EXHIBIT 10.28
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of August 7, 2002
among
AFFILIATED MANAGERS GROUP, INC.,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and Swingline Lender,
THE BANK OF NEW YORK,
as Syndication Agent
and
The Several Lenders
from Time to Time Parties Hereto
BANC OF AMERICA SECURITIES LLC
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS................................................................................1
1.1. Defined Terms..................................................................................1
1.2. Other Definitional and Interpretive Provisions................................................15
1.3. Accounting Terms..............................................................................16
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS; SWINGLINE LOANS..........................................16
2.1. Commitments...................................................................................17
2.2. Procedure for Borrowing.......................................................................17
2.3. Increase of Commitments.......................................................................17
2.4. Commitment Fee................................................................................18
2.5. Termination or Reduction of Commitments.......................................................19
2.6. Repayment of Loans; Evidence of Debt..........................................................19
2.7. Swingline Loans...............................................................................19
2.8. Procedure for Swingline Borrowing; Refunding of Swingline Loans...............................20
SECTION 3. GENERAL PROVISIONS APPLICABLE TO THE LOANS................................................21
3.1. Optional Prepayments..........................................................................22
3.2. Mandatory Commitment Reductions; Mandatory Prepayments........................................22
3.3. Conversion and Continuation Options...........................................................22
3.4. Minimum Amounts and Maximum Number of Tranches................................................23
3.5. Interest Rates and Payment Dates..............................................................23
3.6. Computation of Interest and Fees..............................................................23
3.7. Inability to Determine Interest Rate..........................................................24
3.8. Pro Rata Treatment and Payments...............................................................24
3.9. Illegality....................................................................................26
3.10. Requirements of Law...........................................................................26
3.11. Taxes.........................................................................................27
3.12. Indemnity.....................................................................................28
3.13. Change of Lending Office......................................................................29
SECTION 4. REPRESENTATIONS AND WARRANTIES............................................................29
4.1. Financial Condition...........................................................................29
4.2. No Change.....................................................................................30
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TABLE OF CONTENTS
(continued)
PAGE
4.3. Corporate Existence; Compliance with Law......................................................30
4.4. Corporate Power; Authorization; Enforceable Obligations.......................................30
4.5. No Legal Bar..................................................................................30
4.6. No Material Litigation........................................................................31
4.7. No Default....................................................................................31
4.8. Ownership of Property; Liens..................................................................31
4.9. Taxes.........................................................................................31
4.10. Federal Regulations...........................................................................31
4.11. ERISA.........................................................................................31
4.12. Investment Company Act; Investment Advisers Act...............................................32
4.13. Investment Advisory Agreements................................................................32
4.14. Subsidiaries and Other Ownership Interests....................................................33
4.15. Purpose of Loans..............................................................................33
4.16. Accuracy and Completeness of Information......................................................33
4.17. Pledge Agreements.............................................................................33
SECTION 5. CONDITIONS PRECEDENT......................................................................33
5.1. Conditions to Initial Loans...................................................................33
5.2. Conditions to Each Loan.......................................................................35
SECTION 6. AFFIRMATIVE COVENANTS.....................................................................36
6.1. Financial Statements..........................................................................36
6.2. Certificates; Other Information...............................................................37
6.3. Payment of Obligations........................................................................39
6.4. Conduct of Business and Maintenance of Existence..............................................39
6.5. Maintenance of Property; Insurance............................................................39
6.6. Inspection of Property; Books and Records; Discussions........................................39
6.7. Notices.......................................................................................40
6.8. Stock Pledges.................................................................................41
6.9. Guarantees....................................................................................41
SECTION 7. NEGATIVE COVENANTS........................................................................41
7.1. Financial Condition Covenants.................................................................41
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TABLE OF CONTENTS
(continued)
PAGE
7.2. Limitation on Indebtedness....................................................................42
7.3. Limitation on Liens...........................................................................43
7.4. Limitation on Guarantee Obligations...........................................................44
7.5. Limitation on Fundamental Changes.............................................................45
7.6. Limitation on Sale of Assets..................................................................45
7.7. Limitation on Leases..........................................................................46
7.8. Limitation on Dividends.......................................................................46
7.9. Limitation on Capital Expenditures............................................................46
7.10. Limitation on Investments, Loans and Advances.................................................46
7.11. Limitation on Payments of Subordinated Indebtedness...........................................47
7.12. Restriction on Amendments to Revenue Sharing Agreements.......................................47
7.13. Limitation on Transactions with Affiliates....................................................48
7.14. Limitation on Changes in Fiscal Year..........................................................48
7.15. Limitation on Synthetic Lease Obligations.....................................................48
7.16. Limitation on Acquisitions....................................................................48
SECTION 8. EVENTS OF DEFAULT.........................................................................48
SECTION 9. THE ADMINISTRATIVE AGENT..................................................................51
9.1. Appointment and Authorization of Administrative Agent.........................................51
9.2. Delegation of Duties..........................................................................51
9.3. Liability of Administrative Agent.............................................................51
9.4. Reliance by Administrative Agent..............................................................52
9.5. Notice of Default.............................................................................52
9.6. Credit Decision; Disclosure of Information by Administrative Agent............................52
9.7. Indemnification of Administrative Agent.......................................................53
9.8. Administrative Agent in Its Individual Capacity...............................................53
9.9. Successor Administrative Agent................................................................54
9.10. Administrative Agent May File Proof of Claim..................................................54
9.11. Collateral and Guaranty Matters...............................................................55
9.12. Other Agents; Arrangers and Managers..........................................................55
SECTION 10. MISCELLANEOUS.............................................................................56
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TABLE OF CONTENTS
(continued)
PAGE
10.1. Amendments and Waivers........................................................................56
10.2. Notices.......................................................................................57
10.3. No Waiver; Cumulative Remedies................................................................57
10.4. Survival of Representations and Warranties....................................................57
10.5. Payment of Expenses and Taxes.................................................................57
10.6. Successors and Assigns; Participations and Assignments........................................58
10.7. Adjustments; Set-off..........................................................................60
10.8. Counterparts..................................................................................61
10.9. Severability..................................................................................61
10.10. Integration...................................................................................61
10.11. GOVERNING LAW.................................................................................61
10.12. Submission To Jurisdiction; Waivers...........................................................62
10.13. Acknowledgements..............................................................................62
10.14. WAIVERS OF JURY TRIAL.........................................................................62
10.15. Confidentiality...............................................................................63
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CREDIT AGREEMENT
This
CREDIT AGREEMENT, dated as of August 7, 2002, is among
Affiliated Managers Group, Inc., a Delaware corporation (the "BORROWER"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "LENDERS") and Bank of America, N.A., as administrative agent for
the Lenders, and The Bank of
New York, as syndication agent.
W I T N E S S E T H :
WHEREAS, the Borrower has acquired, and intends to acquire,
directly or indirectly, majority and other equity interests (each an
"ACQUISITION") in investment management firms (each, as hereinafter further
defined, an "INVESTMENT FIRM"); and
WHEREAS, the Borrower currently has loans outstanding under the
existing
Credit Agreement dated as of December 22, 1997 among the Borrower, the
several lenders parties thereto, Bank of America, N.A. (formerly NationsBank,
N.A.), as documentation agent, and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (formerly The Chase
Manhattan Bank), as administrative agent (the "EXISTING FACILITY"); and
WHEREAS, the Borrower has requested loans of up to $235,000,000
(with such increases as may be permitted hereunder) on a revolving basis for the
purposes set forth in SECTION 4.15; and
WHEREAS, the Lenders are willing to make Loans to the Borrower,
subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ABR" 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.
"ABR LOAN" means a Loan that bears interest at a rate based upon
the ABR.
"ACQUISITION" is defined in the recitals hereto.
"ADJUSTED CONSOLIDATED EBITDA" means, for any Computation Period,
Consolidated EBITDA for such Computation Period adjusted by giving
effect on a PRO FORMA basis to Acquisitions completed during such
Computation Period.
"ADMINISTRATIVE AGENT" means Bank of America, N.A. in its
capacity as administrative agent under this Agreement and the other
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 I, or
such other address or account as the Administrative Agent may from
time to time notify the Borrower and the Lenders.
"AFFILIATE" means as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"AGENT-RELATED PERSON" means the Administrative Agent, together
with its Affiliates (including, in the case of Bank of America in its
capacity as the Administrative Agent, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of the
Administrative Agent and its Affiliates.
"AGREEMENT" means this
Credit Agreement.
"APPLICABLE MARGIN" means with respect to Eurodollar Loans and
ABR Loans, from time to time, the rate per annum set forth under the
headings "Applicable Margin for Eurodollar Loans" and "Applicable
Margin for ABR Loans," respectively, on ANNEX I hereto based upon the
Debt Rating.
"ARRANGER" means Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.
"ASSET SALE" means any sale, issuance, conveyance, transfer,
lease or other disposition, including by way of merger, consolidation
or sale and leaseback transaction (any of the foregoing, a
"transfer"), directly or indirectly, in one or a series of related
transactions, of (i) all or substantially all of the properties and
assets (other than marketable securities, including "margin stock"
within the meaning of Regulation U, liquid investments and other
financial instruments) of the Borrower or any Subsidiary, or (ii) any
other properties or assets of the Borrower or any Subsidiary, other
than in the ordinary course of business, to any Persons other than the
Borrower or any Subsidiary. For the purposes of this definition, the
term "Asset Sale" shall not include (a) any transfer of properties and
assets to the extent that the gross proceeds from the transfer thereof
do not exceed (i) $10,000,000 in any transaction or series of related
transactions, taken as a whole, or (ii) $25,000,000 (irrespective of
the size of the individual transactions) in the aggregate for all such
transactions on or after the Closing Date, and (b) any transfer of the
Capital Stock of any Investment Firm or any Subsidiary to a partner,
officer, director,
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shareholder, employee or member (or any entity owned or controlled by
such Person) of an Investment Firm which is a Subsidiary or in which
the Borrower or a Subsidiary has an ownership interest (any such
transfer described in this CLAUSE (b), a "SHAREHOLDER ASSET SALE"). In
addition, with regard to a Subsidiary, the term "Asset Sale" shall
include only that portion of the gross proceeds to such Subsidiary
from the transfer thereof representing the percentage of such proceeds
equal to the percentage of the Borrower's ownership interest in such
Subsidiary.
"ASSIGNEE" is defined in SECTION 10.6(c).
"ATTORNEY COSTS" means and includes all reasonable and documented
fees, expenses and disbursements of any law firm or other external
counsel and, without duplication, the reasonable and documented
allocated cost of internal legal services and all reasonable and
documented expenses and disbursements of internal counsel; PROVIDED
that in the case of the enforcement or preservation of any rights
under the Loan Documents during the continuance of an Event of Default
or in connection with any "workout", Attorney Costs shall not be
limited by the term "reasonable" in this definition.
"AVAILABLE COMMITMENT" means as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate principal amount of all Revolving
Loans made by such Lender then outstanding PLUS, for all purposes
other than SECTION 2.4, its Commitment Percentage of any Swingline
Loans.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BORROWER" is defined in the preamble hereto.
"BORROWER PLEDGE AGREEMENT" means a pledge agreement
substantially in the form of EXHIBIT B-1.
"BORROWING DATE" means any Business Day specified in a notice
pursuant to SECTION 2.2 or 2.8 as a date on which the Borrower
requests the Lenders or the Swingline Lender to make Loans hereunder.
"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, Boston, Massachusetts or
New York,
New
York, 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 STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
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"CASH EQUIVALENT" means, at any time, (a) any evidence of
indebtedness, maturing not more than one year after such time, issued
or guaranteed by the United States Government or any agency thereof,
(b) commercial paper, maturing not more than one year from the date of
issue, or corporate demand notes, in each case (unless issued by a
Lender or its holding company) rated at least A-l by S&P or P-l by
▇▇▇▇▇'▇ (or carrying an equivalent rating by an
internationally-recognized rating agency), (c) any certificate of
deposit (or time deposits represented by such certificates of deposit)
or bankers acceptance, maturing not more than one year after such
time, or overnight Federal Funds transactions or money market deposit
accounts that are issued or sold by, or maintained with, a commercial
bank or financial institution incorporated under the laws of the
United States, any state thereof or the District of Columbia which is
rated at least A-1 by S&P or P-l by ▇▇▇▇▇'▇ (or carrying an equivalent
rating by an internationally-recognized rating agency), (d) any
repurchase agreement entered into with a commercial bank or financial
institution meeting the requirements of CLAUSE (c) which (i) is
secured by a fully perfected security interest in any obligation of
the type described in any of CLAUSES (a) through (c) and (ii) has a
market value at the time such repurchase agreement is entered into of
not less than 100% of the repurchase obligation of such commercial
bank or financial institution thereunder, (e) securities with
maturities of six months or less from the date of acquisition backed
by standby letters of credit issued by any commercial bank or
financial institution meeting the requirements of CLAUSE (c), or (f)
shares of money market mutual or similar funds which invest primarily
in assets satisfying the requirements of clauses (a) through (e) of
this definition.
"CHANGE OF CONTROL" shall be deemed to occur on any date on which
any Person or "group" (within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934) shall have acquired beneficial
ownership of Capital Stock having 30% or more of the ordinary voting
power in the election of directors of the Borrower.
"CLOSING DATE" means the date on which the conditions precedent
set forth in SECTION 5.1 shall be satisfied.
"CODE" means the Internal Revenue Code of 1986.
"COMMITMENT" means, as to any Lender, the obligation of such
Lender to make Loans to the Borrower hereunder in an aggregate
principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on SCHEDULE I under the heading
"Commitment", as such amount may be increased or reduced from time to
time in accordance with the provisions of this Agreement.
"COMMITMENT FEE RATE" means, from time to time, the rate per
annum set forth under the heading "Commitment Fee Rate" on ANNEX I
hereto based upon the Debt Rating.
"COMMITMENT PERCENTAGE" means as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which (a) the aggregate
principal amount of such Lender's Revolving Loans then outstanding
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PLUS (b) its Percentage of any Swingline Loans, constitutes of the
aggregate principal amount of the Loans then outstanding).
"COMMITMENT PERIOD" means the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT H.
"COMPUTATION PERIOD" means each period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
"CONSOLIDATED EBITDA" means for any period the consolidated
EBITDA of the Borrower and its Subsidiaries for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the amount
of interest expense of the Borrower and, to the extent payable out of
Free Cash Flow (and not Operating Cash Flow) under the relevant
Revenue Sharing Agreement, its Subsidiaries on a consolidated basis,
net of the portion thereof attributable to minority interests, for
such period.
"CONSOLIDATED NET INCOME" (or "CONSOLIDATED NET LOSS") means for
any period, consolidated net income (or loss) of the Borrower and its
Subsidiaries for such period.
"CONSOLIDATED NET WORTH" means, as at any date, all amounts
included under shareholders' equity on a consolidated balance sheet of
the Borrower and its Subsidiaries as at such date.
"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.
"DEBT RATING" means, as of any date of determination, the rating
as determined by either S&P or ▇▇▇▇▇'▇ (collectively, the "DEBT
RATINGS") of the Borrower's non-credit-enhanced, senior unsecured
long-term debt; PROVIDED that if a Debt Rating is issued by each of
the foregoing rating agencies, then the lower of such Debt Ratings
shall apply (with the Debt Rating for Pricing Level 1 being the
highest and the Debt Rating for Pricing Level 5 being the lowest),
unless there is a split in Debt Ratings of more than one level, in
which case the Pricing Level that is one level higher than the Pricing
Level of the lower Debt Rating shall apply.
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"DEFAULT" means any of the events specified in SECTION 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"DEFAULT RATE" means an interest rate equal to (a) the ABR PLUS
(b) the Applicable Margin, if any, applicable to ABR Loans PLUS (c) 2%
per annum; PROVIDED that with respect to a Eurodollar Loan, the
Default Rate shall be an interest rate equal to (i) the Eurodollar
Rate applicable to such Loan PLUS (ii) the Applicable Margin
applicable to Eurodollar Loans PLUS (iii) 2% per annum.
"DOLLARS" and "$" mean lawful currency of the United States of
America.
"EBITDA" means, for any Person for any period, the sum (without
duplication) of the amount for such Person for such period of (a) its
net income before taxes and (b) to the extent deducted in determining
its net income, (i) its interest expense (including capitalized
interest expense), (ii) its depreciation expense, (iii) its
amortization expense and (iv) its Non-Cash Based Compensation Costs.
"EQUITY UNIT" is defined in the definition of Feline Prides.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"EURODOLLAR LOAN" means a Loan that bears interest at a rate
based upon the Eurodollar Rate.
"EURODOLLAR RATE" means, for any Interest Period with respect to
any Eurodollar Loan, a rate per annum determined by the Administrative
Agent pursuant to the following formula:
Eurodollar Rate = EURODOLLAR BASE RATE
-------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on
the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding CLAUSE (a)
does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on
such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the
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first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding CLAUSES
(a) and (b) are not available, the rate per annum determined by
the Administrative Agent as the rate of interest 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 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 4:00 p.m. (London time) two Business Days prior to
the first day of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during
any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities").
The Eurodollar Rate for each outstanding Eurodollar Loan shall be
adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means any of the events specified in SECTION
8; PROVIDED that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"EXISTING FACILITY" is defined in the recitals.
"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 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, 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.
"FELINE PRIDES" means the equity security units (each an "EQUITY
UNIT") issued by the Borrower on December 18, 2001, consisting of (a)
interest bearing notes due approximately five years from the date of
issuance ("FELINE PRIDES SENIOR NOTES") and (b) purchase contracts
under which the purchaser of such Equity Unit agrees to purchase
common stock of the Borrower for an amount equal to the face amount of
the Feline
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Prides Senior Notes held by such purchaser on a date approximately
three years from the date of issuance.
"FINANCING LEASE" means any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"FRB" means the Board of Governors of the Federal Reserve System
of the United States.
"FREE CASH FLOW" means distributions due and payable to the
Borrower by and from an Investment Firm under the Revenue Sharing
Agreement applicable to such Investment Firm, including "Free Cash
Flow" or "Owners' Allocation" as such terms are defined in certain
Revenue Sharing Agreements.
"FUNDS" means the collective reference to all Investment
Companies and other investment accounts or funds (in whatever form and
whether personal or corporate) for which any Subsidiary or Investment
Firm provides advisory, management or administrative services.
"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE OBLIGATION" means as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) with respect to
which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in any such case guaranteeing
or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "PRIMARY OBLIGATIONS") of any other third Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the owner of any such primary obligation against loss
in respect thereof; PROVIDED that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for
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which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the
amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof
as determined by the Borrower in good faith.
"HEADQUARTERS LEASE" means the lease of the Borrower's
headquarters entered into in connection with the Participation
Agreement dated as of December 1, 2000 among Realty Facility Holdings
XII LLC, the Borrower, the Provident Bank and Cornerstone Funding
Corporation I.
"INDEBTEDNESS" means, as to any Person at any date and without
duplication, (a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument (including the Feline Prides Senior
Notes), (c) all obligations of such Person under Financing Leases, (d)
all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (e) all obligations of such
Person under noncompetition agreements reflected as liabilities on a
balance sheet of such Person in accordance with GAAP, (f) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof, (g) all net obligations of such Person under
interest rate, commodity, foreign currency and financial markets
swaps, options, futures and other hedging obligations (valued, at such
date, in accordance with the Borrower's customary practices, as
approved by its independent certified public accountants) and (h) all
Guarantee Obligations of such Person in respect of any of the
foregoing. For purposes of the foregoing definition, with regard to a
Subsidiary, the term "Indebtedness" shall include only that portion of
its Indebtedness representing the percentage of its Indebtedness equal
to the percentage of the Borrower's ownership interest in such
Subsidiary. For the avoidance of doubt, the term "Indebtedness" shall
not include (i) Synthetic Lease Obligations, (ii) any Guarantee
Obligations in respect of Synthetic Lease Obligations or (iii) any
liabilities secured by any Lien in connection with Synthetic Lease
Obligations.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.05.
"INSOLVENCY" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"INSOLVENT" pertaining to a condition of Insolvency.
"INTEREST PAYMENT DATE" means (a) as to any ABR Loan, the last
day of each March, June, September and December to occur while such
Loan is outstanding, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period,
(c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months, or a whole multiple
thereof, after the first
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day of such Interest Period and the last day of such Interest Period
and (d) as to any Eurodollar Loan, the date of any prepayment thereof.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one week, two weeks or one, two, three
or six months thereafter (or such other period as is requested by
the Borrower and consented to by the Lenders and the
Administrative Agent), as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one week, two weeks or one, two, three
or six months thereafter (or such other period as is requested by
the Borrower and consented to by the Lenders and the
Administrative Agent), as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period
with respect thereto;
PROVIDED that the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(2) the Borrower may not select any Interest Period
that would extend beyond the scheduled Termination Date; and
(3) unless otherwise agreed by the Borrower, the
Required Lenders and the Administrative Agent, 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 appropriate subsequent
calendar month.
"INVESTMENT ADVISERS ACT" means the Investment Advisers Act of
1940.
"INVESTMENT COMPANY" means an "investment company" as such term
is defined in the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940.
"INVESTMENT FIRM" means any Subsidiary or other Person engaged,
directly or indirectly, primarily in the business (the "INVESTMENT
MANAGEMENT BUSINESS") of providing investment advisory, management,
distribution or administrative services to
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Funds (or investment accounts or funds which will be included as Funds
after the Borrower acquires an interest in such other Person) and in
which the Borrower, directly or indirectly, has purchased or otherwise
acquired, or has entered into an agreement to purchase or otherwise
acquire, Capital Stock or other interests entitling the Borrower,
directly or indirectly, to a share of the revenues, earnings or value
thereof.
"INVESTMENT MANAGEMENT BUSINESS" is defined in the definition of
"Investment Firm."
"LENDERS" is defined in the preamble hereto (and such term
includes the Swingline Lender).
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and
any Financing Lease or synthetic lease having substantially the same
economic effect as any of the foregoing).
"LOAN DOCUMENTS" means this Agreement, any Notes and the Pledge
Agreements.
"LOAN PARTY" means the Borrower and each Subsidiary that is a
party to a Loan Document.
"LOANS" means the Revolving Loans and the Swingline Loans.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower to perform its obligations under any Loan
Document to which it is a party or (c) the validity or enforceability
against any Loan Party of this or any of the other Loan Documents to
which it is a party or the rights or remedies of the Administrative
Agent or the Lenders hereunder or thereunder.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any Asset Sale or
Shareholder Asset Sale, the net amount equal to the aggregate amount
received (including by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise) in connection
with such Asset Sale or Shareholder Asset Sale MINUS the sum of (a)
the reasonable fees, commissions and other out-of-pocket expenses
incurred by the Borrower or any Subsidiary, as applicable, in
connection with such Asset Sale or Shareholder Asset Sale (other than
amounts payable to Affiliates of the Person making such disposition)
and (b) federal, state and local taxes incurred in connection with
such Asset Sale or Shareholder Asset Sale, whether or not payable at
such time. For purposes of the
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foregoing definition, with regard to a Subsidiary, the term "Net
Proceeds" shall include only that portion of its Net Proceeds
representing the percentage of its Net Proceeds equal to the
percentage of the Borrower's ownership interest in such Subsidiary
(or, if less in the case of any Asset Sale by a Subsidiary, the
portion to which the Borrower is entitled under any relevant Revenue
Sharing Agreement or other operating agreement with or with respect to
such Subsidiary).
"NON-CASH BASED COMPENSATION COSTS" means for any period, the
amount of non-cash expense or costs computed under ▇▇▇ ▇▇. ▇▇ and
related interpretations or FAS 123 and related interpretations, which
relate to the issuance of interests in the Borrower, any Subsidiary or
any Investment Firm.
"NON-EXCLUDED TAXES" is defined in SECTION 3.11.
"NOTE" is defined in SECTION 2.6(e).
"OPERATING CASH FLOW" is that term defined as either "Operating
Cash Flow" or "Operating Allocation" in the relevant Revenue Sharing
Agreement; PROVIDED, HOWEVER, that in the event such term is not
defined in any Relevant Sharing Agreement, Operating Cash Flow shall
mean all revenues other than Free Cash Flow (as defined in this
Agreement) for the applicable Investment Firm.
"PARTICIPANT" is defined in SECTION 10.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERCENTAGE" means for any Lender the percentage set forth under
the heading "Percentage" on SCHEDULE I hereto, as adjusted from time
to time due to changes in such Lenders' Commitment and in the
aggregate Commitments in accordance with the provisions of this
Agreement.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PLAN" means at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means, collectively, the Borrower Pledge
Agreement and the Subsidiary Pledge Agreement.
"PLEDGE AGREEMENT SUPPLEMENT" means a Pledge Agreement Supplement
substantially in the form of Annex I to EXHIBIT B-1 or B-2, as
applicable.
"PLEDGED COLLATERAL" is defined in each Pledge Agreement.
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"REFUNDED SWINGLINE LOANS" is defined in SECTION 2.8(b).
"REFUNDING DATE" is defined in SECTION 2.8(c).
"REGISTER" is defined in SECTION 10.6(d).
"REGULATION U" means Regulation U of the FRB.
"REORGANIZATION" means, with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning
of Section 4241 of ERISA.
"REPORTABLE EVENT" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section with
respect to a Plan, excluding however, such events as to which the PBGC
by regulation waived the requirements of Section 4043(a) of ERISA that
it be notified within 30 days of the occurrence of such event;
PROVIDED, HOWEVER, that a failure to meet the minimum funding standard
of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA
or Section 412(d) of the Code.
"REQUIRED LENDERS" means at any time, Lenders the Commitment
Percentages of which aggregate at least 51%.
"REQUIREMENT OF LAW" means, as to any Person, any law, treaty,
rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER" means each of the chief executive officer,
the president and any executive vice president of the Borrower or,
with respect to financial matters, the senior financial officer of the
Borrower, in each case acting singly.
"REVENUE SHARING AGREEMENT" means each agreement entered into by
the Borrower or a Subsidiary with an Investment Firm pursuant to which
a specified percentage of the revenue of such Investment Firm is
distributed among such Investment Firm's partners, shareholders or
members, PRO RATA in accordance with such partners', shareholders' or
members' ownership percentages in such Investment Firm (such
percentage being referred to in certain Revenue Sharing Agreements as
"Free Cash Flow" or "Owners' Allocation"), or any other agreement
providing for the distribution of income, revenue or assets of an
Investment Firm.
"REVOLVING LOAN" is defined in SECTION 2.1(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SECURITIES ACTS" means the Securities Act of 1933 and the
Securities Exchange Act of 1934.
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"SHAREHOLDER ASSET SALE" is defined in the definition of Asset
Sale.
"SINGLE EMPLOYER PLAN" means any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
"SUBORDINATED INDEBTEDNESS" means (a) Indebtedness of the
Borrower and/or any other Loan Party under any Subordinated Payment
Note and (b) other Indebtedness of the Borrower or any Subsidiary
which has maturities and other terms, and which is subordinated to the
obligations of the Borrower and its Subsidiaries hereunder and under
the other Loan Documents in a manner, approved in writing by the
Required Lenders.
"SUBORDINATED PAYMENT NOTES" means any unsecured notes evidencing
Indebtedness of the Borrower and/or any other Loan Party or
obligations issued to a seller in connection with an Acquisition of an
Investment Firm or in connection with an increase of the Borrower's
ownership interest in an Investment Firm, in each case as permitted
hereunder (i) for which the Borrower and/or any other Loan Party is
directly, primarily or contingently liable, (ii) the payment of the
principal of and interest on which and other obligations of the
Borrower or such other Loan Party in respect of which are subordinated
to the prior payment in full of the principal of and interest
(including post-petition interest whether or not allowed as a claim in
any proceeding) on the Loans and all other obligations and liabilities
of the Borrower or such other Loan Party to the Administrative Agent
and the Lenders hereunder, and (iii) which are generally consistent
with the terms and conditions of subordination set forth in EXHIBIT G
hereof (with any variations to such terms and conditions being subject
to approval by the Administrative Agent) or otherwise satisfactory in
form and substance to the Required Lenders. For the avoidance of
doubt, the term "Subordinated Payment Notes" includes the Subordinated
Promissory Notes issued by The Managers Funds LLC, a majority-owned
subsidiary of the Borrower, pursuant to the Purchase Agreement dated
May 22, 2000 by and among the Borrower, The Managers Funds LLC and
▇▇▇▇▇ ▇▇▇▇▇▇▇ Associates, Inc. and any contingent consideration
issuable by the Borrower in a form substantially the same as the form
of contingent consideration described in the ▇▇▇▇▇▇ Associates, LLC
Amended and Restated LLC Agreement dated August 28, 2001.
"SUBSIDIARY" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which Capital Stock
having ordinary voting power (other than Capital Stock having such
power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity is
at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"SUBSIDIARY PLEDGE AGREEMENT" means a Subsidiary Pledge Agreement
substantially in the form of EXHIBIT B-2.
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"SWINGLINE AMOUNT" means the lesser of $15,000,000 and the
aggregate amount of the Commitments.
"SWINGLINE LENDER" means Bank of America in its capacity as the
lender of the Swingline Loans, or any successor swingline lender
hereunder.
"SWINGLINE LOANS" is defined in SECTION 2.7(a).
"SWINGLINE PARTICIPATION AMOUNT" is defined in SECTION 2.8(c).
"SYNTHETIC LEASE OBLIGATION" means the monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease (including the Headquarters 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).
"TERMINATION DATE" means August 7, 2005 or any earlier date when
the Commitments hereunder are terminated.
"TOTAL INDEBTEDNESS" means at any time, the aggregate principal
amount (including capitalized interest) of all Indebtedness of the
Borrower and its Subsidiaries (including pursuant to the Loans, the
Zero-Coupon Bonds, purchase money obligations and amounts payable
under noncompetition agreements); PROVIDED that Total Indebtedness
shall not include (a) Subordinated Payment Notes, (b) Indebtedness of
the Borrower owing to any Subsidiary permitted in SECTION 7.2(k), (c)
Indebtedness of any Subsidiary owing to the Borrower or any other Loan
Party or (d) (i) 80% of the principal amount of the Feline Prides
Senior Notes until December 21, 2002, (ii) 85% of the principal amount
of the Feline Prides Senior Notes from December 22, 2002 to December
21, 2003 and (iii) 90% of the principal amount of the Feline Prides
Senior Notes from December 22, 2003 to November 30, 2004.
"TRANCHE" means the collective reference to Eurodollar Loans
having Interest Periods that began or will begin on the same date and
end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"TRANSFEREE" is defined in SECTION 10.6(f).
"TYPE" means, as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"ZERO-COUPON BONDS" means the $251,000,000 senior unsecured
convertible zero-coupon bonds due 2021 issued by the Borrower on May
7, 2001.
1.2. OTHER DEFINITIONAL AND INTERPRETIVE PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any Notes or any certificate or
other document made or delivered pursuant hereto.
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(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in SECTION 1.1 and accounting terms partly defined in
SECTION 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c) The term "including" is not limiting and means "including
without limitation."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document; and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions and
rules consolidating, amending, replacing, supplementing or interpreting such
statute or regulation.
(e) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, clause, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(f) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3. ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) 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 consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31, 2001 and the
related audited consolidated statements of income and of cash flows for the
fiscal year ended on such date, audited by PricewaterhouseCoopers LLP, except as
otherwise specifically prescribed herein.
(b) 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, the Lenders 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.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS; SWINGLINE LOANS
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2.1. COMMITMENTS. (a) Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans ("REVOLVING
LOANS") (PROVIDED that any repricing or conversion of an outstanding Revolving
Loan shall not be considered a making of a Revolving Loan) to the Borrower from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed the amount of such Lender's Commitment;
PROVIDED that no Lender shall be obligated to make a Revolving Loan if, after
giving effect to the making of such Revolving Loan, such Lender's Available
Commitment would be less than zero. During the Commitment Period the Borrower
may use the Commitments by borrowing, prepaying the Revolving Loans in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with SECTIONS
2.2 and 3.3.
2.2. PROCEDURE FOR BORROWING. The Borrower may borrow under
the Commitments during the Commitment Period on any Business Day; PROVIDED that
the Borrower shall give the Administrative Agent irrevocable written notice, in
substantially the form of EXHIBIT I hereto (which notice must be received by the
Administrative Agent prior to 11:00 a.m.,
New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Loans are to be initially Eurodollar Loans or (b) on the requested
Borrowing Date, if all of the requested Loans are to be initially ABR Loans), in
each case specifying (i) the amount to be borrowed, (ii) the requested Borrowing
Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods for such Eurodollar Loans.
Each borrowing of ABR Loans shall be in an amount equal to $1,000,000 or a whole
multiple of $100,000 in excess thereof, and each borrowing of Eurodollar Loans
shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the Administrative
Agent's Office prior to 1:00 p.m.,
New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.
The failure of any Lender to make a Revolving Loan to be made by it as part of
any borrowing shall not relieve any other Lender of its obligation to make
available its share of such borrowing.
2.3. INCREASE OF COMMITMENTS. (a) So long as no Default
exists, the Borrower shall have the right, not less than 90 days prior to the
Termination Date, to request in writing, from time to time (but not more than
five times), that the aggregate amount of the Commitments then in effect be
increased effective upon a specific date (the "INCREASE EFFECTIVE DATE") set
forth in such request (the "INCREASE REQUEST"); PROVIDED that no such increase
shall be permitted if, after giving effect thereto, the aggregate amount of the
Commitments would exceed $350,000,000 (less the amount of any previous
reductions in the Commitments pursuant to
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SECTION 2.5 or 3.2). Any such increase shall be in an incremental aggregate
amount of not less than, in the case of the first such increase, $15,000,000,
and in the case of any subsequent increase, not less than the lesser of (i)
$25,000,000 and (ii) the remainder of $350,000,000 (less the amount of any
previous reductions in the Commitments pursuant to SECTION 2.5 or 3.2) MINUS the
amount of the total aggregate Commitments then in effect (the "REQUESTED
AMOUNT") and shall increase permanently the amount of the aggregate amount of
the Commitments then in effect.
(b) If on the date (the "INCREASE RESPONSE DATE") that is 30 days
after the date of any Increase Request any Lenders or prospective Lenders elect,
in their sole discretion, to increase their Commitments (each an "INCREASING
LENDER") by an aggregate amount equal to the Requested Amount, then, subject to
the provisions of this SECTION 2.3, on the Increase Effective Date therefor,
which shall be at least five Business Days after the Increase Response Date, the
Commitments of such Increasing Lenders, and correspondingly, the aggregate
amount of the Commitments, shall be increased accordingly. Notwithstanding any
provision of this Agreement to the contrary, any notice by any Lender of its
willingness to increase its Commitment shall be revocable by such Lender in its
sole and absolute discretion at any time prior to the related Increase Effective
Date.
(c) Each increase in the Commitment of an Increasing Lender shall
be evidenced by a written instrument executed by such Increasing Lender, the
Borrower and the Administrative Agent, and shall take effect on the related
Increase Effective Date.
(d) If any Lenders or prospective Lenders shall have elected to
increase their Commitments as provided in this SECTION 2.3, then as of the
related Increase Effective Date (i) the Commitments of each Increasing Lender
shall take effect and (ii) the Commitments of the Lenders which are not
Increasing Lenders shall remain constant. In the event any Increasing Lender is
not a Lender prior to the related Increase Effective Date, such Increasing
Lender shall be subject to approval by the Borrower and the Administrative Agent
(such approval not to be unreasonably withheld) and such Increasing Lender, the
Borrower and the Administrative Agent shall execute and deliver a joinder
agreement (a "JOINDER AGREEMENT") in form and substance reasonably satisfactory
to the Administrative Agent pursuant to which such Increasing Lender shall
become a party to this Agreement.
(e) From and after any Increase Effective Date, the Borrower and
the Administrative Agent shall cooperate in making conversions of the Eurodollar
Loans from one interest rate basis to another and in selecting Interest Periods
to be applicable thereto in order, during a reasonable period following the
Increase Effective Date, to make the Loans of each Lender ratable (based on
their respective Commitment Percentages after giving effect to the increased
Commitments hereunder) in the various Tranches.
2.4. COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the Commitment Fee Rate on the average daily
amount of the Available Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
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June, September and December and on the Termination Date, commencing on the
first of such dates to occur after the date hereof.
2.5. TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower
shall have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the aggregate amount of the Commitments to an amount that is not less
than the aggregate principal amount of all outstanding Loans. Any such reduction
shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall
reduce permanently the Commitments then in effect.
2.6. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan of such
Lender on the Termination Date (or such earlier date on which the Loans become
due and payable pursuant to SECTION 8). The Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in SECTION 3.5.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to SECTION 10.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable with respect to each Eurodollar Loan, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to SECTION 2.6(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Loans of such
Lender, substantially in the form of EXHIBIT A with appropriate insertions as to
date and principal amount (a "NOTE").
2.7. SWINGLINE LOANS.
(a) Subject to the terms and conditions hereof, the Swingline
Lender may (in its sole and absolute discretion) make a portion of the
credit otherwise available to the
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Borrower under the Commitments available from time to time during the
Commitment Period by making swing line loans ("SWINGLINE LOANS") to
the Borrower; PROVIDED that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Amount and (ii) the Borrower shall not request, and the Swingline
Lender shall not make, any Swingline Loan if, after giving effect to
the making of such Swingline Loan, the aggregate amount of the
Available Commitments would be less than zero. During the Commitment
Period, the Borrower may borrow, repay, and reborrow Swingline Loans,
subject to the agreement of the Swingline Lender and in accordance
with the terms and conditions hereof. All Swingline Loans shall be ABR
Loans.
(b) The Borrower shall repay all outstanding Swingline Loans on
the Termination Date.
2.8. PROCEDURE FOR SWINGLINE BORROWING; REFUNDING OF SWINGLINE
LOANS.
(a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender and the
Administrative Agent irrevocable telephonic notice confirmed promptly
in writing (which telephonic notice must be received by the Swingline
Lender and the Administrative Agent not later than 1:00 p.m.,
New York
City time, on the proposed Borrowing Date), specifying (i) the amount
to be borrowed and (ii) the requested Borrowing Date (which shall be a
Business Day during the Commitment Period). Each Swingline Loan shall
be in an amount equal to $500,000 or a whole multiple of $100,000 in
excess thereof. Unless the Swingline Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 1:15 p.m.,
New York City time, on
the proposed Borrowing Date (A) directing the Swingline Lender not to
make such Swingline Loan as a result of the limitations set forth in
SECTION 2.7(a)(ii) or (B) that one or more of the applicable
conditions specified in SECTION 5 is not then satisfied, then, subject
to the terms and conditions hereof, the Swingline Lender may (in its
sole and absolute discretion), not later than 3:00 p.m.,
New York City
time, on the proposed Borrowing Date, make available to the
Administrative Agent at the Administrative Agent's Office an amount in
immediately available funds equal to the amount of the Swingline Loan
to be made by the Swingline Lender. The Administrative Agent shall
make the proceeds of any such Swingline Loan available to the Borrower
by depositing such proceeds in the account of the Borrower with the
Administrative Agent on such Borrowing Date in immediately available
funds.
(b) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which
hereby irrevocably authorizes the Swingline Lender to act on its
behalf), request each Lender to make, and each Lender hereby agrees to
make, an ABR Loan, in an amount equal to such Lender's Commitment
Percentage of the aggregate amount of the Swingline Loans (the
"REFUNDED SWINGLINE LOANS") outstanding on the date of such notice, to
repay the Swingline Lender. Such request shall be made in writing and
in accordance with the requirements of SECTION 2.2, without regard to
the minimum and multiples specified therein for the principal amount
of ABR Loans. Each Lender shall make the amount of such Loan available
to the Administrative Agent at the Administrative Agent's Office in
immediately available
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funds, not later than 1:00 p.m.
New York City time, on the Borrowing
Date specified by the Swingline Lender. The proceeds of such Loans
shall be immediately made available by the Administrative Agent to the
Swingline Lender for application by the Swingline Lender to the
repayment of the Refunded Swingline Loans. The Borrower irrevocably
authorizes the Swingline Lender to charge the Borrower's accounts with
the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded
Swingline Loans to the extent amounts received from the Lenders are
not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Loan would have otherwise been made
pursuant to SECTION 2.8(b), one of the events described in SECTION
8(f) shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the
Administrative Agent in its sole discretion, Loans may not be made as
contemplated by SECTION 2.8(b), each Lender shall, on the date such
Loan was to have been made pursuant to the notice referred to in
SECTION 2.8(b) (the "REFUNDING DATE"), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the "SWINGLINE PARTICIPATION
AMOUNT") equal to (i) such Lender's Commitment Percentage TIMES (ii)
the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Loans.
(d) Whenever, at any time after the Swingline Lender has received
from any Lender such Lender's Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline
Loans, the Swingline Lender will distribute to such Lender its
Swingline Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded and, in the
case of principal and interest payments, to reflect such Lender's PRO
RATA portion of such payment if such payment is not sufficient to pay
the principal of and interest on all Swingline Loans then due);
PROVIDED that in the event that such payment received by the Swingline
Lender is required to be returned, such Lender will return to the
Swingline Lender any portion thereof previously distributed to it by
the Swingline Lender.
(e) Each Lender's obligation to make the Loans referred to in
SECTION 2.8(b) and to purchase participating interests pursuant to
SECTION 2.8(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or the Borrower
may have against the Swingline Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the existence of a Default or
the failure to satisfy any of the other conditions specified in
SECTION 5; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower; (iv) any breach of this Agreement or any
other Loan Document by any Loan Party or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO THE LOANS
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3.1. OPTIONAL PREPAYMENTS. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice to the Administrative Agent, at least four
Business Days' prior to the date of prepayment if all or any part of the Loans
to be prepaid are Eurodollar Loans, and at least one Business Day prior to the
date of prepayment if all of the Loans to be prepaid are ABR Loans, specifying
the date and amount of prepayment and whether the prepayment is of Eurodollar
Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to SECTION 3.12.
Partial prepayments of ABR Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof, and partial
prepayments of Eurodollar Loans shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
3.2. MANDATORY COMMITMENT REDUCTIONS; MANDATORY PREPAYMENTS.
(a) Concurrently with any Asset Sale or Shareholder Asset Sale if, after giving
effect to such Shareholder Asset Sale, the Borrower does not continue to hold,
directly or indirectly, in excess of a 50% ownership interest in the relevant
Subsidiary or Investment Firm, the aggregate amount of the Commitments shall be
permanently reduced by the excess (rounded down, if necessary, to an integral
multiple of $5,000,000), if any, of the aggregate amount of the Net Proceeds of
all Asset Sales and all such Shareholder Asset Sales made after the Closing Date
(excluding any portion of such amount previously applied to reduce the
Commitments pursuant to this SECTION 3.2) OVER $200,000,000; PROVIDED that the
requirements of this CLAUSE (a) shall not apply to Net Proceeds from any Asset
Sale or Shareholder Asset Sale to the extent that the Borrower notifies the
Administrative Agent prior to or concurrently with the receipt of such Net
Proceeds that such Net Proceeds are intended to be used, and such Net Proceeds
are in fact used, to purchase similar assets within 180 days after such Asset
Sale or Shareholder Asset Sale.
(b) If, as a result of the reduction of the Commitments pursuant
to CLAUSE (a), the aggregate principal amount of the Loans exceeds the aggregate
amount of the Commitments, the Borrower shall immediately prepay Loans in the
amount of such excess. All prepayments of Loans pursuant to this SECTION 3.2(b)
shall be made without premium or penalty (but shall be subject to SECTION 3.12)
and shall be accompanied by accrued and unpaid interest on the principal amount
being prepaid. All such prepayments shall be applied as directed in writing by
the Borrower or, in the absence of such direction, FIRST, to prepay Swingline
Loans until the Swingline Loans are paid in full, SECOND, to prepay ABR Loans
until the ABR Loans are paid in full and, THIRD, to prepay Eurodollar Loans.
3.3. CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable written
notice, substantially in the form of EXHIBIT J hereto, of such election;
PROVIDED that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time to convert ABR Loans (other than ABR Loans which are Swingline
Loans) to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable written notice, substantially in the form of
EXHIBIT J hereto, of such election. Any
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such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein; PROVIDED that no Loan may be converted into a Eurodollar Loan
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have determined that such a conversion is not
appropriate.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving written notice, substantially in the form of EXHIBIT J hereto,
to the Administrative Agent, in accordance with the applicable provisions of the
term "Interest Period" set forth in SECTION 1.1, of the length of the next
Interest Period to be applicable to such Loans; PROVIDED that no Eurodollar Loan
may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a continuation is not appropriate; and PROVIDED, FURTHER,
that if the Borrower shall fail to give such notice or if such continuation is
not permitted such Eurodollar Loans shall be automatically converted to ABR
Loans on the last day of such then expiring Interest Period.
3.4. MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 10 Eurodollar Tranches outstanding at any time.
3.5. INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
PLUS the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal
to the ABR PLUS the Applicable Margin.
(c) If any amount payable by the Borrower under any Loan Document
is not paid when due (without regard to any applicable grace period), 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. Furthermore,
upon the request of the Required Lenders, at any time an Event of Default
exists, the Borrower shall pay interest on the Loans at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable laws.
(d) Interest shall be payable in arrears on each Interest Payment
Date and on the Termination Date; PROVIDED that interest accruing pursuant to
SECTION 3.5(c) shall be payable from time to time on demand.
3.6. COMPUTATION OF INTEREST AND FEES. (a) Interest based on
Bank of America's "prime rate" shall be calculated on the basis of a year of 365
(or, if applicable, 366)
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days and for the actual number of days elapsed. All other interest and all fees
shall be calculated on the basis of a year of 360 days and for the actual number
of days elapsed. The Administrative Agent shall as soon as practicable notify
the Borrower and the Lenders of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the ABR or the
Eurodollar Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in the ABR or the Eurodollar
Reserve Percentage.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower or any Lender,
deliver to the Borrower or such Lender a statement showing the quotations used
by the Administrative Agent in determining any interest rate pursuant to SECTION
3.5(a).
3.7. INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by the
Required Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the affected Lenders as soon as practicable thereafter. If such
notice is given, (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any ABR Loans that were
to have been converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
3.8. PRO RATA TREATMENT AND PAYMENTS. (a) Except as provided
in SECTION 2.3(e), each borrowing by the Borrower from the Lenders hereunder
(other than borrowings of Swingline Loans), each payment by the Borrower on
account of any commitment fee hereunder and any reduction of the Commitments of
the Lenders shall be made PRO RATA according to the respective Commitment
Percentages of the Lenders. Subject to SECTIONS 2.3(e) and 2.8(d), each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made PRO RATA according to the respective
outstanding principal amounts of the Loans then held by the Lenders; PROVIDED
that payments in respect of Swingline Loans that have
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not been refunded with Revolving Loans pursuant to SECTION 2.8(b) shall be for
the account of the Swingline Lender only (subject to the Swingline Lender's
obligation to share with any participants in the Swingline Loans). All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders at
the Administrative Agent's Office, in Dollars and in immediately available funds
(and funds received after that time shall be deemed to have been received on the
next succeeding Business Day). The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt (and if such payment is received
prior to 12:00 noon, on the same day) in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, the due
date for such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension and such extension of time shall
in such case be included in the computation of payment of interest or fees, as
the case may be.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its portion of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's portion of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans
hereunder, on demand, from the Borrower.
(c) In the event that a Lender fails to make available after a
period of three Business Days to the Administrative Agent its portion of a
borrowing, the Borrower may, upon not less than five Business Days prior
irrevocable written notice to the Administrative Agent, immediately terminate
the Commitment of such Lender, and designate an acceptable replacement Lender
(which may be one of the other Lenders) to purchase at par all of the Lender's
interests in accordance with the provisions of SECTION 10.6(c). Any Lender being
so replaced by the Borrower agrees to transfer its interest in this Agreement
and, if applicable, its Note, to the substitute Lender pursuant to
SECTION 10.6(c); PROVIDED that concurrently with such transfer, such Lender so
substituted shall be paid all amounts owing to it hereunder and all costs
reasonably determined by it to be attributable to such transfer. Notwithstanding
the foregoing, the Lender being replaced shall not be deemed to be released from
any of its rights or obligations under any Loan Document (including SECTION 9.7)
for actions taken or failed to be taken by it prior to the date of such
substitution. Notwithstanding any of the provisions of this SECTION 3.8, this
subsection shall not apply to the Swingline Loans.
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3.9. ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to SECTION 3.12.
3.10. REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
SECTION 3.11 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of agreeing to make or
maintain, or of making, converting into, continuing or maintaining, Eurodollar
Loans or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
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be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this SECTION 3.10, it shall promptly notify the Borrower
(with a copy to the Administrative Agent) of the event by reason of which it has
become so entitled; PROVIDED that no additional amount shall be payable under
this SECTION 3.10 for a period longer than one year prior to such notice to the
Borrower. A certificate as to any additional amounts payable pursuant to this
SECTION 3.10 submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive for a period of one year after the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.11. TAXES. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. In addition, if any Non-Excluded Taxes are directly imposed on or
asserted against the Administrative Agent or any Lender with respect to any
payment received by the Administrative Agent or such Lender hereunder, the
Administrative Agent or such Lender may pay such Non-Excluded Taxes and the
Borrower will promptly pay such additional amount (including any penalty,
interest or expense) as is necessary in order that the net amount received by
the Administrative Agent or such Lender after the payment of such Non-Excluded
Taxes (including any taxes on such additional amounts) shall equal the amount
such Person would have received had such Non-Excluded Taxes not been imposed or
asserted. Notwithstanding the foregoing two sentences, the Borrower shall not be
required to increase any amount payable, or pay any additional amount, under
this SECTION 3.11(a) to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender fails to comply with
the requirements of SECTION 3.11(b). Whenever any Non-Excluded Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the
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Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection shall survive for
a period of one year the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative
Agent two duly completed copies of United States Internal Revenue
Service Form W-8ECI or Form W-8BEN, or successor applicable form, as
the case may be;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Administrative Agent;
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower and the Administrative
Agent. Such Lender shall certify that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to SECTION 8.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection; PROVIDED that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
3.12. INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so prepaid, borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to prepay, borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would
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have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
3.13. CHANGE OF LENDING OFFICE. Each Lender agrees that if it
makes any demand for payment under SECTION 3.10 or 3.11(a), or if any adoption
or change of the type described in SECTION 3.9 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
unreasonably disadvantageous to it, as determined in its sole discretion) to
designate a different lending office if the making of such a designation would
reduce or obviate the need for the Borrower to make payments under SECTION 3.10
or 3.11(a), or would eliminate or reduce the effect of any adoption or change
described in SECTION 3.9.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1. FINANCIAL CONDITION. The Borrower has heretofore
furnished to each Lender copies of (i) the audited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31, 2001 and the
related audited consolidated statements of income and of cash flows for the
fiscal year ended on such date, audited by PricewaterhouseCoopers LLP and (ii)
the unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at March 31, 2002 and the related unaudited consolidated
statements of income and of cash flows for the three-month period ended on such
date, certified by a Responsible Officer (the "FINANCIAL STATEMENTS"). The
Financial Statements present fairly, in all material respects, the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at
December 31, 2001 and March 31, 2002 and present fairly, in all material
respects, the consolidated results of their operations and their consolidated
cash flows for the periods then ended (subject to normal year-end audit
adjustments and the absence of footnote disclosure). The Financial Statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the period involved. Except
as set forth on SCHEDULE 4.1, neither the Borrower nor any of its consolidated
Subsidiaries had, at December 31, 2001 or at the date hereof, any material
Guarantee Obligation, material contingent liability or material liability for
taxes, or any material long-term lease or unusual material forward or long-term
commitment, including any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto. Except as set forth on SCHEDULE 4.1, during the period from December
31, 2001 to and including the date hereof there has been no sale, transfer or
other disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
its Subsidiaries as of December 31, 2001.
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4.2. NO CHANGE. (a) From December 31, 2001, except as set
forth in the Financial Statements and except as set forth on SCHEDULE 4.2, there
has been no development or event which has had or could have a Material Adverse
Effect, and (b) except as set forth on SCHEDULE 4.2, during the period from
December 31, 2001 to and including the date hereof, no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any
Subsidiary.
4.3. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
Borrower and each Subsidiary (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its material
properties, to lease the material properties it operates as lessee and to
conduct the businesses in which it is currently engaged, (c) is duly qualified
as a foreign corporation, partnership or limited liability company, as
applicable, and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect and (d) is in compliance
with its certificate of incorporation and by-laws or other similar
organizational or governing documents and with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
have a Material Adverse Effect.
4.4. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. The Borrower has the
corporate power and authority, and the legal right to borrow hereunder and has
taken all necessary corporate action to authorize such borrowings on the terms
and conditions of this Agreement and any Notes. No consent or authorization of,
filing with, notice to or other act by or in respect of any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents against any Loan Party that is a party
thereto; PROVIDED that the Administrative Agent's rights under the Pledge
Agreements are subject to the terms and provisions thereof. This Agreement has
been, and each other Loan Document will be when delivered, duly executed and
delivered by each Loan Party that is party thereto. This Agreement constitutes,
and each other Loan Document when delivered will constitute, a legal, valid and
binding obligation of each Loan Party which is a party thereto, enforceable
against such Loan Party in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.5. NO LEGAL BAR. The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
certificate of incorporation and by-laws or other similar organizational or
governing documents, Requirement of Law or Contractual Obligation of the
Borrower or of any Subsidiary, except for such violations of Requirements of Law
or Contractual Obligations which could not, singly or in the aggregate,
reasonably be expected to
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have a Material Adverse Effect, and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such organizational or governing document, Requirement
of Law or Contractual Obligation, except pursuant to this Agreement and the
other Loan Documents.
4.6. NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or against any of its or their respective properties or revenues
which could reasonably be expected to have a Material Adverse Effect.
4.7. NO DEFAULT. Neither the Borrower nor any Subsidiary is in
default under or with respect to any of its Contractual Obligations in any
respect which could have a Material Adverse Effect. 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.
4.8. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and
each Subsidiary has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property is subject to any Lien except as permitted by SECTION 7.3.
4.9. TAXES. Each of the Borrower and each Subsidiary has filed
or caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed or has timely filed a request for an
extension of such filing and has paid all taxes shown to be due and payable on
said returns or extension requests or on any assessments made against it or any
of its property and, except as set forth on SCHEDULE 4.9, all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower
and as to any of which the failure to pay would not have a Material Adverse
Effect); no tax Lien has been filed, and, to the knowledge of the Borrower, no
material claim is being asserted, with respect to any such tax, fee or other
charge.
4.10. FEDERAL REGULATIONS. (a) None of the Pledged Collateral
consists of "margin stock" (within the meaning of Regulation U). "Margin stock"
(within the meaning of Regulation U) constitutes less than 25% of the value of
those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale or pledge or any similar restriction hereunder. If requested
by any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U.
(b) The Borrower is not subject to regulation under any Federal
or State statute or regulation (other than Regulation X of the FRB) which limits
its ability to incur Indebtedness.
4.11. ERISA. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and
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the Code. The present value of all accrued benefits under any Single Employer
Plan maintained by the Borrower or any Commonly Controlled Entity (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. There are no Multiemployer Plans. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan.
4.12. INVESTMENT COMPANY ACT; INVESTMENT ADVISERS ACT.
(a) Neither the Borrower nor any Subsidiary or other Investment Firm is, or
after giving effect to any Acquisition will be, an "investment company" within
the meaning of the Investment Company Act.
(b) Each Subsidiary and each other Investment Firm is, to the
extent required thereby, duly registered as an investment adviser under the
Investment Advisers Act, except to the extent the failure to be so registered
could not reasonably be expected to have a Material Adverse Effect. On the date
hereof, the Borrower is not an "investment adviser" within the meaning of the
Investment Advisers Act. Each Fund which is sponsored by any Subsidiary or other
Investment Firm and which is required to be registered as an "investment
company" under the Investment Company Act is duly registered as such thereunder,
except to the extent the failure to be so registered could not reasonably be
expected to have a Material Adverse Effect.
(c) The Borrower is not required to be registered as a
broker-dealer under the Securities Acts (and each Subsidiary and other
Investment Firm required to be so registered is so duly registered), except to
the extent the failure to be so registered could not reasonably be expected to
have a Material Adverse Effect.
(d) Each of the Borrower, each Subsidiary and each other
Investment Firm is duly registered, licensed or qualified as an investment
adviser or broker-dealer in each State of the United States where the conduct of
its business requires such registration, licensing or qualification and is in
compliance in all material respects with all Federal and State laws requiring
such registration, licensing or qualification, except to the extent the failure
to be so registered, licensed or qualified or to be in such compliance will not
have, in the case of Federal laws, or could not reasonably be expected to have,
in the case of State laws, a Material Adverse Effect.
4.13. INVESTMENT ADVISORY AGREEMENTS. Each of the investment
advisory agreements, distribution agreements and shareholder or other servicing
contracts to which the Borrower, any Subsidiary or other Investment Firm is a
party is a legal, valid and binding obligation of the parties thereto
enforceable against such parties in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law), except for failures
which individually or in the aggregate could not reasonably be expected to have
a Material Adverse Effect; and none of the Borrower, any Subsidiary or any other
Investment Firm is in breach or violation of or in default under any such
agreement or contract in any material respect which individually or in the
aggregate could reasonably be expected to have
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a Material Adverse Effect. The parties hereto understand that all clients have
the right to terminate such investment advisory agreements at will.
4.14. SUBSIDIARIES AND OTHER OWNERSHIP INTERESTS. The
Subsidiaries listed on SCHEDULE 4.14 hereto constitute the only Subsidiaries of
the Borrower as at the date hereof. The Borrower has as at the date hereof,
directly or indirectly, an equity or other ownership interest in each Investment
Firm and each other Person listed on SCHEDULE 4.14; and other than as set forth
on such schedule, the Borrower has no such interest, directly or indirectly, in
any other Person.
4.15. PURPOSE OF LOANS. The proceeds of the Loans shall be used
by the Borrower (i) to refinance loans outstanding under the Existing Facility,
(ii) for working capital, capital expenditures and other general corporate
purposes (including to make payments on the Zero-Coupon Bonds and any securities
exchanged therefor and to make interest payments in respect of the Feline Prides
Senior Notes), (iii) to make Acquisitions and other investments (including
acquisitions of additional Capital Stock in Subsidiaries and Affiliates of the
Borrower) and (iv) to pay fees and expenses to be incurred in connection with
the foregoing and in connection with the execution and delivery of the Loan
Documents.
4.16. ACCURACY AND COMPLETENESS OF INFORMATION. To the best of
the Borrower's knowledge, the documents furnished and the statements made in
writing to the Lenders by or on behalf of the Borrower in connection with the
negotiation, preparation or execution of this Agreement or any of the other Loan
Documents, taken as a whole, do not contain any untrue statement of fact
material to the credit worthiness of the Borrower or omit to state any such
material fact necessary in order to make the statements contained therein not
misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders prior to the date hereof.
4.17. PLEDGE AGREEMENTS. The provisions of the Pledge
Agreements are effective to create in favor of the Administrative Agent a legal,
valid and enforceable security interest in all right, title and interest of the
Loan Party that is party thereto in the collateral covered thereby and all
necessary actions have been taken to create a first priority perfected Lien in
such collateral.
SECTION 5. CONDITIONS PRECEDENT
5.1. CONDITIONS TO INITIAL LOANS. The agreement of each Lender
to make its initial Loan is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loan, of the following conditions
precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender and (ii)
the Pledge Agreements, each executed and delivered by a duly
authorized officer of the parties thereto, with a counterpart or a
conformed copy for each Lender.
(b) RELATED AGREEMENTS. The Administrative Agent shall have
received true and correct copies of each of the existing Revenue
Sharing Agreements and any purchase
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agreements executed in connection with an Acquisition or proposed
Acquisition (either of which is expected to occur on or after the
Closing Date), and such other documents or instruments as may be
reasonably requested by the Administrative Agent (including a copy of
any debt instrument, security agreement or other material contract to
which the Borrower or any Subsidiary may be a party).
(c) NOTES. The Administrative Agent shall have received, for the
account of each Lender that has requested the same, a Note made by the
Borrower conforming to the requirements of this Agreement, and
executed by a duly authorized officer of the Borrower.
(d) BORROWER CERTIFICATE. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of EXHIBIT
C, with appropriate insertions and attachments, satisfactory in form
and substance to the Administrative Agent, executed by two Responsible
Officers.
(e) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy
of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors (or similar governing
body) of each Loan Party authorizing (i) the execution, delivery and
performance of the Loan Documents to which it is a party, (ii) in the
case of the Borrower only, the borrowings contemplated hereunder and
(iii) the granting by it (to the extent applicable) of the Liens
created pursuant to the Pledge Agreements, certified by the Secretary
or an Assistant Secretary of such Loan Party as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(f) INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Closing Date, as to the incumbency and signature
of the officers of such Loan Party executing any Loan Document,
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of such Loan Party.
(g) CORPORATE DOCUMENTS. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws (or similar
organizational documents) of each Loan Party, certified as of the
Closing Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary of such Loan Party.
(h) FEES. All fees payable by the Borrower to the Administrative
Agent, the Arranger and any Lender on or prior to the Closing Date
pursuant to this Agreement or pursuant to the Commitment Letter and
Fee Letter, each dated April 18, 2002, among Bank of America, the
Arranger and the Borrower shall have been paid in full, in each case
in the amounts and on the dates set forth herein or therein.
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(i) ATTORNEY COSTS. The Administrative Agent shall have received
evidence of payment by the Borrower of all Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney
Costs 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).
(j) LEGAL OPINION. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of
▇▇▇▇▇▇▇ Procter LLP, counsel to the Borrower and its Subsidiaries,
substantially in the form of EXHIBIT D. Such legal opinion shall cover
such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(k) PLEDGED STOCK AND OTHER EQUITY INTERESTS; TRANSFER POWERS.
The Administrative Agent shall have received all certificates
representing the shares of Capital Stock pledged pursuant to the
Pledge Agreements, together with an undated transfer power, in form
and substance satisfactory to the Administrative Agent, for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof.
(l) ACTIONS TO PERFECT LIENS. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including the
filing of duly executed financing statements on form UCC-1, necessary
or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by the Pledge Agreements shall have been completed.
(m) LIEN SEARCHES. The Administrative Agent shall have received
the results of a recent search, by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax
lien filings which may have been filed with respect to personal
property of the Borrower and the other Loan Parties, and the results
of such search shall be satisfactory to the Administrative Agent.
(n) EXISTING FACILITY. The Administrative Agent shall have
received evidence satisfactory to it that all accrued but unpaid fees
payable and all principal of and accrued but unpaid interest on any
loans made under the Existing Facility shall be paid in full from the
proceeds of the first advance hereunder and that the Existing Facility
shall thereupon be terminated and that all Liens securing the
obligations under the Existing Facility have been, or concurrently
with the Closing Date will be, released.
5.2. CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan requested to be made by it on any date (including its initial Loan
but excluding any repricing or conversion of any then outstanding Loan) is
subject to the satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date; PROVIDED
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that (i) representations and warranties made with reference to a
specific date shall remain true and correct as of such date only and
(ii) representations and warranties shall not be required to remain
true to the extent changes have resulted from actions permitted
hereunder.
(b) NO DEFAULT. No Default shall have occurred and be continuing
on such date or after giving effect to the Loans requested to be made
on such date.
(c) NOTICE OF BORROWING. The Administrative Agent shall have
received a notice of borrowing pursuant to SECTION 2.2 (or in the case
of Swingline Loans, pursuant to SECTION 2.8).
(d) USE OF PROCEEDS. A Responsible Officer shall have delivered
to the Administrative Agent a certificate to the effect that the
proceeds of such Loan will be used in accordance with SECTION 4.15 and
specifying in reasonable detail the proposed use of the proceeds
thereof; PROVIDED that with respect to borrowings of Swingline Loans,
such information may be given by telephone and confirmed promptly in
writing.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this SECTION 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Borrower shall and (except
in the case of delivery of financial information, reports and notices) shall
cause each of its Subsidiaries to:
6.1. FINANCIAL STATEMENTS. Furnish to the Administrative Agent
(which shall promptly furnish to the other Lenders):
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, copies of the
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such year and the related consolidated
and consolidating statements of income and retained earnings and of
cash flows for such year, and setting forth in each case in
comparative form the figures for the previous year and, in the case of
the consolidated statements only, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, copies of the unaudited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as
at the end of such quarter and the related unaudited consolidated and
consolidating statements of income and retained earnings and of cash
flows for such quarter and the portion of the fiscal year through the
end of such quarter, and setting forth
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in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (subject, in the case of interim financial statements, to year end
adjustments and the absence of footnotes).
6.2. CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent (which shall promptly furnish to the other Lenders):
(a) concurrently with the delivery of the financial statements
referred to in SECTION 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in SECTIONS 6.1(a) and (b), (i) a duly completed
Compliance Certificate signed by a Responsible Officer (A) stating
that, to the best of such Officer's knowledge, no Default exists,
except as specified in such certificate; (B) containing a computation
of each of the financial ratios and restrictions set forth in SECTION
7.1; and (C) describing in reasonable detail any material change in
accounting policies or financial reporting practices by the Borrower
or any Subsidiary and (ii) a listing for each Investment Firm of its
aggregate assets under management as of the end of the period covered
by such financial statements;
(c) within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) within five Business Days after the consummation of any
Acquisition of a new Investment Firm for which more than $5,000,000 in
aggregate consideration was paid (including any non-cash
consideration), (A) copies of the most recent audited (and, if later,
or, if audited statements are not available, unaudited) financial
statements of the Investment Firm which is the subject of such
Acquisition, (B) copies of the purchase agreement or other acquisition
document (including any Revenue Sharing Agreement) executed or to be
executed by the Borrower or any Subsidiary in connection with such
Acquisition, (C) an unaudited PRO FORMA consolidated balance sheet of
the Borrower and its Subsidiaries as at a recent date but prepared as
though the closing of such Acquisition had occurred on or prior to
such date and related PRO FORMA calculations, indicating compliance on
a PRO FORMA basis as at such date and for the periods then ended with
the financial covenants set forth in SECTION 7.1 and (D) a copy of the
most recent Form ADV, if any, filed under the Investment Advisers Act
in respect to any Investment Firm which is the subject of such
Acquisition;
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(e) concurrently with the delivery of the financial statements
referred to in SECTIONS 6.1(a) and (b), with respect to the
consummation of any Acquisition during the most recently ended fiscal
quarter of the Borrower of a new Investment Firm for which no more
than $5,000,000 in aggregate consideration was paid (including any
non-cash consideration), (A) copies of the most recent audited (and,
if later, or, if audited statements are not available, unaudited)
financial statements of the Investment Firm which is the subject of
such Acquisition, (B) copies of the purchase agreement or other
acquisition document (including any Revenue Sharing Agreement)
executed or to be executed by the Borrower or any Subsidiary in
connection with such Acquisition, (C) an unaudited PRO FORMA
consolidated balance sheet of the Borrower and its Subsidiaries as at
a recent date but prepared as though the closing of such Acquisition
had occurred on or prior to such date and related PRO FORMA
calculations, indicating compliance on a PRO FORMA basis as at such
date and for the periods then ended with the financial covenants set
forth in SECTION 7.1 and (D) a copy of the most recent Form ADV, if
any, filed under the Investment Advisers Act in respect to any
Investment Firm which is the subject of such Acquisition;
(f) concurrently with the delivery of the financial statements
referred to in SECTIONS 6.1(a) and (b), notice of the consummation of
any Acquisition of additional Capital Stock of an existing Investment
Firm during the most recently ended fiscal quarter of the Borrower;
(g) promptly, such additional financial and other information and
documents (including a copy of any debt instrument, security agreement
or other material contract to which the Borrower or any Subsidiary may
be party) as any Lender may, through the Administrative Agent, from
time to time reasonably request.
Documents required to be delivered pursuant to SECTION 6.1(a) or (b)
or SECTION 6.2(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto, on the Borrower's
website on the Internet at the website address listed on SCHEDULE I; or (ii) on
which such documents are posted on the Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or a website sponsored by the Administrative Agent); PROVIDED that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each Lender
of the posting of any such documents and immediately following such notification
the Borrower shall provide to the Administrative Agent by electronic mail
electronic versions (I.E., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by SECTION 6.2(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
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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.
6.3. PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except (i) where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or the applicable Subsidiary, as the case
may be, and (ii) where the failure to do so could not have a Material Adverse
Effect.
6.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now conducted and
purported to be conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
rights, registrations, licenses, privileges and franchises necessary or
desirable in the normal conduct of its business (including all such
registrations under the Investment Advisers Act and all material investment
advisory agreements, distribution agreements and shareholding and other
administrative servicing contracts) except as otherwise permitted pursuant to
SECTION 7.5 and except for failures which individually and in the aggregate
could not reasonably be expected to have a Material Adverse Effect; comply, and
to the extent reasonably within its control, cause each Investment Firm and Fund
(which is sponsored by an Investment Firm) to comply, with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.5. MAINTENANCE OF PROPERTY; INSURANCE. Keep all property
useful and necessary in its business in good working order and condition, except
where the failure to do so would not have a Material Adverse Effect; maintain
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business, except where the failure to do so would not have a Material
Adverse Effect, and furnish to the Administrative Agent, upon request, full
information as to the insurance carried.
6.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct
entries, in all material respects in conformity with all Requirements of Law and
sufficient to permit the preparation of financial statements in accordance with
GAAP, shall be made of all dealings and transactions in relation to its business
and activities, except, in the case of Requirements of Law, where the failure to
do so would not have a Material Adverse Effect; and permit representatives of
the Administrative Agent or any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired and upon at least
three days prior notice or such lesser period of time as may be acceptable to
the Borrower or the relevant Subsidiary, as the case may be, and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants (PROVIDED
that with respect to Subsidiaries, other than during the existence of a Default,
the Borrower shall have complied with this obligation if it shall
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have used its commercially reasonable efforts to cause its Subsidiaries to allow
the Administrative Agent and/or the applicable Lender pursuant to the foregoing
terms and conditions to visit and inspect the properties of such Subsidiaries
and examine and make abstracts from any of the books and records of such
Subsidiaries and to discuss the business, operations, properties and financial
and other condition of such Subsidiaries with officers and employees of such
Subsidiaries and with their independent certified public accountants).
6.7. NOTICES. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any Subsidiary or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any Subsidiary and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
Subsidiary or any "affiliated person" of the Borrower or any
Subsidiary within the meaning of the Investment Company Act in which
(i) the amount involved is $7,500,000 or more and not covered by
insurance or (ii) injunctive or similar relief is sought and which, in
the case of this CLAUSE (ii), could reasonably be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan;
(e) any suspension or termination of the registration of any
Subsidiary or other Investment Firm as an investment adviser under the
Investment Advisers Act, or of any registration as a broker-dealer
under the Securities Acts or under any applicable state statute which
is material to the business thereof, or any cancellation or expiration
without renewal of any investment advisory agreement, distribution
agreement or shareholder or other administrative servicing contract to
which the Borrower or any Subsidiary or other Investment Firm is a
party the revenues under which have exceeded in the most recent fiscal
year of the Borrower or such Investment Firm, as the case may be,
$10,000,000;
(f) any event which could reasonably be expected to have a
Material Adverse Effect on the Borrower and its Subsidiaries taken as
a whole;
(g) any public announcement by ▇▇▇▇▇'▇ or S&P of any change in
the Debt Rating; and
(h) the creation or acquisition of a new Subsidiary.
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Each notice pursuant to this SECTION 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto, if any.
6.8. STOCK PLEDGES. Promptly upon the consummation of the
Acquisition of an Investment Firm or the formation of any new Subsidiary,
execute and deliver or cause to be executed and delivered to the Administrative
Agent a Pledge Agreement Supplement with respect to the pledge of the Capital
Stock of such Investment Firm or new Subsidiary, held directly or indirectly
(through a wholly-owned Subsidiary) by the Borrower, in form and substance
reasonably satisfactory to the Administrative Agent, together with evidence in
form and substance reasonably satisfactory to the Administrative Agent that all
deliveries, filings, recordings, registrations and other actions, including the
delivery of any certificates representing such Capital Stock, together, in the
case of stock certificates, with an undated transfer power, in form and
substance reasonably satisfactory to the Administrative Agent, for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof, and the filing of duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by such Pledge Agreement Supplement shall have been completed.
Notwithstanding the foregoing, neither the Borrower nor any Subsidiary shall be
required to pledge to the Administrative Agent more than 65% of the Capital
Stock of any foreign Subsidiary.
6.9. GUARANTEES. Promptly after any Person becomes a
wholly-owned Subsidiary of the Borrower (and in any event within 10 days), cause
such wholly-owned Subsidiary to (a) become a guarantor by executing and
delivering to the Administrative Agent a counterpart of the Subsidiary Pledge
Agreement or such other document as the Administrative Agent shall deem
appropriate for such purpose, and (b) deliver to the Administrative Agent
documents of the types referred to in SECTIONS 5.1(e), (f) and (g) and, if
requested by the Administrative Agent, a favorable opinion of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in CLAUSE (a)), all
in form, content and scope reasonably satisfactory to the Administrative Agent.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Closing Date
and so long as the Commitments remain in effect or any amount is owing to any
Lender or the Administrative Agent hereunder or under any other Loan Document,
the Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly:
7.1. FINANCIAL CONDITION COVENANTS.
(a) MAINTENANCE OF NET WORTH. Permit Consolidated Net Worth at
any time during any period to be less than the sum of (i)
$483,000,000, PLUS (ii) 100% of the net cash proceeds (including any
cash proceeds of non-cash proceeds) of any net issuances by the
Borrower of any Capital Stock and any equity contributions to it after
the Closing
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Date, PLUS (iii) 50% of the positive Consolidated Net Income, if any,
for each completed fiscal quarter of the Borrower after June 30, 2002.
(b) INTEREST COVERAGE RATIO. Permit the ratio of (i) Consolidated
EBITDA to (ii) Consolidated Interest Expense for any Computation
Period to be less than 3.00 to 1.00.
(c) LEVERAGE RATIO. Permit the ratio of (i) the remainder of
Total Indebtedness MINUS a maximum of $50,000,000 of cash and Cash
Equivalents of the Borrower and its Subsidiaries as of the end of any
Computation Period to (ii) Adjusted Consolidated EBITDA for such
Computation Period to exceed 3.25 to 1.00.
7.2. LIMITATION ON INDEBTEDNESS. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement and the
other Loan Documents;
(b) unsecured Indebtedness of any Subsidiary owing to the
Borrower or any other Subsidiary or secured Indebtedness of any
Subsidiary owing to the Borrower or any other Subsidiary;
(c) Indebtedness of any Subsidiary incurred to finance its
working capital (or the working capital of any of its Subsidiaries),
in an aggregate principal amount not exceeding as to any Subsidiary
$2,500,000 at any time outstanding;
(d) Indebtedness of the Borrower incurred to finance its
acquisition of fixed or capital assets (whether pursuant to a deferred
purchase arrangement with a vendor, a loan, a Financing Lease or
otherwise) in an aggregate principal amount not exceeding $2,500,000
at any time outstanding;
(e) Indebtedness of a Person which becomes a Subsidiary after the
date hereof; PROVIDED that (i) such Indebtedness existed at the time
such Person became a Subsidiary and was not created in anticipation
thereof and (ii) immediately after such Person becomes a Subsidiary,
no Default shall have occurred and be continuing;
(f) Subordinated Indebtedness;
(g) Indebtedness of the Borrower and its Subsidiaries existing on
the date hereof, as described on SCHEDULE 7.2(g), and any Indebtedness
exchanged for the Zero-Coupon Bonds and the Feline Prides Senior
Notes, which Indebtedness is on economic terms, as a whole, at least
as favorable to the Borrower as the Zero-Coupon Bonds and the Feline
Prides Senior Notes, respectively, and on other terms, as a whole, not
more onerous to the Borrower than the Zero-Coupon Bonds and the Feline
Prides Senior Notes, respectively (IT BEING UNDERSTOOD AND AGREED that
SECTION 7.8 shall not limit the ability of the Borrower to consummate
such exchange);
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(h) Indebtedness of the type described in CLAUSE (g) of the
definition of Indebtedness incurred by the Borrower or any Subsidiary
in the ordinary course of business with reputable financial
institutions and not for speculative purposes;
(i) Indebtedness in the nature of deferred compensation to
employees in an aggregate principal amount not exceeding as to the
Borrower and its Subsidiaries $10,000,000 at any time outstanding;
(j) Indebtedness of any Subsidiary in an aggregate principal
amount not exceeding $25,000,000 at any time outstanding; provided
that the sum of all Indebtedness of all Subsidiaries under this
SECTION 7.2(j) shall not exceed $25,000,000 at any time outstanding;
(k) unsecured Indebtedness of the Borrower owing to any
Subsidiary or any Affiliate of the Borrower or any Subsidiary not
exceeding $80,000,000 in the aggregate at any time outstanding, in
each case related to the Borrower's cash management program with its
Affiliates;
(l) Indebtedness of the Borrower incurred to finance its working
capital (including any working capital lines of credit) in an
aggregate principal amount not exceeding $10,000,000 at any time
outstanding;
(m) Guarantee Obligations in respect of Indebtedness otherwise
permitted under this SECTION 7.2; and
(n) senior unsecured notes of the Borrower in an aggregate
principal amount not to exceed $200,000,000; PROVIDED that such notes
shall not be guaranteed by any Person that is not a Loan Party
(subject to CLAUSE (m) above).
7.3. LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments and other governmental charges
not yet due or which are being contested in good faith by appropriate
proceedings; PROVIDED that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) 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 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
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(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business 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
Borrower or such Subsidiary;
(f) Liens securing Indebtedness of the Borrower or any Subsidiary
permitted by SECTION 7.2(d) or 7.2(j) incurred to finance the
acquisition of fixed or capital assets; PROVIDED that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by
such Lien shall at no time exceed the purchase price of such property;
(g) Liens on the property or assets of a Person which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by
SECTION 7.2(e); PROVIDED that (i) such Liens existed at the time such
Person became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or
assets of such Person after the time such Person becomes a Subsidiary,
and (iii) the amount of Indebtedness secured thereby is not increased;
(h) Liens arising by reason of any judgment, decree or order of
any court or other Governmental Authority, (i) if appropriate legal
proceedings which have been initiated for the review of such judgment,
decree or order are being diligently prosecuted and shall not have
been finally terminated or the period within which such proceedings
may be initiated shall not have expired or (ii) if such judgment,
decree or order shall have been discharged, within 45 days of the
entry thereof or execution thereof has been stayed pending appeal;
(i) Liens created pursuant to the Pledge Agreements;
(j) Liens existing, or provided for under arrangements existing,
as of the date hereof as described on SCHEDULE 7.3(j); and
(k) Liens securing Synthetic Lease Obligations permitted under
SECTION 7.15.
7.4. LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur,
assume or suffer to exist any Guarantee Obligation except guarantees by the
Borrower or any Subsidiary or Investment Firm of obligations of any of the
Subsidiaries, which obligations are otherwise permitted under this Agreement,
and except for (a) other Guarantee Obligations not exceeding $1,500,000 in the
aggregate at any time, (b) Guarantee Obligations which constitute Indebtedness
permitted under SECTION 7.2, (c) Guarantee Obligations of Subsidiaries created
pursuant to the Subsidiary Pledge Agreement, (d) Guarantee Obligations with
respect to Indebtedness of any Person which shall be incurred by such Person in
anticipation of a majority interest therein being acquired by the Borrower or
any Subsidiary and which shall be outstanding for no more than 30 days in an
aggregate principal amount for all such Guarantee Obligations not
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exceeding $10,000,000 at any one time outstanding or (e) Guarantee Obligations
created pursuant to the Headquarters Lease.
7.5. LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets (each a "disposition"), or make any material change in its present method
of conducting business; unless (i) with respect to a merger, consolidation or
amalgamation of a Subsidiary, if prior to such event the Borrower owned in
excess of a 50% ownership interest, then after such event the Borrower shall (x)
own in excess of a 50% ownership interest in, (y) be the managing member or
general partner (or a Person with similar rights and obligations) of (whether
directly or through a wholly-owned Subsidiary), or (z) have no ownership
interest in, such Subsidiary or the surviving Person of such merger,
consolidation or amalgamation, (ii) with respect to the liquidation, winding up
or dissolution of a direct or indirect Subsidiary, the assets of such Subsidiary
shall have been transferred to the Borrower or another Loan Party and the other
shareholders, partners or members of such Subsidiary, and (iii) with respect to
any disposition described above, the Net Proceeds thereof shall have been
applied as set forth in SECTION 3.2 to the extent required.
7.6. LIMITATION ON SALE OF ASSETS. Convey, sell, lease,
assign, transfer or otherwise dispose (including in connection with sale
leaseback transactions) of any of its property, business or assets (including
receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Capital Stock to any Person other than the Borrower or any wholly-owned
Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale or other disposition of any property in the ordinary
course of business;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) the sale, issuance or other disposition of the Capital Stock
or other ownership interest of any Subsidiary or of an Investment Firm
in which the Borrower owns an ownership interest to partners,
officers, directors or employees of such Subsidiary or Investment
Firm; PROVIDED that the Borrower shall comply with the terms of
SECTION 3.2; and
(e) the sale or other disposition of (i) all or substantially all
the Capital Stock of a Subsidiary or Investment Firm (including both
Capital Stock held by the Borrower and its Subsidiaries and by the
other holders of Capital Stock of such Subsidiary or Investment Firm),
or (ii) all or substantially all the assets of a Subsidiary or
Investment Firm; PROVIDED that the Borrower shall comply with the
terms of SECTION 3.2.
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7.7. LIMITATION ON LEASES. Permit the amount paid by the
Borrower for lease obligations under operating leases to which the Borrower is a
party (including any such leases entered into in connection with sale leaseback
transactions) for any fiscal year of the Borrower to exceed $5,000,000 in the
aggregate or permit a Subsidiary to make any such payment in respect of lease
obligations except to the extent that any such payment is made out of that
portion of its revenues designated as Operating Cash Flow (and not Free Cash
Flow) under the relevant Revenue Sharing Agreement.
7.8. LIMITATION ON DIVIDENDS. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary in an aggregate amount exceeding, for the Borrower and its
Subsidiaries, $500,000 in any one fiscal year; PROVIDED that the Borrower may
repurchase shares of its common stock as long as no Default shall have occurred
and be continuing or would result therefrom.
7.9. LIMITATION ON CAPITAL EXPENDITURES. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or capital
assets (excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations) except in the
case of the Borrower, for expenditures in the ordinary course of business not
exceeding, in the aggregate for the Borrower during the Commitment Period
$20,000,000 and except in the case of a Subsidiary, expenditures in respect of
fixed or capital assets to the extent that such expenditures are made out of
that portion of its revenues designated as Operating Cash Flow (and not Free
Cash Flow) under the relevant Revenue Sharing Agreement.
7.10. LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in cash equivalents, including any such
investment that may be readily sold or otherwise liquidated in any
Fund for which any Subsidiary or other Investment Firm provides
management, advisory or administrative services and which principally
invests in cash equivalents;
(c) any investment in or loan or advance to an Investment Firm or
a Subsidiary or in any Person which, after giving effect to such
investment, will become a Subsidiary or an Investment Firm, if, after
giving effect to such investment, no Default shall have occurred and
be continuing (PROVIDED that such Investment Firm or Subsidiary is
engaged primarily in the Investment Management Business);
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(d) loans to officers of the Borrower or any Subsidiary in an
aggregate principal amount outstanding not to exceed $10,000,000;
(e) (i) loans and advances to employees of the Borrower or any
Subsidiary for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $500,000 at any one time
outstanding (other than as permitted in SECTION 7.10(f)) and (ii) in
the case of a Subsidiary, loans and advances to employees for travel,
entertainment and relocation expenses in the ordinary course of
business to the extent that such loans and advances are made out of
that portion of its revenues designated as Operating Cash Flow (and
not Free Cash Flow) under the relevant Revenue Sharing Agreement;
(f) to the extent made out of the portion of the revenues of a
Subsidiary which is designated as Operating Cash Flow (and not Free
Cash Flow) under the relevant Revenue Sharing Agreements;
(g) other than as permitted in SECTION 7.10(f), investments in
any Fund or financial product for which any Subsidiary provides
management, advisory or administrative services in an aggregate amount
not to exceed $5,000,000 at any one time outstanding;
(h) any purchase by the Borrower required by the Trust Indenture
dated as of December 21, 2001 between the Borrower and First Union
National Bank, as trustee (as supplemented by the First Supplemental
Indenture between the Borrower and First Union National Bank, as
trustee, dated as of December 21, 2001), and any purchase by the
Borrower of the Zero-Coupon Bonds required by the Indenture dated as
of May 7, 2001 between the Borrower and First Union National Bank, as
trustee; and
(i) Indebtedness received by the Borrower or any Subsidiary as
consideration in a sale or other disposition permitted under SECTION
7.6(d) or (e) in an aggregate principal amount not to exceed
$25,000,000 at any time outstanding.
7.11. LIMITATION ON PAYMENTS OF SUBORDINATED INDEBTEDNESS. Make
any payment (including any cash payment of interest) or prepayment on or
redemption, defeasance or purchase of any Subordinated Indebtedness; PROVIDED
that as long as no Default exists or would result therefrom and the terms of
such Subordinated Indebtedness otherwise permit, the Borrower may make payments
(including redemptions, defeasances or repurchases) in cash or otherwise due on
(a) the Subordinated Payment Notes as required thereunder in an aggregate amount
not exceeding $60,000,000 during the term of this Agreement, (b) Subordinated
Indebtedness constituting intercompany Indebtedness otherwise permitted
hereunder, as required thereunder and (c) other Subordinated Indebtedness in an
aggregate amount not exceeding $10,000,000 during the term of this Agreement.
7.12. RESTRICTION ON AMENDMENTS TO REVENUE SHARING AGREEMENTS.
Amend or modify the terms of a Revenue Sharing Agreement such that, as a result
of such amendment or modification, a material adverse effect on the business,
operations, property, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries, taken as a whole, would occur.
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7.13. LIMITATION ON TRANSACTIONS WITH AFFILIATES. Except as
described on SCHEDULE 7.13 and as otherwise expressly permitted under this
Agreement, enter into any transaction, including any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than the Borrower or a Subsidiary) unless such transaction is (a) otherwise
expressly permitted under this Agreement or (b) in the ordinary course of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person which is not
an Affiliate; PROVIDED that the following transactions shall be permitted under
this SECTION 7.13: (i) the providing of business services by the Borrower or any
Subsidiary to any Investment Firm in the ordinary course of business and (ii)
transactions between the Borrower or any Subsidiary or any officer, director,
individual stockholder, partner or member (or an entity wholly owned by such an
individual) and any Fund or other Investment Company sponsored by the Borrower
or any Subsidiary or for which the Borrower or any Subsidiary provides advisory,
administrative, supervisory, management, consulting or similar services, that
are otherwise permissible under the Investment Company Act, the Investment
Advisers Act and the applicable management contracts.
7.14. LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal
year of the Borrower to end on a day other than December 31.
7.15. LIMITATION ON SYNTHETIC LEASE OBLIGATIONS. Create, incur,
assume or suffer to exist Synthetic Lease Obligations representing principal in
an amount exceeding $25,000,000 in the aggregate at any one time outstanding.
7.16. LIMITATION ON ACQUISITIONS. Make any Acquisition of an
Investment Firm where the Capital Stock of such Investment Firm is held directly
by any Person other than the Borrower or a wholly-owned Subsidiary; PROVIDED
that non-wholly-owned Subsidiaries shall be permitted to make Acquisitions of
Investment Firms if, at the time of consummation of any such Acquisition, the
EBITDA of all Investment Firms (for the four fiscal quarters of the Borrower
most-recently ended) held directly by Persons other than the Borrower or a
wholly-owned Subsidiary does not exceed 5% of Consolidated EBITDA for the four
fiscal quarters of the Borrower most recently ended (adjusted by giving effect
on a pro forma basis to such Acquisition) (IT BEING UNDERSTOOD AND AGREED that
the EBITDA of Investment Firms held directly by Persons other than the Borrower
or a wholly-owned Subsidiary shall not be taken into account in calculating such
5% limit if such Person has pledged an amount of the Capital Stock of such
Investment Firm that is at least proportionate to the Borrower's direct or
indirect ownership interest in such Person). By way of illustration, if
Subsidiary A, a non-wholly-owned direct Subsidiary of which the Borrower owns
80% of the Capital Stock, acquires 1,000 shares of the Capital Stock of
Investment Firm A, the EBITDA of Investment Firm A would not count towards the
5% limit if Subsidiary A pledges at least 800 shares of the Capital Stock of
Investment Firm A (I.E., 1,000 shares TIMES 80%).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
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(a) The Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms hereof; or the Borrower shall fail to
pay any interest on any Loan, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due
in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in (i)
SECTION 6.4, 6.7(a), 6.8, 6.9 or SECTION 7 hereof and, if such default
is by a Loan Party other than the Borrower, such default shall
continue unremedied for a period of 10 days after an officer of the
Borrower obtains knowledge thereof; or (ii) Section 5 of either Pledge
Agreement; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained herein or
in any other Loan Document (other than as provided in SUBSECTIONS (a)
through (c) of this Section), and such default shall continue
unremedied for a period of 30 days; or
(e) The Borrower or any Subsidiary shall (i) default in any
payment of principal of or interest on any Indebtedness (other than
the Loans) or in the payment of any other Guarantee Obligation, in
either case in an outstanding principal amount in excess of
$5,000,000, beyond the period of grace (not to exceed 30 days), if
any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (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
become due prior to its stated maturity or such Guarantee Obligation
to become payable; or
(f) (i) The Borrower or any Subsidiary shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Borrower or any Subsidiary shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Borrower or any Subsidiary any case, proceeding or other action of a
nature
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referred to in CLAUSE (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any
Subsidiary, any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any Subsidiary shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in CLAUSE (i), (ii) or
(iii) above; or (v) the Borrower or any Subsidiary shall generally
not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan maintained by the Borrower or any Subsidiary, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title
IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist, with respect to a Plan; and in each case in CLAUSES (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any Subsidiary involving in the aggregate a liability (not
paid or fully covered by insurance or indemnification) of $5,000,000
or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) (i) Any Loan Document shall cease, for any reason, to be in
full force and effect, or any Loan Party that is a party thereto shall
so assert, (ii) any Loan Party contests in any manner the validity or
enforceability of any Loan Document or (iii) the Lien created by any
of the Pledge Agreements shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or
(j) A Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in SECTION 8(f) with respect to the Borrower, automatically the Commitments
shall immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this
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Agreement shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1. APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.2. DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact selected by it with
reasonable care.
9.3. LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related
Person shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection
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with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Loan Party or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender or participant to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of any Loan Party or any Affiliate
thereof.
9.4. RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to any Loan Party), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.1, 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.
9.5. NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "Notice of Default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with SECTION 8; PROVIDED that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the
best interest of the Lenders.
9.6. CREDIT DECISION; DISCLOSURE OF INFORMATION BY
ADMINISTRATIVE AGENT. Each Lender acknowledges that no Agent-Related Person has
made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent
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to and acceptance of any assignment or review of the affairs of any Loan Party
or any Affiliate thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
9.7. INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not
the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Loan Party and without limiting the obligation of any Loan
Party to do so), PRO RATA, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; PROVIDED that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
PROVIDED that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Commitments, the payment of all other obligations under the Loan Documents and
the resignation of the Administrative Agent.
9.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory,
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underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
9.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders; PROVIDED
that any such resignation by Bank of America shall also constitute its
resignation as Swingline Lender. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be consented to by the Borrower at all times other than during the existence of
an Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and Swingline
Lender and the respective terms "Administrative Agent" and "Swingline Lender"
shall mean such successor administrative agent and swingline lender, the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated and the retiring Swingline Lender's rights, powers and
duties as such shall be terminated, without any other or further act or deed on
the part of such retiring Swingline Lender or any other Lender. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this SECTION 9 and SECTION 10.5 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10. ADMINISTRATIVE AGENT MAY FILE PROOF 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 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
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(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and
all other obligations under the Loan Documents that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under
SECTIONS 2.4 and 10.5) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 2.4 and 10.5.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Loans or obligations under the Loan Documents 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.
9.11. COLLATERAL AND GUARANTY MATTERS. The Lenders 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 Commitments and payment in full of the Loans and all other
obligations under the Loan Documents (other than contingent
indemnification obligations), (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 10.1, if approved,
authorized or ratified in writing by the Lenders; and
(b) to release any guarantor from its obligations under any
guarantee 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
any guarantor from its obligations under any guarantee pursuant to this SECTION
9.11. The Administrative Agent will use commercially reasonable efforts to
notify the Lenders of any release of a Lien pursuant to SECTION 9.11(a)(ii) or
release of a guarantor pursuant to SECTION 9.11(b).
9.12. OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders
or other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "documentation agent," "co-agent," "book
manager," "lead manager," "arranger," "lead
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arranger" or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
SECTION 10. MISCELLANEOUS
10.1. AMENDMENTS AND WAIVERS. (a) Neither this Agreement nor
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
SECTION 10.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (x) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (y) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default and its consequences;
PROVIDED that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of final maturity of
any Loan, or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiration date of any Lender's Commitment, in each case without the
consent of each Lender directly affected thereby, or (ii) amend, modify or waive
any provision of this Section or reduce the percentage specified in the
definition of Required Lenders or change any other provision specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release all or
substantially all of the Pledged Collateral or release any Loan Party from its
guarantee, in each case without the written consent of all the Lenders, or (iii)
amend, modify or waive any provision of SECTION 10.7 without the written consent
of all of the Lenders, or (iv) amend, modify or waive any provision of SECTION 9
without the written consent of the then Administrative Agent; PROVIDED, FURTHER,
that no amendment, waiver or consent shall, unless in writing and signed by the
Swingline Lender in addition to the Lenders required above, affect the rights or
duties of the Swingline Lender under this Agreement. Subject to the provisos in
the prior sentence, any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default waived shall be
deemed to be cured and not continuing; no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
PARAGRAPH(a), this Agreement shall be amended to include a prospective Lender
as a party hereto upon the execution and delivery of a Joinder Agreement as
contemplated in SECTION 2.3(e).
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10.2. NOTICES. (a) Unless otherwise expressly provided herein,
all notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by facsimile transmission and, subject
to CLAUSE (c) below, electronic mail transmission), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered, or five days after being deposited in the mail, postage prepaid, or,
in the case of facsimile or telecopy notice, when received, addressed as set
forth in SCHEDULE I, or to such other address as may be hereafter notified by
the respective parties hereto; PROVIDED that any notice, request or demand to or
upon the Administrative Agent or the Lenders pursuant to SECTION 2.2, 2.5, 3.1,
3.3 or 3.8 shall not be effective until received.
(b) The Administrative Agent and the Lenders shall be entitled to
rely and act upon any notices (including telephonic notices of requests for
Swingline Loans) 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 of any telephonic notice, as understood by the recipient, varied from
any confirmation thereof. The Borrower shall indemnify each Agent-Related Person
and each Lender from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
(c) Electronic mail and Internet and intranet websites may be
used only to distribute routine communications, such as financial statements and
other information as provided in SECTION 6.2, and to distribute Loan Documents
for execution by the parties thereto, and may not be used for any other purpose.
10.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents 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.
10.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder through the Termination Date.
10.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith and the consummation and administration of the transactions
contemplated hereby and thereby, including Attorney Costs of the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all
its costs and
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expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents during the continuance of an Event of Default, including Attorney
Costs of each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold each Lender and the Administrative Agent harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes other than
Non-Excluded Taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents and (d) to pay,
indemnify, and hold each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever arising out of or in
connection with (i) the execution, delivery, enforcement, performance and
administration of this Agreement or any other Loan Documents or (ii) any
Commitment or Loan or the use or proposed use of the proceeds therefrom (all the
foregoing in this CLAUSE (d), collectively, the "INDEMNIFIED LIABILITIES");
PROVIDED that the Borrower shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to Indemnified Liabilities
arising from (i) the gross negligence, bad faith or willful misconduct of the
Administrative Agent or any such Lender or (ii) legal proceedings commenced
against the Administrative Agent or any such Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such; and PROVIDED FURTHER that
nothing in CLAUSE (d) above shall be construed as imposing any obligation on the
Borrower to reimburse any Lender (other than Bank of America in its capacity as
Administrative Agent) for Attorney Costs in connection with its entering into
this Agreement (including the Attorney Costs of counsel reviewing the Loan
Documents). Any statement for Attorney Costs of the Administrative Agent and the
Lenders payable by the Borrower pursuant to this SECTION 10.5 shall be sent to a
Responsible Officer of the Borrower within six months of the termination of the
event giving rise to such expenses. The agreements in this Section shall survive
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
the Loans and all other amounts payable hereunder.
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such
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Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. 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. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement; PROVIDED that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in SECTION 10.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of SECTIONS 3.10, 3.11 and 3.12 with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it was a
Lender; PROVIDED that, in the case of SECTION 3.11, such Participant shall have
complied with the requirements of said Section and PROVIDED, FURTHER, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate thereof or, with the consent
of each of the Administrative Agent and, so long as no Event of Default has been
continuing for a period of 30 or more days, the Borrower (which in each case
shall not be unreasonably withheld or delayed), to an additional bank or
financial institution (an "ASSIGNEE") all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Assumption, substantially in the form of EXHIBIT E, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Administrative Agent and the
Borrower) and delivered to the Administrative Agent for its acceptance and
recording in the Register; PROVIDED that, in the case of any such assignment to
an additional bank or financial institution (other than an assignment of all the
assigning Lender's rights and obligations with respect to the Commitments), the
sum of the aggregate principal amount of the Loans and the aggregate amount of
the unused Commitments being assigned and, if such assignment is of less than
all of the rights and obligations of the assigning Lender, the sum of the
aggregate principal amount of the Loans and the aggregate amount of the unused
Commitments remaining with the assigning Lender are each not less than
$5,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution, delivery, acceptance and recording
pursuant to CLAUSE (e) below, from and after the effective date determined
pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Assumption,
have the rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all or the
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remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
(d) 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 (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Assumption executed by
an assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Administrative Agent with the
approval of the Borrower, if required) together with payment by the Lenders
parties thereto to the Administrative Agent of a registration and processing fee
of $3,500, the Administrative Agent shall (i) promptly accept such Assignment
and Assumption and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee
approved by the Borrower (which approval shall only be required so long as no
Event of Default has been continuing for a period of 30 or more days), which
approval, if required, shall not be unreasonably withheld or delayed, subject to
the provisions of SECTION 10.15, any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement; PROVIDED that prior
to such disclosure each such prospective Transferee shall have executed a
confidentiality agreement substantially in the form of Exhibit F.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
10.7. ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITED
LENDER") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any
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collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in SECTION 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender; PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
10.8. COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
10.9. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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10.12. SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in
(or removed to) such courts and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in SECTION 10.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
10.13. ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14. WAIVERS OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW,
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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10.15. CONFIDENTIALITY. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any Subsidiary pursuant to or in connection with this Agreement or
(b) obtained by such Lender based on a review of the books and records of the
Borrower or any Subsidiary; PROVIDED that nothing herein shall prevent any
Lender from disclosing any such information (i) to the Administrative Agent or
any other Lender or to any Person who evaluates, approves, structures or
administers the Loans on behalf of a Lender and who is subject to this
confidentiality provision, (ii) to any Transferee or prospective Transferee
which agrees in writing to comply with the provisions of this Section, (iii) to
its employees, directors, agents, attorneys, accountants and other professional
advisors who are directly involved in the execution of the transactions
contemplated by this Agreement and have been informed of their obligations under
this SECTION 10.15, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law (notice of which shall be provided promptly
to the Borrower), (vi) which has been publicly disclosed other than in breach of
this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
AFFILIATED MANAGERS GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Crate
------------------------------------
Title: Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent, as Swingline Lender and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title:
THE BANK OF NEW YORK, as Syndication
Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Banking Officer
JPMORGAN CHASE BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
ANNEX I
PRICING GRID
======= ================== ===================== ===================== ===================
Pricing Debt Ratings Applicable Margin for Applicable Margin For
Level S&P/▇▇▇▇▇'▇ Eurodollar Loans ABR Loans Commitment Fee Rate
------- ------------------ --------------------- --------------------- -------------------
1 BBB/Baa2 or higher 1.25% 0.00% 0.20%
------- ------------------ --------------------- --------------------- -------------------
2 BBB-/Baa3 1.50% 0.00% 0.25%
------- ------------------ --------------------- --------------------- -------------------
3 BBB- and Ba1 or 1.75% 0.25% 0.375%
BB+ and Baa3
------- ------------------ --------------------- --------------------- -------------------
4 BB+/Ba1 2.00% 0.50% 0.375%
------- ------------------ --------------------- --------------------- -------------------
5 BB/Ba2 2.25% 0.75% 0.50%
======= ================== ===================== ===================== ===================
SCHEDULE I
LENDER COMMITMENTS
A. Commitments
============================================== ============================== =============================
Lender Commitment Percentage
---------------------------------------------- ------------------------------ -----------------------------
Bank of America, N.A. $ 55,000,000 22.0000%
---------------------------------------------- ------------------------------ -----------------------------
The Bank of New York $ 50,000,000 20.0000%
---------------------------------------------- ------------------------------ -----------------------------
U.S. Bank National Association $ 35,000,000 14.0000%
---------------------------------------------- ------------------------------ -----------------------------
JPMorgan Chase Bank $ 30,000,000 12.0000%
---------------------------------------------- ------------------------------ -----------------------------
Credit Lyonnais New York Branch $ 30,000,000 12.0000%
---------------------------------------------- ------------------------------ -----------------------------
LaSalle Bank National Association $ 25,000,000 10.0000%
---------------------------------------------- ------------------------------ -----------------------------
ING Capital LLC $ 25,000,000 10.0000%
---------------------------------------------- ------------------------------ -----------------------------
Total $250,000,000 100.0000%
============================================== ============================== =============================
(This Schedule has been amended to reflect the increase of commitments to
$250,000,000.)
