.
2.07 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon notice to
the Administrative Agent (it being agreed that such notice may be conditioned
upon the occurrence of a change of control, refinancing, acquisition,
disposition or similar event, but subject to the payment of any amounts required
pursuant to Section 3.05 if any prepayment set forth in such notice is not
made), terminate the Aggregate Revolving Credit Commitments, or from time to
time permanently reduce the Aggregate Revolving Credit Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m. three (3) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$1,000,000 or any whole multiple of $500,000 in excess thereof, (iii) the
Borrower shall not terminate or reduce the Aggregate Revolving Credit
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving
Credit Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Revolving Credit Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Revolving Lenders of
any such notice of termination or reduction of the Aggregate Revolving Credit
Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall
be applied to the Revolving Credit Commitment of each Revolving Lender according
to its Applicable Revolving Credit Percentage. All fees accrued until the
effective date of any termination of the Aggregate Revolving Credit Commitments
shall be paid on the effective date of such termination.
2.08 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Revolving Lenders on the Revolving Credit
Maturity Date the aggregate principal amount of Revolving Loans outstanding on
such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i)
the date ten Business Days after such Loan is made and (ii) the Revolving Credit
Maturity Date.
(c) The Borrower shall repay the principal amount of the Term Loan at the dates
and in the amounts set forth below:
DATE AMOUNT
---- ------
December 31, 2005 $0
March 31, 2006 $0
June 30, 2006 $0
September 30, 2006 $2,500,000
December 31, 2006 $2,500,000
March 31, 2007 $2,500,000
June 30, 2007 $2,500,000
September 30, 2007 $3,750,000
December 31, 2007 $3,750,000
March 31, 2008 $3,750,000
June 30, 2008 $3,750,000
September 30, 2008 $5,000,000
December 31, 2008 $5,000,000
Term Loan Maturity Date Entire Outstanding Amount
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Revolving Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard
to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required
Revolving Lenders or the Required Term Loan Lenders, as applicable,
such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may
be specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief
Law.
2.10 FEES. In addition to certain fees described in subsections (i) and (j)
of Section 2.04:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Revolving
Credit Percentage, a commitment fee (the "Commitment Fee") equal to the
Applicable Rate times the actual daily amount by which the Aggregate Revolving
Credit Commitments exceed the sum of (i) the Outstanding Amount of Revolving
Loans and (ii) the Outstanding Amount of L/C Obligations. The Commitment Fee
shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not met, and shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Revolving Credit Maturity Date. The Commitment Fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter. Such fees shall
be fully earned when paid and shall not be refundable for any reason
whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest for Base
Rate Loans when the Base Rate is determined by Bank of America's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall 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.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in
the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower 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
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Revolving Note, Term Loan Note and/or Swing
Line Note, as applicable, each of which shall evidence such Lender's applicable
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note(s) and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each
Revolving Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Revolving Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Revolving Lender
in respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of each
respective Lender to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Revolving Credit Percentage or Applicable Term Loan
Percentage (or other applicable share as provided herein), as applicable, of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in
the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on
the date of such Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.03 (or, in the case
of a Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.03)
and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower
the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such
Lender's Revolving Loan or Applicable Term Loan Percentage of the Term
Loan, as applicable, included in such Borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the L/C Issuer hereunder that
the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may
be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and
such funds are not made available to the Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the
terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several.
(i) The obligations of the Lenders hereunder to make Revolving Loans, to
fund participations in Letters of Credit and Swing Line Loans and to
make payments pursuant to Section 10.04(c) are several and not joint.
The failure of any Lender to make any Revolving Loan, to fund any such
participation or to make any payment under Section 10.04(c) 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
Revolving Loan, to purchase its participation or to make its payment
under Section 10.04(c).
(ii) The obligations of the Term Loan Lenders to fund each of their
Applicable Term Loan Percentages of the Term Loan Facility are several
and not joint. The failure of any Term Loan Lender to fund its
Applicable Term Loan Percentage of the Term Loan Facility on the
Closing Date shall not relieve any other Term Loan Lender of its
corresponding obligation to do so on the Closing Date, and no Term Loan
Lender shall be responsible for the failure of any other Term Loan
Lender so to fund its Applicable Term Loan Percentage of the Term Loan
Facility.
(e) Funding Source. Except as otherwise provided in Section 3.01(e) or
Section 3.06(a), nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or
to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Revolving Loans or the portion of the
Term Loan made by it, or the participations in L/C Obligations or in Swing Line
Loans held by it resulting in such Lender's receiving payment of a proportion of
the aggregate amount of such Loans or participations and accrued interest
thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the Administrative
Agent of such fact, and (b) purchase (for cash at face value) participations in
the applicable Revolving Loans and/or portion of the Term Loan made by it and/or
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the applicable Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Revolving Loans and/or portion of the Term Loan and/or other amounts
owing them, provided that:
(i) if any such participations or subparticipations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x)
any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in
any of its Revolving Loans, portion of the Term Loan or
subparticipations in L/C Obligations or Swing Line Loans to any
assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
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 Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Borrower 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 Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter at such time as any previously delivered form expires or becomes
obsolete or upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10
percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the
Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower
under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may
be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or
the L/C Issuer, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the
L/C Issuer in the event the Administrative Agent, such Lender or the
L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it
deems confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar Rate,
or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the
London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Revolving Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that for
any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof (a) Dollar deposits are not being offered
to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means
do not exist for determining the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of
such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Revolving Borrowing
of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation
in a Letter of Credit or any Eurodollar Rate Loan made by it, or change
the basis of taxation of payments to such Lender or the L/C Issuer in
respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market
any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any Lending Office of
such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. In order for any Lender or the L/C Issuer to
receive any compensation pursuant to this Section 3.04, it must deliver to the
Borrower a certificate signed by an officer setting forth the amount or amounts
necessary to compensate such Lender or the L/C Issuer or its holding company, as
the case may be, as specified in subsection (a) or (b) of this Section. Such
certificate shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
six months prior to the date that such Lender or the L/C Issuer, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days' prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 10 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 10 days from receipt of such
notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a
Base Rate Loan on a day other than the last day of the Interest Period for such
Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any failure by the 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 Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of
the Interest Period therefor as a result of a request by the Borrower pursuant
to Section 10.13 or in connection with an assignment of a Eurodollar Rate Loan
by Bank of America within the first one hundred and eighty days after the
Closing Date in connection with the initial syndication of the Revolving Credit
Facility and/or the Term Loan Facility;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
3.01, the Borrower may replace such Lender in accordance with Section 10.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder
is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each dated the Closing Date (or, in
the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and each of the Lenders:
(i) eight (8) (or such lesser amount as the Administrative Agent shall
agree) executed counterparts of this Agreement and the Guaranty and
each Security Instrument;
(ii) (A) a Revolving Note executed by the Borrower in favor of each
Revolving Lender requesting a Revolving Note, (B) a Term Loan Note
executed by the Borrower in favor of each Term Loan Lender requesting a
Term Loan Note and (C) a Swing Line Note executed by the Borrower in
favor of the Swing Line Lender;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may 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, and that each of the Borrower and its Subsidiaries
(determined after giving effect to the Purchase) is validly existing,
in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the
extent that failure to do so would not reasonably be expected to have
a Material Adverse Effect, which jurisdictions are set forth as of the
Closing Date on Schedule 4.01 hereto, including certified copies of
each Loan Party's Organization Documents, shareholders' agreements,
certificates of good standing and/or qualification to engage in
business;
(v) favorable opinions of ▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel to the
Loan Parties, and of local Georgia counsel to the Loan Parties, each
addressed to the Administrative Agent and the Lenders in the form of
Exhibits G-1 and G-2, respectively;
(vi) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan
Party and the validity against such Loan Party of the Loan Documents to
which it is a party, and such consents, licenses and approvals shall be
in full force and effect, or (B) stating that no such consents,
licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying:
(A) that the conditions specified in Sections 4.02(a) and (b) have been
satisfied;
(B) that there has been no event or circumstance (other than matters set
forth on Schedule 5.10 to the Purchase Agreement (without giving effect
to any amendment, alteration, addition, replacement or other change
thereto after October 24, 2005 unless approved in writing by the
Administrative Agent)) since June 30, 2005 that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Closing Date Material Adverse Effect;
(C) that none of the Purchase Documents has been altered, amended, waived
or otherwise changed or supplemented since their execution on October
24, 2005, in any respect materially adverse to the Borrower, the
Administrative Agent or the Lenders, except to the extent agreed to by
prior written consent of the Administrative Agent, which consent shall
not be unreasonably withheld;
(D) that (I) the Purchase has been consummated, or is being consummated
substantially simultaneously herewith, in accordance in all material
respects with the terms of the Purchase Documents and all other
material documents with respect to the Purchase and in material
compliance with applicable Laws and regulatory approvals, (II) the
consent listed on Schedule 12.3 of the Purchase Agreement has been
obtained (if such consent is required), (III) such consent is in force
and effect, (IV) all applicable waiting periods have expired
(including the expiration or early termination of any
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ waiting period) without any action being taken by
any Governmental Authority that could restrain, prevent or impose any
material adverse conditions on the Purchase or that could seek or
threaten any of the foregoing, and (V) all conditions precedent to the
consummation of the Purchase have been satisfied (or will be satisfied
concurrently with the consummation hereof) without waiver (except to
the extent such waiver does not affect the Borrower, the
Administrative Agent or the Lenders in a materially adverse manner);
(E) that after giving effect to the Purchase and all Credit Extensions
under this Agreement made on the Closing Date and the incurrence of any
other indebtedness on the Closing Date, the sum of (x) cash on the
balance sheet of the Borrower plus (y) the amount by which the
Aggregate Revolving Credit Commitments exceed the aggregate Outstanding
Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
shall not be less than $10,000,000;
(viii) a certificate of the chief financial officer of the Borrower stating
that, after giving effect to the entering into of the Loan Documents
and the consummation of all of the Transactions, the Borrower and its
Subsidiaries, measured on a consolidated basis, are Solvent;
(ix) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;
(x) an initial Revolving Loan Notice, if any;
(xi) an initial Term Loan Interest Rate Selection Notice, if any;
(xii) delivery of Uniform Commercial Code financing statements suitable in
form and substance for filing in all places required by applicable law
to perfect the Liens of the Administrative Agent under the Security
Instruments as a first priority Lien as to items of Collateral in
which a security interest may be perfected by the filing of financing
statements, and such other documents and/or evidence of other actions
as may be reasonably necessary under applicable law to perfect the
Liens of the Administrative Agent under such Security Instruments as a
first priority Lien in and to such other Collateral as the
Administrative Agent may reasonably require, including the delivery by
the Borrower of all certificates evidencing Pledged Interests,
accompanied in each case by duly executed stock powers (or other
appropriate transfer documents) in blank affixed thereto; and
(xiii) Uniform Commercial Code search results showing only those Liens as are
reasonably acceptable to the Administrative Agent.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all fees, charges and disbursements of counsel to the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrower and the
Administrative Agent).
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to honor
any Request for Credit Extension (other than a Revolving Loan Notice or Term
Loan Interest Rate Selection Notice requesting only a conversion of Revolving
Loans or Segments, as applicable, to the other Type or a continuation of
Eurodollar Rate Loans or Eurodollar Rate Segments, as applicable) is subject to
the following conditions precedent:
(a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects (except that any
representation and warranty that is qualified as to "materiality" or "Material
Adverse Effect" shall be true and correct in all respects) on and as of the date
of such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects (except that any representation and
warranty that is qualified as to "materiality" or "Material Adverse Effect"
shall be true and correct in all respects) as of such earlier date, and except
that for purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to clauses (a), (b) and (c),
respectively, of Section 6.01, and provided further that the representation and
warranty set forth in Section 5.05(c) shall not apply to the initial funding of
Loans on the Closing Date.
(b) No Default shall exist, or would result from such proposed Credit Extension
or from the application of the proceeds thereof, including any Default under
Section 7.11(c) or (d) that would arise from the measurement of each of the
Consolidated Leverage Ratio and the Consolidated Senior Secured Leverage Ratio
as of the last day of the most recently ended period for which a Compliance
Certificate was required to have been delivered but giving pro forma effect to
such Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing
Line Lender shall have received a Request for Credit Extension in accordance
with the requirements hereof.
Each Request for Credit Extension (other than a Revolving Loan Notice
or a Term Loan Interest Rate Selection Notice requesting only a conversion of
Revolving Loans or Segments, as applicable, to the other Type or a continuation
of Eurodollar Rate Loans or Eurodollar Rate Segments, as applicable) submitted
by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as
of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that (giving effect to the Purchase as of the Closing Date):
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan Party
(a) is duly organized or formed, validly existing and in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals 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 is licensed 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 or license, and (d) is in compliance with all Laws; except in each
case referred to in clause (b)(i), (c) or (d), to the extent that failure to be
so or do so could not reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any 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 (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. Each Loan Party is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person that has not been obtained or made is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan
Party that is party thereto. This Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated September 30, 2005, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other liabilities, direct
or contingent, of the Borrower and its consolidated Subsidiaries as of the date
of such financial statements, including liabilities for taxes, material
commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been no event
or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.
(d) As of the Closing Date, no Internal Control Event has occurred with respect
to the Borrower or to the knowledge of the Borrower, with respect to the
Acquired Company, that has not been fully remedied.
(e) The Audited Acquired Company Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial
condition of the Acquired Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Acquired Company and its
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness, except for any nonconformities of the Audited
Acquired Company Financial Statements with any of clauses (i), (ii) or (iii)
above (A) which could not reasonably be expected to have a Material Adverse
Effect and (B) as to which the financial covenants contained in Section 7.11
would have still been satisfied for any period covered in whole or in part by
the Audited Acquired Company Financial Statements had such financial statements
reflected information in full compliance with such clauses (i), (ii) and (iii).
(f) The consolidated pro forma balance sheet of the Borrower and its
Subsidiaries (giving effect to the Transactions) as at June 30, 2005, and the
related consolidated pro forma statements of income and cash flows of the
Borrower and its Subsidiaries for the six-month period then ended, certified by
the chief financial officer of the Borrower, copies of which have been furnished
to each Lender, fairly present the consolidated pro forma financial condition of
the Borrower and its Subsidiaries as at such date and the consolidated pro forma
results of operations of the Borrower and its Subsidiaries for the period ended
on such date, all in accordance with GAAP, except as otherwise expressly noted
therein.
(g) The consolidated forecasted balance sheet and statements of income and cash
flows of the Borrower and its Subsidiaries delivered prior to the date hereof or
pursuant to Section 6.01(c) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
materially affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby, or (b) either individually or in
the aggregate, if determined adversely, would reasonably be expected to have a
Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default under or
with respect to any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, other
than defaults under customer contracts of the Acquired Company arising as a
result of the consummation of the Purchase from change of control provisions
therein. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its Subsidiaries has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business,
except for such defects in record or title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01.
5.09 INSURANCE. The properties of the Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies of similar size, engaged in similar businesses
and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.
5.10 TAXES. The Borrower and its Subsidiaries have filed all Federal, state and
other material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.11 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
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.
(b) There are no pending or, to the best knowledge of the Borrower, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could 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 could
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 any Unfunded Pension Liability; (iii) neither the Borrower 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
due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of 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) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
5.12 SUBSIDIARIES; EQUITY INTERESTS. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.12, and all of the outstanding Equity Interests in such Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by a Loan Party
in the amounts specified on Part (a) of Schedule 5.12 free and clear of all
Liens. Neither the Borrower nor any Subsidiary has any equity investments in any
other corporation or entity other than those specifically disclosed in Part (b)
of Schedule 5.12. All of the outstanding Equity Interests in the Borrower have
been validly issued and are fully paid and nonassessable.
5.13 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary
(i) is a "holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
5.14 DISCLOSURE. The Borrower has disclosed to the Administrative Agent and the
Lenders all matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative Agent
or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, taken as a whole, not misleading;
provided that, with respect to projections, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
5.15 COMPLIANCE WITH LAWS. Each of the Borrower and its Subsidiaries is in
compliance in all respects with the requirements of all Laws (including
Environmental Laws) and all orders, writs, injunctions and decrees applicable to
it or to its properties, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its Subsidiaries
own, or possess the right to use, all of the material trademarks, service marks,
trade names, copyrights, patents, patent rights, franchises, licenses and other
material intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. No slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary
infringes upon any rights held by any other Person, except for such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of the
Borrower, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
5.17 PURCHASE REPRESENTATIONS. All representations and warranties of the
Borrower in the Purchase Agreement are true and correct in all material respects
as of each date made or deemed made. To the Borrower's knowledge, all
representations and warranties of the Acquired Company and its Affiliates in the
Purchase Agreement are true and correct in all material respects on each date
made or deemed made.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each Lender,
in form and detail reasonably satisfactory to the Administrative Agent and the
Required Lenders (which delivery may be made in accordance with the provisions
of Section 6.02 and/or Section 10.02):
(a) As soon as practicable and in any event within 90 days after the close of
each of its fiscal years (or if earlier, 15 days after the date required to be
filed with the SEC (without giving effect to any extension permitted by the
SEC)), an unqualified audit report prepared in accordance with GAAP on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period and related statements of income,
and changes in stockholders' equity and cash flows and accompanied by (i) a
report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with audit standards of the Public
Company Accounting Oversight Board and applicable Securities Laws and shall not
be subject to any going concern or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect to the
absence of any material misstatement and (ii) (A) management's assessment of the
effectiveness of the Borrower's internal controls over financial reporting as of
the end of such fiscal year of the Borrower as required in accordance with Item
308 of SEC Regulation S-K, and (B) with respect to such fiscal year of the
Borrower, an attestation report (or reports) of a Registered Public Accounting
Firm on management's assessment of, and the opinion of the Registered Public
Accounting Firm independently assessing, the effectiveness of the Borrower's
internal controls over financial reporting in accordance with Item 308 of SEC
Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of
▇▇▇▇▇▇▇▇-▇▇▇▇▇.
(b) as soon as available, but in any event within 45 days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower (or if
earlier, five Business Days after the date required to be filed with the SEC
(without giving effect to any execution permitted by the SEC)), a consolidated
balance sheet of the Borrower 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 Borrower's 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, certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes; and
(c) as soon as available, but in any event at least 15 days before the end of
each fiscal year of the Borrower (beginning with the fiscal year ending December
31, 2005), forecasts prepared by management of the Borrower, in form
satisfactory to the Administrative Agent and the Required Lenders, of
consolidated balance sheets and statements of income or operations and cash
flows of the Borrower and its Subsidiaries on a monthly basis for the
immediately following fiscal year (including the fiscal year in which the
Revolving Credit Maturity Date occurs).
As to any information contained in materials furnished pursuant to
Section 6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders (which delivery may be made in accordance with the provisions
of this Section 6.02 and/or Section 10.02):
(a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent certified public accountants
certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Default under the financial
covenants set forth herein or, if any such Default shall exist, stating the
nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;
(c) promptly after any request by the Administrative Agent or any Lender, copies
of any detailed audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of directors) of
the Borrower by independent accountants in connection with the accounts or books
of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report, proxy
or financial statement or other report or communication sent to the stockholders
of the Borrower, and copies of all annual, regular, periodic and special reports
and registration statements which the Borrower may file or be required to file
with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(e) promptly, and in any event within five Business Days after receipt thereof
by any Loan Party or any Subsidiary thereof, copies of each notice or other
correspondence received from the SEC (or comparable agency in any applicable
non-U.S. jurisdiction) concerning any investigation or possible investigation by
such agency regarding financial or other operational results of any Loan Party
or any Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or
corporate affairs of the Borrower or any Subsidiary, 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(d) (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
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; (ii) on
which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); or (iii) on which the recipient of any electronic
communications receives such communications; provided that the Borrower shall
notify the Administrative Agent of the posting of any such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide a paper copy of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower 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 Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (I.E., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "Public Lender"). The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC", the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor"; and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor".
6.03 NOTICES. Promptly notify the Administrative Agent and each Lender (which
notification may be made electronically in accordance with the provisions of
Section 10.02):
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in
a Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(e) of the Registered Public Accounting Firm's determination (in connection with
its preparation of any report under Section 6.01(a)(ii)) or the Borrower's
determination at any time of the occurrence or existence of any Internal Control
Event.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness, except, in any case, for trade and other accounts payable incurred
in the ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a dispute exists
and adequate reserves in conformity with GAAP have been established on the books
of the Borrower or any of its Subsidiaries, as the case may be.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges,
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; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance as required by the
Security Instruments and with respect to its properties and business against
loss or damage of the kinds customarily insured against by Persons of similar
size, in the same general locality and engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons and providing for not less than 15 days'
prior notice to the Administrative Agent of termination, lapse or cancellation
of such insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. 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 Borrower and at such reasonable times during normal
business hours as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided, however, that so long as no Event of Default exists,
each of the Administrative Agent and the Lenders and any of their respect
representatives and independent contractors shall not be permitted more than one
such visit and inspection of each property of the Borrower and its Subsidiaries
in any fiscal quarter; 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 Borrower at any time during normal business hours, without
advance notice and as often as may be desired.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (i) to fund a
portion of the cash consideration for the Purchase and fees and expenses related
thereto, (ii) to refinance existing indebtedness and the payment of all fees and
expenses in connection therewith, and (iii) for working capital, capital
expenditures, and other general corporate purposes not in contravention of any
Law or of any Loan Document.
6.12 NEW SUBSIDIARIES, PLEDGORS AND REAL PROPERTY.
(a) As soon as practicable but in any event within 30 Business Days
following the acquisition or creation of any Subsidiary, cause to be
delivered to the Administrative Agent each of the following:
(i) if such Subsidiary is a Domestic Subsidiary, a Guaranty Joinder
Agreement duly executed by such Domestic Subsidiary;
(ii) if such Subsidiary is a Domestic Subsidiary, (A) a Security Joinder
Agreement duly executed by such Domestic Subsidiary (with all schedules
thereto appropriately completed) and (B) if such Domestic Subsidiary
owns a fee interest in any material real property, such mortgages,
title policies and related mortgage support documents as are requested
by the Administrative Agent;
(iii) if such Subsidiary is either a Domestic Subsidiary or a Direct Foreign
Subsidiary, and if any of the Subsidiary Securities issued by such
Subsidiary are owned by a Domestic Subsidiary who has not then executed
and delivered to the Administrative Agent the Pledge Agreement or a
Pledge Joinder Agreement granting a Lien to the Administrative Agent,
for the benefit of the Secured Parties, in such Pledged Interests, a
Pledge Joinder Agreement (with all schedules thereto appropriately
completed) duly executed by the Domestic Subsidiary that directly owns
such Pledged Interests;
(iv) if such Subsidiary is either a Domestic Subsidiary or a Direct Foreign
Subsidiary, and if any of the Subsidiary Securities issued by such
Subsidiary are owned by the Borrower or a Domestic Subsidiary who has
previously executed a Pledge Agreement or a Pledge Joinder Agreement, a
Pledge Agreement Supplement by the Borrower (if applicable) and each
Domestic Subsidiary that owns any of such Pledged Interests with
respect to such Pledged Interests in the form required by the Pledge
Agreement;
(v) if such Subsidiary is a Domestic Subsidiary and owns any Domestic
Subsidiary or Direct Foreign Subsidiary, a Pledge Joinder Agreement
(with all schedules thereto appropriately completed) duly executed by
such Domestic Subsidiary;
(vi) if the Pledged Interests issued or owned by such Subsidiary constitute
securities under Article 8 of the Uniform Commercial Code (A) the
certificates representing 100% of such Pledged Interests and (B) duly
executed, undated stock powers or other appropriate powers of
assignment in blank affixed thereto;
(vii) with respect to any Person that has executed a Pledge Joinder
Agreement, a Pledge Agreement Supplement, or a Security Joinder
Agreement, Uniform Commercial Code financing statements naming such
Person as "Debtor" and naming the Administrative Agent for the benefit
of the Secured Parties as "Secured Party," in form, substance and
number sufficient in the reasonable opinion of the Administrative
Agent and its special counsel to be filed in all Uniform Commercial
Code filing offices and in all jurisdictions in which filing is
necessary to perfect in favor of the Administrative Agent for the
benefit of the Secured Parties the Lien on the Collateral conferred
under such Security Instrument to the extent such Lien may be
perfected by Uniform Commercial Code filing;
(viii) an opinion of counsel to each Subsidiary executing any Joinder
Agreement (if requested by the Administrative Agent) pursuant to this
Section 6.12, other than a newly-created Subsidiary that has no
existence or operations prior to a date that is not more than thirty
days after the date compliance with this Section 6.12 is required
(each a "NEW SUBSIDIARY"), dated as of the date of delivery of such
applicable Joinder Agreements (and other Loan Documents) provided for
in this Section 6.12 and addressed to the Administrative Agent and the
Lenders, in form and substance reasonably acceptable to the
Administrative Agent, provided that such opinion may be in form and
substance, including assumptions and qualifications contained therein,
substantially similar to those opinions of counsel delivered pursuant
to Section 4.01(a);
(ix) with respect to each Subsidiary executing any Joinder Agreement
pursuant to this Section 6.12, current copies of the Organization
Documents of each such Person, minutes of duly called and conducted
meetings (or duly effected consent actions) of the Board of Directors,
partners, or appropriate committees thereof (and, if required by such
Organization Documents or applicable law, of the shareholders, members
or partners) of such Person authorizing the actions and the execution
and delivery of documents described in this Section 6.12, all
certified by the applicable Governmental Authority or appropriate
officer as the Administrative Agent may elect and, unless an opinion
is being delivered pursuant to Section 6.12(a)(viii) above, all in
form and substance satisfactory to the Administrative Agent; and
(x) with respect to each New Subsidiary executing any Joinder Agreement
pursuant to this Section 6.12, unless an opinion is being delivered
pursuant to Section 6.12(a)(viii) above, a certificate of a Responsible
Officer certifying that after the satisfaction of all provisions of
Section 6.12(a)(i) through (ix) required to be satisfied by such New
Subsidiary, the representations and warranties set forth in Sections
5.01, 5.02, 5.03 and 5.04 are true and correct.
(b) As soon as practicable but in any event within 30 Business Days
following the acquisition of any Pledged Interests by any Domestic
Subsidiary who has not theretofore executed the Pledge Agreement or a
Pledge Joinder Agreement and who is not otherwise required to deliver a
Pledge Joinder Agreement pursuant to Section 6.12(a), cause to be
delivered to the Administrative Agent a Pledge Joinder Agreement (with
all schedules thereto appropriately completed) duly executed by such
Domestic Subsidiary, and the documents, stock certificates, stock
powers, and, if requested by the Administrative Agent, financing
statements, opinions, Organization Documents and organizational action
relating thereto and to the pledge contained therein and described in
Section 6.12(a)(vi), (vii), (viii) and (ix).
(c) If either of the Permitted Sale-Leaseback Transactions has not been
consummated on or before the date that is 90 days after the Closing
Date, then if requested by the Administrative Agent, the Borrower shall
deliver, and shall cause any applicable Subsidiary to deliver, to the
Administrative Agent within 30 days after such request a mortgage with
respect to the real property with respect to which any such Permitted
Sale-Leaseback Transaction shall not have been consummated in the time
provided, along with such title policies and related mortgaged property
support documents as are requested by the Administrative Agent, duly
executed by the Borrower or such Subsidiary, and such other documents,
financing statements and opinions with respect to the grant of a
mortgage therein as the Administrative Agent may reasonably request.
(d) As soon as practicable but in any event within 30 Business Days
following the acquisition of any fee interest in any real property
having a fair market value in excess of $1,000,000, by any Domestic
Subsidiary, notify the Administrative Agent of such acquisition and
provide to the Administrative Agent the location, facility size and use
of such real property, and if requested by the Administrative Agent,
cause to be delivered to the Administrative Agent a mortgage with
respect thereto, along with such title policies and related mortgaged
property support documents as are requested by the Administrative
Agent, duly executed by such Domestic Subsidiary, and such other
documents, financing statements and opinions with respect to the grant
of a mortgage therein as the Administrative Agent may reasonably
request.
6.13 FURTHER ASSURANCES. At the Borrower's cost and expense, upon request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent such further instruments, documents,
certificates, financing and continuation statements, and do and cause to be done
such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Administrative Agent to carry out more effectively the
provisions and purposes of this Agreement, the Guaranty, the Security
Instruments and the other Loan Documents.
6.14 INTERNAL CONTROL EVENTS. Upon notification from the Administrative Agent to
the Borrower that the Required Lenders require remediation of any Internal
Control Event of which they have received notice pursuant to Section 6.03(e) or
as reported in any report delivered pursuant to Section 6.01(a)(ii), remediate
or cause to be remediated such Internal Control Event, and test and confirm such
remediation, not later than the end of the time period reasonably agreed by the
Required Lenders with the Borrower as necessary for such remediation (the
"REMEDIATION PERIOD"). It is understood that the Remediation Period will require
a sufficient period of time to permit testing required by the relevant
Securities Laws and that at least two fiscal quarters are required for an
Internal Control Event to be deemed remediated.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly:
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 date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or 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;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business which are not overdue for
a period of more than 30 days or 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;
(e) pledges or deposits in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially 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 securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being
acquired on the date of acquisition and (iii) with respect to Indebtedness under
capital leases, such Liens do not at any time extend to assets other than the
assets subject to such Indebtedness; and
(j) any interest or title of a lessor under any lease entered into by the
Borrower or any of its Subsidiaries in the ordinary course of their respective
business and covering only the assets so leased and any Lien arising from
precautionary Uniform Commercial Code financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to and
covering only equipment leased by the Borrower or any Subsidiary.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of Cash
Equivalents;
(b) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes, including payroll advances in the ordinary course of
business;
(c) Investments of the Borrower in any Guarantor and Investments of any
wholly-owned Subsidiary in the Borrower or in another Guarantor;
(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 to the extent
reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments consisting of pay-in-kind interest on employee loans existing as
of the date hereof;
(g) Investments received in connection with the bankruptcy, reorganization or
settlement of delinquent agreements or disputes with customers and suppliers, in
each case, in the ordinary course of business;
(h) Acquisitions permitted by Section 7.16;
(i) Investments in Foreign Subsidiaries not exceeding $1,000,000 in the
aggregate at any time outstanding; and
(j) other Investments not exceeding $5,000,000 in the aggregate in any fiscal
year of the Borrower.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness (after giving effect to the Purchase, this Agreement and the
repayment of the Existing Borrower Credit Agreement) other than capital leases
outstanding on the date hereof and listed on Schedule 7.03 and any refinancings,
refundings, renewals or extensions thereof; provided that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder and (ii) the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material
respect to the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or
extended and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable market
interest rate;
(c) Guarantees of the Borrower or any Subsidiary in respect of Indebtedness
otherwise permitted hereunder of the Borrower or any other Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a "market view;" and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases and purchase money obligations for
fixed or capital assets within the limitations set forth in Section 7.01(i);
provided, however, that the aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed $27,500,000;
(f) Indebtedness in respect of the Permitted Sale-Leaseback Transactions;
(g) Indebtedness of (i) the Borrower to any Guarantor and of (ii) any Subsidiary
to the Borrower or another Subsidiary; provided that any such Indebtedness owing
by a Guarantor to a Subsidiary that is not a Guarantor shall be subordinated to
the Obligations and shall be evidenced by a promissory note pledged to the
Administrative Agent on terms reasonably satisfactory to the Administrative
Agent;
(h) Indebtedness incurred in the ordinary course of business in respect of
performance, bid and surety bonds and completion guarantees; (i) Indebtedness
consisting of customary overdraft and similar protections in connection with
deposit accounts; and
(j) unsecured Indebtedness in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with or into (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any Guarantor is merging with another
Subsidiary, the Guarantor shall be the continuing or surviving Person;
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary;
provided that if the transferor is a Guarantor then the Transferee must be the
Borrower or a Guarantor; and
(c) the Borrower or any Subsidiary thereof may merge with any Person organized
or existing under the laws of the United States of America, any State thereof or
the District of Columbia in connection with an Acquisition permitted by Section
7.16; provided that if such transaction involves the Borrower, the Borrower
shall be the continuing or surviving Person and, if such transaction involves
any other Loan Party, the surviving Person must be a Guarantor.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of uneconomic, obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents in the ordinary course of
business;
(c) Dispositions of equipment or real property, other than in connection with
the Permitted Sale-Leaseback Transaction, to the extent that (i) such property
is exchanged for credit against the purchase price of replacement property used
for similar or related purposes or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of replacement property used
for similar or related purposes;
(d) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions in connection with any Permitted Sale-Leaseback Transaction;
(g) the sale or discount with or without recourse of not more than $1,000,000
face amount in any fiscal year of accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;
(h) any Disposition of any property the aggregate amount of the net proceeds
received in respect of which shall not exceed $1,000,000 in any fiscal year;
(i) any Disposition of any minority interests in a joint venture or other
Person;
(j) any Disposition of leasehold interests in the ordinary course of business
that do not detract from or impair the operations of the Borrower and its
Subsidiaries; and
(k) any Disposition of personal property held for resale to customers made in
the ordinary course of business so long as such resale is in compliance with the
proviso below and in any event is for not less than the amount paid by the
Borrower or its applicable Subsidiary for such personal property;
provided, however, that any Disposition pursuant to clauses (a), (b), (c), (e),
(f), (h), (i), (j) and (k) shall be for fair market value as determined by the
Borrower in good faith.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower and the
Guarantors, ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) the Borrower may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds not required to be applied to the mandatory
repayment of Loans pursuant to Section 2.06 received from the substantially
concurrent issue of new shares of its common stock or other common Equity
Interests;
(d) the Borrower may issue and sell shares of its common stock, so long as the
Net Cash Proceeds thereof are applied to the prepayment of the Loans pursuant to
Section 2.06(b);
(e) the Borrower may purchase its common stock or common stock options from
present or former officers or employees of the Borrower or any Subsidiary upon
the death, disability or termination of employment of such officer or employee,
provided, that the aggregate amount of payments under this clause (e) subsequent
to the date hereof (net of any proceeds received by the Borrower or any
Subsidiary subsequent to the date hereof in connection with resales of any
common stock or common stock options so purchased) shall not exceed $500,000;
(f) the Borrower may consummate non-cash repurchases of capital stock that occur
or are deemed to occur upon the non-cash exercise of stock options and warrants;
and
(g) for the avoidance of doubt, the Borrower may make regularly scheduled
semi-annual payments of interest in respect of the Convertible Notes outstanding
on the Closing Date and may convert the Convertible Notes into shares of the
Borrower's common stock in accordance with the Convertible Notes Indenture
Documents (provided, that this provision shall not constitute any consent to a
Change of Control).
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof (giving effect to the Purchase) or any
business substantially related, complementary or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate. Notwithstanding the foregoing, nothing in this Section
7.08 shall prohibit the Borrower or its Subsidiaries from engaging in the
following transactions: (a) the performance of the Borrower's or any
Subsidiary's obligations under any employment contract, collective bargaining
agreement, employee benefit plan, related trust agreement or any other similar
arrangement heretofore or hereafter entered into in the ordinary course of
business, (b) the payment of compensation to employees, officers, directors or
consultants in the ordinary course of business or (c) the maintenance of benefit
programs or arrangements for employees, officers or directors, including
vacation plans, health and life insurance plans, deferred compensation plans,
and retirement or savings plans and similar plans, in each case, in the ordinary
course of business.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other than
this Agreement or any other Loan Document) that (a) requires the grant of a Lien
to secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person; or (b) limits the ability (i) of any Subsidiary to
make Restricted Payments to the Borrower or any Guarantor or to otherwise
transfer property to the Borrower or any Guarantor, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided that clause (b)(i) above shall not prohibit (A) limitations on
transfers of property pending Disposition thereof to the extent such property is
the subject of an agreement for its disposal in a Disposition permitted
hereunder, (B) limitations on transfers of cash held on deposit for or for the
account of customers of any Subsidiary pursuant to customer contracts entered
into in the ordinary course of business or (C) customary provisions in leases
and other commercial agreements entered into in the ordinary course of business
that prohibit or restrict the assignment of such lease or commercial agreement;
and provided further that clause (b)(iii) above shall not prohibit any negative
pledge incurred or provided in favor of any holder of Indebtedness permitted
under Section 7.03(e) solely to the extent any such negative pledge relates to
the property financed by or the subject of such Indebtedness, and clause (i) .
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to purchase
or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin stock
or to refund indebtedness originally incurred for such purpose.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any period of four fiscal quarters of the
Borrower to be less than 1.25 to 1.00.
(b) Consolidated EBITDA. Permit Consolidated EBITDA as of the end of any period
of four fiscal quarters set forth below to be less than the amount set forth
below opposite such period:
Minimum
Four Fiscal Quarters Ending Consolidated EBITDA
-------------------------------------------------------------- -------------------------------------
December 31, 2005, March 31, 2006 $25,000,000
and June 30, 2006
September 30, 2006 $30,000,000
December 31, 2006 $35,000,000
March 31, 2007 and each fiscal quarter thereafter $45,000,000
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of
the end of any period of four fiscal quarters of the Borrower set forth below to
be greater than the ratio set forth below opposite such period:
Maximum
Consolidated
Four Fiscal Quarters Ending Leverage Ratio
-------------------------------------------------------------- -------------------------------------
December 31, 2005 and March 31, 2006 5.50 to 1.00
June 30, 2006 5.25 to 1.00
September 30, 2006 4.50 to 1.00
December 31, 2006 4.00 to 1.00
March 31, 2007 and each fiscal quarter thereafter 3.25 to 1.00
(d) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior
Secured Leverage Ratio as of the end of any period of four fiscal quarters of
the Borrower set forth below to be greater than the ratio set forth below
opposite such period:
Maximum
Consolidated Senior
Period Secured Leverage Ratio
--------------------------------------------------------------- ------------------------------------
December 31, 2006, March 31, 2006 and June 3.25 to 1.00
30, 2006
September 30, 2006 2.50 to 1.00
December 31, 2006 2.25 to 1.00
March 31, 2007, June 30, 2007, September 30, 2.00 to 1.00
2007 and December 31, 2007
March 31, 2008 and each fiscal quarter thereafter 1.75 to 1.00
7.12 CAPITAL EXPENDITURES. Make or become legally obligated to make any Capital
Expenditure in cash, except for cash Capital Expenditures made in the ordinary
course of business not exceeding $10,000,000 in the aggregate for the Borrower
and it Subsidiaries (after giving effect to the Purchase) during any fiscal
year; provided, however, that the costs of the Purchase and any Acquisitions
permitted by Section 7.16 shall neither be prohibited by this Section 7.12 nor
count against the dollar limit set forth herein.
7.13 AMENDMENTS OF ORGANIZATION DOCUMENTS AND CONVERTIBLE NOTES INDENTURE
DOCUMENTS.
(a) Amend any of its Organization Documents in a manner materially adverse to
the Administrative Agent and the Lenders, provided that such Organization
Documents may be amended for purposes of a name change if the Administrative
Agent is given 15 days' prior written notice thereof.
(b) Amend, modify or change in any manner any term or condition of any of the
Convertible Notes Indenture Documents so that the terms and conditions thereof
are less favorable in any material respect to the Administrative Agent and the
Lenders than the terms thereof as of the Closing Date, but in no event shall
terms of guarantees or credit support or any requirement to pay interest or
principal in cash, be any less favorable to the Administrative Agent and the
Lenders than the terms of such Indebtedness as of the Closing Date.
7.14 ACCOUNTING CHANGES. Make any change in its fiscal year.
7.15 PREPAYMENTS, ETC. OF CERTAIN INDEBTEDNESS. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Subordinated Indebtedness, any Indebtedness permitted by Section 7.03(e) or any
Indebtedness under the Convertible Notes or any other Convertible Notes
Indenture Document, except (i) the refinancing thereof in accordance with
Section 7.03(b), (ii) the prepayment, redemption or repurchase of Indebtedness
in respect of capital leases and/or purchase money Indebtedness by the Borrower
and its Subsidiaries in an aggregate amount not to exceed $750,000 in any fiscal
year and (iii) the satisfaction of the Convertible Notes by the conversion of
the Convertible Notes into shares of the Borrower's common stock in accordance
with the Convertible Notes Indenture Documents (provided, that (a) the Borrower
shall not make any cash payment in connection therewith and (b) this provision
shall not constitute any consent to a Change of Control), and (iv) any such
action with respect to Subordinated Indebtedness permitted by Section 7.03(j) as
long as such action is not in violation of any subordination terms thereof.
7.16 ACQUISITIONS. Enter into any agreement, contract, binding commitment or
other arrangement providing for any Acquisition, or take any action to solicit
the tender of securities or proxies in respect thereof in order to effect any
Acquisition, unless (i) the Person to be (or whose assets are to be) acquired
does not oppose such Acquisition and the line or lines of business of the Person
to be acquired is substantially similar to those lines of business conducted by
the Borrower and its Subsidiaries, (ii) no Default or Event of Default shall
have occurred and be continuing either immediately prior to or immediately after
giving effect to such Acquisition and, if the Cost of Acquisition is in excess
of $5,000,000, the Borrower shall have furnished to the Administrative Agent (A)
pro forma historical financial statements as of the end of the most recently
completed fiscal year of the Borrower and most recent interim fiscal quarter, if
applicable, giving effect to such Acquisition, and (B) a Compliance Certificate
prepared on a historical pro forma basis as of the date of the Audited Financial
Statements or, if later, as of the most recent date for which financial
statements have been furnished pursuant to Section 6.01(a) or (b), giving effect
to such Acquisition, which Compliance Certificate shall demonstrate that no
Default or Event of Default would exist immediately after giving effect thereto,
(iii) the Person acquired shall be a wholly-owned Subsidiary, or be merged with
or into a Subsidiary, immediately upon consummation of the Acquisition (or if
assets are being acquired, the acquiror shall be a Subsidiary), (iv) upon
consummation of the Acquisition each Subsidiary shall have complied with the
provisions of Section 6.12, including with respect to any new assets (including
real property or mineral rights) acquired, (v) if the Cost of Acquisition
exceeds $20,000,000, the Required Lenders shall consent to such Acquisition in
their discretion and (vi) after giving effect to such Acquisition, (A) the cash
portion of the Costs of Acquisition for all Acquisitions shall not exceed
$5,000,000 in any fiscal year and (B) the aggregate Costs of Acquisition for all
Acquisitions in any fiscal year shall not exceed $20,000,000.
7.17 SUBSIDIARIES. (a) Create or acquire any new Subsidiary after the Closing
Date other than wholly-owned Subsidiaries created or acquired in accordance with
Section 6.12 or (b) permit any Subsidiary to not be wholly-owned by the Borrower
or another wholly-owned Subsidiary of the Borrower.
7.18 SALE-LEASEBACK TRANSACTIONS. Enter into any arrangement with any Person
providing for the leasing by the Borrower or any Subsidiary of real or personal
property which has been or is to be sold or transferred by the Borrower or such
Subsidiary to such Person other than the Permitted Sale-Leaseback Transactions;
provided that (x) neither Permitted Sale-Leaseback Transaction shall result in a
Synthetic Lease or a capital lease of the Borrower or any of its Subsidiaries,
and (y) the Net Cash Proceeds of any sale of assets undertaken in connection
therewith shall be applied to the prepayment of the Term Loan in accordance with
Section 2.06(b)(vii).
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and
as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three days after the same becomes due, any interest
on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within
five days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make (after
the giving of any applicable notice and beyond any applicable period of grace)
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary (i) 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 does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower 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 in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Lien granted thereunder at any time after
its creation and perfection and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect or have the priority required hereby or thereby;
or any Loan Party or any other Person that is an Affiliate of any Loan Party
contests in any manner the validity or enforceability of any Loan Document or
the validity, perfection or priority of any Lien granted thereunder; or any Loan
Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower;
(c) require that the 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;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, 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 the 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.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III but excluding amounts payable under Related Credit Arrangements)
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, interest, Letter of
Credit Fees and amounts payable in respect of Related Credit Arrangements)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the Lenders and the L/C Issuer and amounts payable
under Article III), ratably among them in proportion to the respective amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C
Borrowings and other Obligations (other than Related Credit Arrangements),
ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;
Sixth, to payment of Swap Termination Values and amounts owing under
Related Treasury Management Arrangements, in each case to the extent owing to
any Lender or any Affiliate of any Lender arising under Related Credit
Arrangements that shall have been terminated and as to which the Administrative
Agent shall have received notice of such termination and the Swap Termination
Value thereof or the amount owing under the applicable Related Treasury
Management Arrangement from the applicable Lender or Affiliate of a Lender;
Seventh, to the payment of all other Obligations of the Loan Parties
owing under or in respect of the Loan Document that are due and payable to the
Administrative Agent and the other Secured Parties, or any of them, on such
date, ratably based on the respective aggregate amounts of all such Obligations
owing to the Administrative Agent and the other Secured Parties on such date;
and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Administrative
Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at any
time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the
Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the L/C Issuer directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender and the
L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary notwithstanding, none
of the Bookrunners, Arrangers, Syndication Agent or Documentation Agent listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.04(i) and (j), 2.10 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer 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 and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii)
that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 10.01,
if approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.10.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom, shall be effective unless in writing signed by
the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written consent
of each Lender;
(b) extend or increase (i) the Revolving Credit Commitment of any Revolving
Lender (or reinstate any Revolving Credit Commitment terminated pursuant to
Section 8.02) or (ii) the obligation of any Term Loan Lender to make any portion
of the Term Loan, in each case without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder (including the Term Loan
Maturity Date and the Revolving Credit Maturity Date) or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to this
Section 10.01) any fees or other amounts payable hereunder or under any other
Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.14 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender directly affected thereby;
(f) change any provision of this Section or the definition of "Required
Revolving Lenders" or any other provision hereof specifying the number or
percentage of Revolving Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Revolving Lender;
(g) change any provision of this Section or the definition of "Required Term
Loan Lenders" or any other provision hereof specifying the number or percentage
of Term Loan Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Term Loan Lender;
(h) release all or substantially all of the value of the Guaranty without the
written consent of each Lender (except in connection with a Disposition
permitted hereunder); or
(i) release all or substantially all of the Collateral without the written
consent of each Lender except with respect to Dispositions and releases of
Collateral permitted or required hereunder (including pursuant to Section 7.05)
or as provided in the other Loan Documents (in which case such release may be
made by the Administrative Agent acting alone);
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.06(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; (v) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto; and (vi) no amendment, waiver or
consent which has the effect of enabling the Borrower to satisfy any condition
to a Borrowing contained in Section 4.02 hereof which, but for such amendment,
waiver or consent would not be satisfied, shall be effective to require the
Revolving Lenders, the Swing Line Lender or the L/C Issuer to make any
additional Revolving Loan or Swing Line Loan, or to issue any additional or
renew any existing Letter of Credit, unless and until the Required Revolving
Lenders (or, if applicable, all Revolving Lenders) shall have approved such
amendment, waiver or consent. Notwithstanding anything to the contrary herein,
no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Revolving Credit
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier or, as provided in Section
10.02(b), via electronic means as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or the
Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule
10.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the
L/C Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Revolving Loan Notices, Term Loan Interest Rate
Selection Notices and Swing Line Loan Notices) purportedly given by or on behalf
of the 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. The Borrower shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or the
L/C Issuer), in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit. Notwithstanding the foregoing, the Borrower shall be liable
to reimburse fees, charges and disbursements of only one firm of legal counsel
to the Administrative Agent and the Lenders except during the existence of an
Event of Default.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the Transactions or any other transactions
contemplated hereby or thereby or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not later than
ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of
the Administrative Agent, the L/C Issuer and the Swing Line Lender, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or
the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except
that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this Section
(and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Revolving
Credit Commitment and its Revolving Loans (including for purposes of
this subsection (b), participations in L/C Obligations and in Swing
Line Loans) or of its Applicable Term Loan Percentage of the Term Loan
at the time owing to it (such Lender's portion of Loans, commitments
and risk participations with respect to each of the Revolving Credit
Facility and the Term Loan Facility (each, an "APPLICABLE FACILITY")
being referred to in this Section 10.06 as its "APPLICABLE SHARE")) at
the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Applicable Share of the Applicable Facility at
the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Applicable Share (which for this purpose
includes Loans outstanding thereunder) with respect to each Applicable
Facility, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent
or, if "Trade Date" is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than (A) $1,000,000 with respect
to the Revolving Credit Facility and (B) $1,000,000 with respect to
the Term Loan Facility, unless in either case each of the
Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed), provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Applicable Facility, except
that this clause (ii) shall not (A) prohibit any Lender from assigning
all or a portion of its rights and obligations among the Applicable
Facilities on a non-pro rata basis or (B) apply to rights in respect of
Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that
is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set
forth in Schedule 10.06, and the Eligible Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the 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 of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.14 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, 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.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an "SPC") the
option to provide all or any part of any Revolving Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Revolving Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Revolving Loan, the Granting
Lender shall be obligated to make such Revolving Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.13(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Revolving Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Revolving Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Revolving Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Revolving Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in outstanding Swing Line Loans pursuant to Section
2.05(c). Upon the appointment of a successor L/C Issuer and/or Swing Line
Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such successor or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information
received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower
or any Subsidiary after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, after obtaining the
prior written consent of the Administrative Agent, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement and the other
Loan Documents may be executed in counterparts (and by different parties hereto
in different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement and the other Loan
Documents shall become effective when they shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement and any other Loan Document by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement and
the other Loan Documents.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative 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.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender is a Defaulting Lender, or if any Lender fails to approve
any amendment, waiver or consent requested by Borrower pursuant to Section 10.01
that has received the written approval of not less than the Required Lenders but
also requires the approval of such Lender, then in each such case the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation
under Section 3.04 or payments required to be made pursuant to Section 3.01,
such assignment will result in a reduction in such compensation or payments
thereafter;
(d) in the case of any such assignment resulting from the refusal of a Lender to
approve a requested amendment, waiver or consent, the Person to whom such
assignment is being made has agreed to approve such requested amendment, waiver
or consent; and
(e) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INFOCROSSING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and
Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
SOVEREIGN BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President