AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 15, 2006 AMONG VIAD CORP, THE LENDERS, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, WACHOVIA BANK, NATIONAL ASSOCIATION, AS SYNDICATION AGENT AND BANK OF AMERICA, N.A. AND...
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Exhibit 4
$150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 15, 2006
AMONG
THE LENDERS,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AS ADMINISTRATIVE AGENT,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
AS SYNDICATION AGENT
AND
BANK OF AMERICA, N.A.
AND
KEYBANK NATIONAL ASSOCIATION
AS CO-DOCUMENTATION AGENTS
AS CO-DOCUMENTATION AGENTS
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER
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Exhibit A
|
Form of Note | |
Exhibit B
|
Compliance Certificate | |
Exhibit C
|
Subordination Terms | |
Exhibit D
|
Form of Assignment and Assumption Agreement |
| Pricing Schedule Commitment Schedule |
||
Schedule I
|
Exiting Lenders | |
Schedule 2.20.1
|
Existing Letters of Credit | |
Schedule 5.8
|
Subsidiaries | |
Schedule 5.14
|
Ownership of Properties | |
Schedule 5.18
|
Insurance | |
Schedule 5.20
|
Collateral | |
Schedule 6.11
|
Indebtedness | |
Schedule 6.14
|
Investments | |
Schedule 6.15
|
Liens | |
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of June 15, 2006, is among Viad Corp, a
Delaware corporation, the Lenders and JPMorgan Chase Bank, National Association, a national banking
association, as LC Issuer, as Swing Line Lender and as Administrative Agent.
RECITALS
A. The Borrower, the Administrative Agent, the financial institutions designated as existing
lenders on the Commitment Schedule (“Existing Lenders”) and the financial institutions listed on
Schedule I hereto (“Exiting Lenders”) are party to that certain Credit Agreement, dated as of June
30, 2004 (as amended up to but not including the date hereof, the “Existing Credit Agreement”).
B. The Borrower, the Administrative Agent and the Existing Lenders wish to amend and restate
the Existing Credit Agreement on the terms and conditions set forth below to, among other things,
extend the Facility Termination Date and reallocate the Commitments.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements made herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Existing Credit Agreement is amended and restated
in its entirety as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
“Acquired Company” is defined in Section 6.14.
“Acquisition” means any transaction, or any series of related transactions, consummated on or
after the date of this Agreement, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding ownership interests of a partnership or limited liability company.
“Administrative Agent” means JPMCB in its capacity as administrative agent of the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and any successor
Administrative Agent appointed pursuant to Article X.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the
Administrative Agent.
“Advance” means a borrowing hereunder, (i) made by the Lenders on the same Borrowing Date, or
(ii) converted or continued by the Lenders on the same date of conversion or continuation,
consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in
the case of Eurodollar Loans, for the same Interest Period. The term “Advance” shall include Swing
Line Loans unless otherwise expressly provided.
“Affected Lender” is defined in Section 2.21.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
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“Affirmation” means that certain Affirmation and Amendment of Collateral Documents dated as of
the date hereof executed by the Borrower and each Guarantor in favor of the Administrative Agent,
for the ratable benefit of the Lenders, as it may be amended or modified and in effect from time to
time.
“Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as increased
or reduced from time to time pursuant to the terms hereof. The initial Aggregate Commitment is
$150,000,000.
“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the Outstanding
Credit Exposure of all the Lenders.
“Agreement” means this amended and restated credit agreement, as it may be amended, restated
or modified and in effect from time to time.
“Alternate Base Rate” means, for any day, a rate of interest per annum equal to the higher of
(i) the Prime Rate in effect on such day and (ii) the sum of the Federal Funds Effective Rate for
such day plus 1/2% per annum. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and including the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable Fee Rate” means, at any time, the percentage rate per annum at which commitment
fees are accruing on the unused portion of the Aggregate Commitment at such time as set forth in
the Pricing Schedule.
“Applicable Margin” means, with respect to Advances of any Type at any time, the percentage
rate per annum which is applicable at such time with respect to Advances of such Type as set forth
in the Pricing Schedule.
“Approved Fund” is defined in Section 12.1(b).
“Arranger” means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and its successors, in its capacities as Sole
Lead Arranger and Sole Bookrunner.
“Article” means an article of this Agreement unless another document is specifically
referenced.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 12.1) and accepted by
the Administrative Agent, in the form of Exhibit D or any other form approved by the Administrative
Agent.
“Authorized Officer” means any of the Chairman, Chief Executive Officer, President, Chief
Financial Officer or Treasurer of the Borrower, acting singly.
“Available Aggregate Commitment” means, at any time, the Aggregate Commitment then in effect
minus the Aggregate Outstanding Credit Exposure at such time.
“Borrower” means Viad Corp, a Delaware corporation, and its successors and assigns.
“Borrowing Date” means a date on which an Advance is made hereunder.
“Borrowing Notice” is defined in Section 2.9.
“Business Day” means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in
Chicago and New York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and dealings in United
States dollars are carried on in the London interbank market and (ii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Chicago and New York City
for the conduct of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
“Capital Expenditures” means, without duplication, any expenditures for any purchase or other
acquisition of any asset which would be classified as a fixed or capital asset on a consolidated
balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP excluding (i)
the cost of assets acquired with Capitalized Lease Obligations, (ii) expenditures of insurance
proceeds to rebuild or replace any asset after a casualty or condemnation loss and (iii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is reimbursed promptly by the
lessor.
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“Capitalized Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
“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, rights or options to purchase any of
the foregoing.
“Cash Equivalent Investments” means (i) demand deposit accounts maintained in the ordinary
course of business; (ii) marketable direct obligations issued or unconditionally guaranteed by the
United States or Canadian government and backed by the full faith and credit of the United States
or Canadian government; (iii) certificates of deposit, time deposits, bankers’ acceptances and
floating rate certificates of deposit issued by commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; (iv) commercial paper rated A-2 or better by
S&P or P-2 or better by ▇▇▇▇▇’▇; (v) shares of money market, mutual or similar funds having assets
in excess of $100,000,000 and at least 95% of the investments of which are limited to investment
grade securities (i.e., securities rated at least Baa by ▇▇▇▇▇’▇ or at least BBB by S&P); (vi)
repurchase obligations of any commercial bank organized under the laws of the United States, any
state thereof, the District of Columbia, any foreign bank, or its branches or agencies having a
term not more than thirty (30) days, with respect to securities issued or fully guaranteed or
insured by the United States or Canadian government; provided in the case of each of clauses (ii)
through (vi) above the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the payment of principal
or interest. The maturity of Cash Equivalent Investments described in clauses (ii) through (v)
above shall not exceed 365 days.
“Change” is defined in Section 3.2.
“Change in Control” means the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of
voting stock of the Borrower.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.
“Collateral” collectively refers to the term “Collateral” as defined in the Security Agreement
and the Subsidiary Security Agreement.
“Collateral Documents” means, collectively, the Affirmation, the Guaranty, the Security
Agreement, the Subsidiary Security Agreement, any intellectual property assignments and all other
security documents hereafter delivered to the Administrative Agent granting a Lien or purporting to
▇▇▇▇▇ ▇ ▇▇▇▇ on any property of any Person to secure the obligations and liabilities of the
Borrower or any of its Subsidiaries under any Loan Document.
“Collateral Shortfall Amount” is defined in Section 8.1.
“Commitment” means, for each Lender, the obligation of such Lender to make Revolving Loans to,
and participate in Facility LCs issued upon the application of, the Borrower in an aggregate amount
not exceeding the amount set forth opposite its name on the Commitment Schedule, as it may be
modified as a result of any assignment that has become effective pursuant to Section 12.1 or as
otherwise modified from time to time pursuant to the terms hereof.
“Commitment Schedule” means the Schedule attached hereto identified as such.
“Concession Agreement” means that certain Contract No. CX ▇▇▇▇-▇-▇▇▇▇ between Glacier Park,
Inc. and the United States of America as amended or supplemented from time to time.
“Consolidated Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
“Consolidated EBITDA” means Consolidated Net Income plus, to the extent deducted from revenues
in determining Consolidated Net Income and without duplication, (i) Consolidated Interest Expense,
(ii) expense for income taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
extraordinary or non-recurring cash losses incurred other than in the ordinary course of business
not to exceed $10,000,000 during any twelve-month period, and $25,000,000 in the aggregate for all
such computation periods before the Facility Termination Date, (vi) non-cash losses, (vii) goodwill
impairment losses and (viii) one
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time write downs of assets associated with Hurricane ▇▇▇▇▇▇▇ minus, (i) to the extent included in
Consolidated Net Income, extraordinary or non-recurring gains realized other than in the ordinary
course of business and (ii) non-cash gains, all calculated for the Borrower and its Subsidiaries on
a consolidated basis. For any computation period during which (i) an Acquired Company is acquired
or (ii) a Disposed Company is sold, Consolidated EBITDA shall be calculated on a pro forma basis as
if such Acquired Company or Disposed Company, as the case may be, had been acquired (and any
related Indebtedness incurred) or sold (and any related Indebtedness disposed of), as the case may
be, on the first day of such computation period.
“Consolidated Indebtedness” means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time.
“Consolidated Interest Expense” means, with reference to any period, the interest expense of
the Borrower and its Subsidiaries calculated on a consolidated basis for such period. For any
computation period during which an Acquired Company is acquired, Consolidated Interest Expenses
shall be calculated on a pro forma basis as if any Indebtedness incurred in connection with the
acquisition of such Acquired Company had been incurred on the first day of such computation period.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the
Borrower and its Subsidiaries calculated on a consolidated basis for such period.
“Consolidated Net Worth” means at any time the consolidated stockholders’ equity (including
minority interests) of the Borrower and its Subsidiaries calculated on a consolidated basis as of
such time.
“Consolidated Rentals” means, with reference to any period, the Rentals of the Borrower and
its Subsidiaries calculated on a consolidated basis for such period.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person against loss,
including, without limitation, any operating agreement, take-or-pay contract or the obligations of
any such Person as general partner of a partnership with respect to the liabilities of the
partnership.
“Controlled Group” means all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated) under common control which,
together with the Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
“Conversion/Continuation Notice” is defined in Section 2.10.
“Credit Extension” means the making of an Advance or the issuance of a Facility LC hereunder.
“Credit Extension Date” means the Borrowing Date for an Advance or the issuance date for a
Facility LC hereunder.
“Default” means an event described in Article VII.
“Disposed Company” means an entity or going business sold by the Borrower or any of its
Subsidiaries by way of sale of equity or substantially all of the assets of such entity and
otherwise permitted by this Agreement.
“Dollars” means lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.
“Effective Date” is defined in Section 4.1
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions
relating to (i) the protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances
or wastes into surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other remediation thereof.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.
“Eurodollar Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the applicable Eurodollar Rate.
“Eurodollar Base Rate” means, with respect to any Eurodollar Advance for any Interest Period,
the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “Eurodollar Base Rate” with respect to such
Eurodollar Advance for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.
“Eurodollar Loan” means a Loan which, except as otherwise provided in Section 2.11, bears
interest at the applicable Eurodollar Rate.
“Eurodollar Rate” means, with respect to any Eurodollar Advance for any Interest Period, an
interest rate per annum equal to the sum of (i) (a) the Eurodollar Base Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate (rounded upwards, if necessary, to the next
1/16 of 1%) plus (ii) the Applicable Margin.
“Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and the
Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it,
by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is
incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such
Lender’s principal executive office or such Lender’s applicable Lending Installation is located.
“Exhibit” refers to an exhibit to this Agreement, unless another document is specifically
referenced.
“Existing Credit Agreement” is defined in the Recitals hereto.
“Existing Lenders” is defined in the Recitals hereto.
“Existing Letters of Credit” means the Letters of Credit identified on Schedule 2.20.1 hereto.
“Exiting Lenders” is defined in the Recitals hereto.
“Facility LC” is defined in Section 2.20.1.
“Facility LC Application” is defined in Section 2.20.3.
“Facility LC Collateral Account” is defined in Section 2.20.11.
“Facility Termination Date” means the earlier of (i) June 15, 2011 or (ii) any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms
hereof.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.
“Financial Contract” of a Person means (i) any exchange-traded or over-the-counter futures,
forward, swap or option contract or other financial instrument with similar characteristics or (ii)
any Rate Management Transaction.
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“Floating Rate” means, for any day, a rate per annum equal to (i) the Alternate Base Rate for
such day plus (ii) the Applicable Margin, changing when and as the Alternate Base Rate changes.
“Floating Rate Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the Floating Rate.
“Floating Rate Loan” means a Loan which, except as otherwise provided in Section 2.11, bears
interest at the Floating Rate.
“Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles as in effect from time to time in the
United States, applied in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4; provided, however, that, except as provided in Section 9.8, with
respect to the calculation of financial ratios and other financial tests required by this
Agreement, GAAP means generally accepted accounting principles as in effect from time to time in
the United States as of the date of this Agreement, applied in a manner consistent with that used
in preparing financial statements of the Borrower referred to in Section 5.4 hereof.
“Guarantor” means a Domestic Subsidiary which is a party to the Guaranty.
“Guaranty” means that certain Guaranty dated as of June 30, 2004 executed by the Material
Domestic Subsidiaries of the Borrower in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to time.
“Indebtedness” of a Person means such Person’s (i) obligations for borrowed money, (ii)
obligations representing the deferred purchase price of Property or services (other than accounts
payable arising in the ordinary course of such Person’s business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds
or production from Property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) obligations of such Person to
purchase securities or other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease Obligations, (vii) Letters of
Credit, (viii) Contingent Obligations, (ix) Rate Management Obligations and (x) any other
obligation for borrowed money or other financial accommodation which in accordance with GAAP would
be shown as a liability on the consolidated balance sheet of such Person. For purposes hereof
(including the computation of the Leverage Ratio), the amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith; provided that for purposes of computing the
Leverage Ratio (i) the amount of any Contingent Obligation of the Borrower or a Subsidiary in
respect of obligations of the Borrower or a Subsidiary and (ii) the amount of any Contingent
Obligation in respect of an obligation not itself constituting Indebtedness shall be zero.
Notwithstanding the foregoing, Rate Management Obligations (to the extent incurred in the ordinary
course of business and not for speculative purposes) shall not constitute Indebtedness.
“Interest Period” means, with respect to a Eurodollar Advance, a period of one, two, three or
six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such
Interest Period shall end on the day which corresponds numerically to such date one, two, three or
six months thereafter, provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a
new calendar month, such Interest Period shall end on the immediately preceding Business Day.
“Investment” of a Person means any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses and similar items arising in the
ordinary course of business and other than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit accounts and certificate of
deposit owned by such Person; and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
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“JPMCB” means JPMorgan Chase Bank, National Association, a national banking association, in
its individual capacity, and its successors. JPMCB is the successor by merger to Bank One, NA.
“LC Fee” is defined in Section 2.20.4.
“LC Issuer” means JPMCB (or any subsidiary or affiliate of JPMCB designated by JPMCB) in its
capacity as issuer of Facility LCs hereunder.
“LC Obligations” means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
“LC Payment Date” is defined in Section 2.20.5.
“Lenders” means the lending institutions listed on the signature pages of this Agreement, any
Person becoming a lender hereunder pursuant to Section 2.6.3 and their respective successors and
assigns. Unless otherwise specified, the term “Lenders” includes JPMCB in its capacity as Swing
Line Lender.
“Lending Installation” means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiary or affiliate of such Lender or the Administrative Agent listed on the
signature pages hereof or on a Schedule or otherwise selected by such Lender or the Administrative
Agent pursuant to Section 2.18.
“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued
upon the application of such Person or upon which such Person is an account party or for which such
Person is in any way liable.
“Leverage Ratio” means, as of any date of calculation, the ratio of (i) Consolidated
Indebtedness outstanding on such date to (ii) Consolidated EBITDA for the Borrower’s then
most-recently ended four fiscal quarters.
“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
“Loan” means a Revolving Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, the Facility LC Applications, any Notes issued pursuant
to Section 2.14 and the Collateral Documents.
“Material Adverse Effect” means a material adverse effect on (i) the business, Property,
condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan
Documents to which it is a party in any material respect, or (iii) the enforceability in any
material respect of any of the Loan Documents or the material rights or remedies of the
Administrative Agent or the Lenders thereunder.
“Material Domestic Subsidiary” means a Domestic Subsidiary (other than Glacier Park, Inc.
unless and until such time as it becomes a Wholly-Owned Subsidiary) having an amount in excess of
the lesser of (i) 5% of assets (valued at the greater of book or fair market value) of the
Borrower and its Subsidiaries on a consolidated basis or (ii) 5% of Consolidated Net Income for the
preceding four fiscal quarter period, in each case determined as of the most recent fiscal quarter
end for which financials have been delivered by the Borrower pursuant to Section 6.1.
“Material Indebtedness” means Indebtedness in an outstanding principal amount of $15,000,000
or more in the aggregate (or the equivalent thereof in any currency other than U.S. dollars).
“Material Indebtedness Agreement” means any agreement under which any Material Indebtedness
was created or is governed or which provides for the incurrence of Indebtedness in an amount which
would constitute Material Indebtedness (whether or not an amount of Indebtedness constituting
Material Indebtedness is outstanding thereunder).
“Modify” or “Modification” is defined in Section 2.20.1.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.
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“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement to
which the Borrower or any member of the Controlled Group is a party to which more than one employer
is obligated to make contributions.
“Non-Equity Consideration” means, with respect to any Acquisition, consideration paid and debt
assumed in consideration thereof exclusive of (i) any common stock of the Borrower included in such
consideration and (ii) any cash payments included in such consideration to the extent such cash
payments are made from the traceable cash proceeds received from the issuance and sale of the
Capital Stock of the Borrower specifically in connection with such Acquisition.
“Non-U.S. Lender” is defined in Section 3.5(iv).
“Note” is defined in Section 2.14(iv).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders, or to the Administrative Agent or
any indemnified party arising under the Loan Documents.
“Operating Lease” of a Person means any lease of Property (other than a Capitalized Lease) by
such Person as lessee which has an original term (including any required renewals and any renewals
effective at the option of the lessor) of one year or more.
“Operating Lease Obligations” means, as at any date of determination, the amount obtained by
aggregating the present values, determined in the case of each particular Operating Lease by
applying a discount rate (which discount rate shall equal the discount rate which would be applied
under GAAP if such Operating Lease were a Capitalized Lease) from the date on which each fixed
lease payment is due under such Operating Lease to such date of determination, of all fixed lease
payments due under all Operating Leases of the Borrower and its Subsidiaries.
“Other Taxes” is defined in Section 3.5(ii).
“Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Revolving Loans outstanding at such time, plus (ii) an amount
equal to its Pro Rata Share of the LC Obligations at such time, plus (iii) an amount equal to its
Pro Rata Share of the aggregate principal amount of Swing Line Loans outstanding at such time.
“Participants” is defined in Section 12.1(c).
“Payment Date” means the last day of each calendar year quarter.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Person” means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code as to which the Borrower or any
member of the Controlled Group may have any liability other than the Viad Corp Retirement Income
Plan.
“Pricing Schedule” means the Schedule attached hereto identified as such.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by
JPMCB as its prime rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
“Proceeds” is defined in the Uniform Commercial Code.
“Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction the numerator
of which is such Lender’s Commitment (or, if the Aggregate Commitment has expired or been
terminated, its Outstanding Credit Exposure) and
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the denominator of which is the Aggregate Commitment (or, if the Aggregate Commitment has expired
or been terminated, the Aggregate Outstanding Credit Exposure).
“Rate Management Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into by the Borrower or any Subsidiary which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency
swap transaction, cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
“Rate Management Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
“Register” is defined in Section 12.1(b)(iv).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve System.
“Reimbursement Obligations” means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.20 to reimburse the LC Issuer for amounts paid by the LC
Issuer in respect of any one or more drawings under Facility LCs.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such Person and such Person’s
Affiliates.
“Rentals” of a Person means the aggregate fixed amounts payable by such Person under any
Operating Lease.
“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 has by regulation waived the requirement 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.
“Reports” is defined in Section 9.6.
“Required Lenders” means Lenders in the aggregate having at least 51% of the Aggregate
Commitment or, if the Aggregate Commitment has expired or been terminated, Lenders in the aggregate
holding at least 51% of the Aggregate Outstanding Credit Exposure.
“Revolving Loan” means, with respect to a Lender, such Lender’s loan made pursuant to its
commitment to lend set forth in Section 2.1.
“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.
“Sale and Leaseback Transaction” means any sale or other transfer of Property by any Person
with the intent to lease such Property as lessee.
“Schedule” refers to a specific schedule to this Agreement, unless another document is
specifically referenced.
“Section” means a numbered section of this Agreement, unless another document is specifically
referenced.
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“Security Agreement” means that certain Pledge and Security Agreement dated as of June 30,
2004 executed by the Borrower in favor of the Administrative Agent, for the ratable benefit of the
Lenders, as it may be amended or modified and in effect from time to time.
“Separation Agreements” means (i) the Separation and Distribution Agreement, (ii) the Employee
Benefits Agreement, (iii) the Tax Sharing Agreement, and (iv) the Interim Services Agreement, in
each case, dated as of June 30, 2004 and entered into between the Borrower and MoneyGram
International, Inc.
“Single Employer Plan” means a Plan maintained by the Borrower or any member of the Controlled
Group for employees of the Borrower or any member of the Controlled Group other than the Viad Corp
Retirement Income Plan.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board of Governors of the Federal Reserve System to which the
Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D). Such reserve percentages
shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise expressly provided,
all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.
“Subsidiary Security Agreement” means that certain Subsidiary Pledge and Security Agreement
dated as of June 30, 2004 executed by each Material Domestic Subsidiary in favor of the
Administrative Agent, for the ratable benefit of the Lenders, as it may be amended or modified and
in effect from time to time.
“Substantial Portion” means, with respect to the Property of the Borrower and its
Subsidiaries, Property which represents more than 10% of the consolidated assets of the Borrower
and its Subsidiaries or property which is responsible for more than 10% of the consolidated net
sales or of the consolidated net income of the Borrower and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such determination is made
(or if financial statements have not been delivered hereunder for that month which begins the
twelve-month period, then the financial statements delivered hereunder for the quarter ending
immediately prior to that month).
“Swing Line Borrowing Notice” is defined in Section 2.5.2.
“Swing Line Lender” means JPMCB or such other Lender which may succeed to its rights and
obligations as Swing Line Lender pursuant to the terms of this Agreement.
“Swing Line Loan” means a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.5.
“Syndication Agent” means Wachovia Bank, National Association, in its capacity as Syndication
Agent, and not in its individual capacity as Lender, and any successor.
“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding
Excluded Taxes and Other Taxes.
“Transferee” is defined in Section 12.2.
“Type” means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate Loan or a Eurodollar
Loan.
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“Unfunded Liabilities” means the amount (if any) of the excess of the current liability
(as defined by Section 412(1)(7) of the Code) over the fair value of assets according to the most
recent actuarial valuation within the last twelve (12) months for all Single Employer Plans.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect on the date hereof
and from time to time in the State of New York; provided that if by reason of mandatory provisions
of law, the perfection or the effect of perfection or non-perfection of the security interests in
any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial
Code as in effect on or after the date hereof in any other jurisdiction, “Uniform Commercial Code”
means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or non-perfection or
availability of such remedy.
“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or
both, would constitute a Default.
“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting
securities of which (other than qualifying shares required to be owned by directors) shall at the
time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the Effective Date and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to (i) make or continue Revolving Loans to the Borrower and (ii) participate in
Facility LCs issued upon the request of the Borrower, provided that, after giving effect to the
making of each such Revolving Loan and the issuance of each such Facility LC, such Lender’s
Outstanding Credit Exposure shall not exceed in the aggregate at any one time the amount of its
Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at
any time prior to the Facility Termination Date. The Commitments to extend credit hereunder shall
expire on the Facility Termination Date. The LC Issuer will issue Facility LCs hereunder on the
terms and conditions set forth in Section 2.20.
2.2. Required Payments; Termination. Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility Termination Date.
2.3. Ratable Loans. Each Advance hereunder (other than any Swing Line Loan)
shall consist of Revolving Loans made from the several Lenders ratably according to their Pro Rata
Shares.
2.4. Types of Advances. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in accordance with Sections
2.9 and 2.10, or Swing Line Loans selected by the Borrower in accordance with Section 2.5.
2.5. Swing Line Loans.
2.5.1 Amount of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 4.2 and, if such Swing Line Loan is to be made on the
date of the initial Advance hereunder, the satisfaction of the conditions precedent
set forth in Section 4.1 as well, from and including the Effective Date and prior to
the Facility Termination Date, the Swing Line Lender may, in its sole discretion, on
the terms and conditions set forth in this Agreement, make Swing Line Loans to the
Borrower from time to time in an aggregate outstanding principal amount not to exceed
$15,000,000 provided that the Aggregate Outstanding Credit Exposure shall not at any
time exceed the Aggregate Commitment, and provided further that at no time shall
the sum of (i) the Swing Line Lender’s Pro Rata Share of the Swing Line Loans, plus
(ii) the outstanding
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Revolving Loans made by the Swing Line Lender exceed the Swing
Line Lender’s Commitment at such time. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.
2.5.2 Borrowing Notice. The Borrower shall deliver to the Administrative
Agent and the Swing Line Lender irrevocable notice (a “Swing Line Borrowing Notice”)
not later than 11:00 a.m. (Chicago time) on the Borrowing Date of each Swing Line
Loan, specifying (i) the applicable Borrowing Date (which date shall be a Business
Day), and (ii) the aggregate amount of the requested Swing Line Loan which shall be
an amount not less than $500,000. The Swing Line Loans shall bear interest at the
Floating Rate.
2.5.3 Making of Swing Line Loans. Promptly after receipt of a Swing Line
Borrowing Notice, the Administrative Agent shall notify each Lender by fax, or other
similar form of transmission, of the requested Swing Line Loan. If the Swing Line
Lender elects to make the requested Swing Line Loan, then not later than 1:00 p.m.
(Chicago time) on the applicable Borrowing Date, the Swing Line Lender shall make
available the Swing Line Loan, in funds immediately available in Chicago, to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will promptly make the funds so received from the Swing Line
Lender available to the Borrower on the Borrowing Date at the Administrative Agent’s
aforesaid address.
2.5.4
Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth (5th) Business Day after the Borrowing
Date for such Swing Line Loan. In addition, the Swing Line Lender (i) may at any time
in its sole discretion with respect to any outstanding Swing Line Loan, or (ii) shall
on the fifth (5th) Business Day after the Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing Line Lender) to make a Revolving Loan in the
amount of such Lender’s Pro Rata Share of such Swing Line Loan (including, without
limitation, any interest accrued and unpaid thereon), for the purpose of repaying
such Swing Line Loan. Not later than noon (Chicago time) on the date of any notice
received pursuant to this Section 2.5.4, each Lender shall make available its
required Revolving Loan, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to Article XIII. Revolving
Loans made pursuant to this Section 2.5.4 shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into Eurodollar Loans
in the manner provided in Section 2.10 and subject to the other conditions and
limitations set forth in this Article II. Unless a Lender shall have notified the
Swing Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 4.1 or 4.2 had not then been satisfied,
such Lender’s obligation to make Revolving Loans pursuant to this Section 2.5.4 to
repay Swing Line Loans shall be unconditional, continuing, irrevocable and absolute
and shall not be affected by any circumstances, including, without limitation, (a)
any set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Administrative Agent, the Swing Line Lender or any other Person, (b)
the occurrence or continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of the Borrower, or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender fails to
make payment to the Administrative Agent of any amount due under this Section 2.5.4,
the Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for any
reason any Lender fails to make payment to the Administrative Agent of any amount due
under this Section 2.5.4, such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased from the
Swing Line Lender, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such Revolving Loan,
and such interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received. On
the Facility Termination Date, the Borrower shall repay in full the outstanding
principal balance of the Swing Line Loans.
2.6. Commitment Fee; Reductions and Increases in Aggregate Commitment.
2.6.1 The Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a commitment fee at a per annum rate equal to
the Applicable Fee Rate on the daily unused portion of such Lender’s Commitment
(regardless of whether any condition set forth in Article II is then satisfied) from
the date hereof to and including the Facility Termination Date, payable in arrears on
each
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Payment Date hereafter and on the Facility Termination Date. Swing Line Loans shall
not count as usage of any Lender’s Commitment for the purposes of calculating the
commitment fee due hereunder.
2.6.2 The Borrower may permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders in a minimum aggregate amount of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof, upon at least three Business Days’
written notice to the Administrative Agent, which notice shall specify the amount of
any such reduction, provided, however, that the amount of the Aggregate Commitment
may not be reduced below the Aggregate Outstanding Credit Exposure. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
2.6.3 The Borrower may, at its option, seek to increase the Aggregate Commitment by
up to an aggregate amount of $75,000,000 (resulting in a maximum Aggregate Commitment
of up to $225,000,000) in a minimum amount of $15,000,000 and in integral multiples
of $5,000,000 in excess thereof, upon prior written notice to the Administrative
Agent, which notice shall specify the amount of any such increase and shall be
delivered at a time when no Default or Unmatured Default has occurred and is
continuing. The Borrower may, after giving such notice, offer the increase (which may
be declined by any Lender in its sole discretion) in the Commitments on either a
ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or
to other Lenders or entities reasonably acceptable to the Administrative Agent. No
increase in the Commitments shall become effective until the existing or new Lenders
extending such incremental Commitment amount and the Borrower shall have delivered to
the Administrative Agent a document in form and substance reasonably satisfactory to
the Administrative Agent pursuant to which each such existing Lender states the
amount of its Commitment increase, each such new Lender becomes a party hereto,
states its Commitment amount and agrees to assume and accept the obligations and
rights of a Lender hereunder and the Borrower accepts such incremental Commitments.
The existing or new Lenders extending such incremental Commitment amount shall accept
an assignment from the existing Lenders, and the existing Lenders shall make such
assignment, of an interest in each then outstanding Revolving Loan, Swing Line Loan,
Facility LC and Reimbursement Obligation such that, after giving effect thereto, all
Revolving Loans, Swing Line Loans, Facility LCs and Reimbursement Obligations are
held ratably by the Lenders in proportion to their respective Commitments.
Assignments pursuant to the preceding sentence shall be made in exchange for the
principal amount assigned plus accrued and unpaid interest and shall not be subject
to the assignment fee set forth in Section 12.1(b). The Borrower shall make any
payments under Section 3.4 resulting from such assignments. Any such increase of the
Aggregate Commitment shall be subject to receipt by the Administrative Agent from the
Borrower of such supplemental opinions, resolutions, certificates and other documents
as the Administrative Agent may reasonably request.
2.7. Minimum Amount of Each Advance. Each Eurodollar Advance (other than an
Advance to repay Swing Line Loans) shall be in the minimum amount of $5,000,000 (and in multiples
of $1,000,000 if in excess thereof), and each Floating Rate Advance shall be in the minimum amount
of $5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided, however, that any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
2.8. Optional Principal Payments. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances (other than Swing Line Loans),
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in excess
thereof, any portion of the outstanding Floating Rate Advances (other than Swing Line Loans) upon
one Business Day’s prior notice to the Administrative Agent. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans, or, in a minimum amount of $500,000
and increments of $100,000 in excess thereof, any portion of the outstanding Swing Line Loans, with
notice to the Administrative Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the
date of repayment. The Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances upon three
Business Days’ prior notice to the Administrative Agent.
2.9. Method of Selecting Types and Interest Periods for New Advances. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar Advance, the Interest
Period applicable thereto from time to time. The Borrower shall give the Administrative Agent
irrevocable notice (a “Borrowing Notice”) not later than 1:00 p.m. (Chicago time) at least one
Business Day before the Borrowing Date of each Floating Rate Advance (other than a Swing Line Loan)
and three Business Days before the Borrowing Date for each Eurodollar Advance, specifying:
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| (i) | the Borrowing Date, which shall be a Business Day, of such Advance, | ||
| (ii) | the aggregate amount of such Advance, | ||
| (iii) | the Type of Advance selected, and | ||
| (iv) | in the case of each Eurodollar Advance, the Interest Period applicable thereto. |
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall make available its
Revolving Loan or Revolving Loans in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XIII. The Administrative Agent will make the
funds so received from the Lenders available to the Borrower at the Administrative Agent’s
aforesaid address.
2.10. Conversion and Continuation of Outstanding Advances. Floating Rate
Advances (other than Swing Line Loans) shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section 2.10 or
are repaid in accordance with Section 2.8. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower shall have
given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that,
at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other than Swing Line
Loans) into a Eurodollar Advance. The Borrower shall give the Administrative Agent irrevocable
notice (a “Conversion/Continuation Notice”) of each conversion of a Floating Rate Advance into a
Eurodollar Advance or continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago time)
at least three Business Days prior to the date of the requested conversion or continuation,
specifying:
| (i) | the requested date, which shall be a Business Day, of such conversion or continuation, | ||
| (ii) | the aggregate amount and Type of the Advance which is to be converted or continued, and | ||
| (iii) | the amount of such Advance which is to be converted into or continued as a Eurodollar Advance and the duration of the Interest Period applicable thereto. |
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance (other than
Swing Line Loans) shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.10, to but excluding the date it is paid
or is converted into a Eurodollar Advance pursuant to Section 2.10 hereof, at a rate per annum
equal to the Floating Rate for such day. Each Swing Line Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the day such Swing Line Loan
is made to but excluding the date it is paid hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate.
Each Eurodollar Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower’s selections under Sections 2.9 and
2.10 and otherwise in accordance with the terms hereof. No Interest Period may end after the
Facility Termination Date.
2.12. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.4, 2.8, 2.9, 2.10 or 2.11, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that
no Advance may be made as, converted into or continued as a Eurodollar Advance. During the
continuance of a Default, unless waived by the Required Lenders, (i) each Eurodollar Advance shall
bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable
to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at a
rate per annum equal to the Floating Rate in effect from time to time plus 2% per annum, (iii) the
LC Fee shall be increased by 2% per annum and (iv) all overdue interest, other fees and other
amounts shall bear interest at a rate per annum equal to the Floating Rate then in effect plus 2%
per annum, in each case without any election or action on the part of the Administrative Agent or
any Lender.
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2.13. Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds to the
Administrative Agent at the Administrative Agent’s address specified pursuant to Article XIII, or
at any other Lending Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by noon (local time) on the date when due and shall (except
with respect to repayments of Swing Line Loans and except in the case of Reimbursement Obligations
for which the LC Issuer has not been fully indemnified by the Lenders, or as otherwise specifically
required hereunder) be applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by
the Administrative Agent to such Lender in the same type of funds that the Administrative Agent
received at its address specified pursuant to Article XIII or at any Lending Installation specified
in a notice received by the Administrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge the account of the Borrower maintained with JPMCB for each payment of
principal, interest and fees as it becomes due hereunder. Each reference to the Administrative
Agent in this Section 2.13 shall also be deemed to refer, and shall apply equally, to the LC
Issuer, in the case of payments required to be made by the Borrower to the LC Issuer pursuant to
Section 2.20.6.
2.14. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender from time to time
hereunder.
(ii) The Administrative Agent shall also maintain the Register as set forth in Section
12.1(b)(iv).
(iii) The entries maintained in the accounts maintained pursuant to paragraphs (i) and (ii)
above shall be prima facie evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain
such accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory note or, in the case
of the Swing Line Lender, promissory notes representing its Revolving Loans and Swing Line Loans,
respectively (each in the form of Exhibit A (a “Note”)). In such event, the Borrower shall prepare,
execute and deliver to such Lender such Note payable to the order of such Lender. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times (prior to any assignment
pursuant to Section 12.1) be represented by one or more Notes payable to the order of the payee
named therein, except to the extent that any such Lender subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described in paragraphs (i)
and (ii) above.
2.15. Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower,
it being understood that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect from the action
taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the
Lenders shall govern absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing with the first such
date to occur after the Effective Date, on any date on which the Floating Rate Advance is prepaid,
whether due to acceleration or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted into a Eurodollar Advance on a
day other than a Payment Date shall be payable on the date of conversion. Interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date
on which the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such Interest Period.
Interest on Eurodollar Advances, commitment fees and LC Fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest on Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a 365-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment is received prior
to noon (local time) at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal payment, such extension of time shall
be included in computing interest in connection with such payment.
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2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing Notice, Swing Line Borrowing
Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly
after notice from the LC Issuer, the Administrative Agent will notify each Lender of the contents
of each request for issuance of a Facility LC hereunder. The Administrative Agent will notify each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon determination of
such interest rate and will give each Lender prompt notice of each change in the Alternate Base
Rate.
2.18. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs at any Lending
Installation selected by such Lender or the LC Issuer, as the case may be, and may change its
Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may be, for the benefit
of any such Lending Installation. Each Lender and the LC Issuer may, by written notice to the
Administrative Agent and the Borrower in accordance with Article XIII, designate replacement or
additional Lending Installations through which Loans will be made by it or Facility LCs will be
issued by it and for whose account Loan payments or payments with respect to Facility LCs are to be
made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds
of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The Administrative Agent may,
but shall not be obligated to, make the amount of such payment available to the intended recipient
in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand
by the Administrative Agent, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and, thereafter, the interest
rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.
2.20. Facility LCs.
2.20.1 Issuance. The LC Issuer hereby agrees, on the terms and conditions set
forth in this Agreement, to issue standby letters of credit denominated in Dollars
(each, a “Facility LC”) and to renew, extend, increase, decrease or otherwise modify
each Facility LC (“Modify,” and each such action a “Modification”), from time to time
from and including the Effective Date and prior to the Facility Termination Date upon
the request of and for the account of the Borrower; provided that immediately after
each such Facility LC is issued or Modified, (i) the aggregate amount of the
outstanding LC Obligations shall not exceed $75,000,000 and (ii) the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate Commitment. No Facility LC
shall have an expiry date later than the earlier of (x) the fifth Business Day prior
to the Facility Termination Date and (y) one year after its issuance; provided that
any Facility LC with a one-year period may provide for the renewal thereof for
additional one-year periods but in no event shall the expiry date of such Facility
LCs extend beyond the period in clause (x) hereof. Notwithstanding the foregoing, a
Facility LC shall be permitted to have an expiry date after the date referred to in
clause (x) above if the Borrower shall have, on or prior to the date referred to in
clause (x) above, (a) deposited with the Administrative Agent cash collateral equal
to the outstanding face amount of such Facility LC or (b) delivered to the LC Issuer
a “back-to-back” letter of credit relative to such Facility LC from an issuer and in
form and substance satisfactory to each of the LC Issuer and the Administrative Agent
in its sole discretion. On the initial Borrowing Date each Existing Letter of Credit
shall be deemed to be a Facility LC issued under and governed in all respects by the
terms and conditions of this Agreement, and each Lender shall participate in each
Existing Letter of Credit in an amount equal to its Pro Rata Share of the face amount
of such Existing Letter of Credit.
2.20.2 Participations. Upon the issuance, deemed issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.20, the LC Issuer
shall be deemed, without further action by any party hereto, to have unconditionally
and irrevocably sold to each Lender, and each Lender shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably purchased from
the LC Issuer, a participation in such Facility LC (and each Modification thereof)
and the related LC Obligations in proportion to its Pro Rata Share.
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2.20.3 Notice. Subject to Section 2.20.1, the Borrower shall give the LC
Issuer notice prior to 10:00 a.m. (Chicago time) at least three Business Days prior
to the proposed date of issuance or Modification of each Facility LC, specifying the
beneficiary, the proposed date of issuance (or Modification) and the expiry date of
such Facility LC, and describing the proposed terms of such Facility LC and the
nature of the transactions proposed to be supported thereby. Upon receipt of such
notice, the LC Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender, of the contents thereof and
of the amount of such Lender’s participation in such proposed Facility LC. The
issuance or Modification by the LC Issuer of any Facility LC shall, in addition to
the conditions precedent set forth in Article IV (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent that
such Facility LC shall be satisfactory to the LC Issuer and that the Borrower shall
have executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have reasonably
requested (each, a “Facility LC Application”). In the event of any conflict between
the terms of this Agreement and the terms of any Facility LC Application, the terms
of this Agreement shall control.
2.20.4 Fees. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata Shares,
with respect to each Facility LC, a letter of credit fee at a per annum rate equal to
the Applicable Fee Rate on the stated amount under such Facility LC, such fee to be
payable in arrears on each Payment Date (the “LC Fee”). The Borrower shall also pay
to the LC Issuer for its own account (i) a fronting fee at a rate to be agreed upon
between the LC Issuer and the Borrower (such fee to be payable in arrears on each
Payment Date), and (ii) documentary and processing charges in connection with the
issuance or Modification of and draws under Facility LCs in accordance with the LC
Issuer’s standard schedule for such charges as in effect from time to time.
2.20.5 Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC, the
LC Issuer shall notify the Administrative Agent and the Administrative Agent shall
promptly notify the Borrower and each other Lender as to the amount to be paid by the
LC Issuer as a result of such demand and the proposed payment date (the “LC Payment
Date”). The responsibility of the LC Issuer to the Borrower and each Lender shall be
only to determine that the documents (including each demand for payment) delivered
under each Facility LC in connection with such presentment shall be in conformity in
all material respects with such Facility LC. The LC Issuer shall endeavor to exercise
the same care in the issuance and administration of the Facility LCs as it does with
respect to letters of credit in which no participations are granted, it being
understood that in the absence of any gross negligence or willful misconduct by the
LC Issuer, each Lender shall be unconditionally and irrevocably liable without regard
to the occurrence of any Default or any condition precedent whatsoever, to reimburse
the LC Issuer on demand for (i) such Lender’s Pro Rata Share of the amount of each
payment made by the LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.20.6 below, plus (ii) interest on
the foregoing amount to be reimbursed by such Lender, for each day from the date of
the LC Issuer’s demand for such reimbursement (or, if such demand is made after 11:00
a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date
on which such Lender pays the amount to be reimbursed by it, at a rate of interest
per annum equal to the Federal Funds Effective Rate for the first three days and,
thereafter, at a rate of interest equal to the rate applicable to Floating Rate
Advances.
2.20.6 Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable LC
Payment Date for any amounts to be paid by the LC Issuer upon any drawing under any
Facility LC, without presentment, demand, protest or other formalities of any kind;
provided that neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the terms of such
Facility LC or (ii) the LC Issuer’s failure to pay under any Facility LC issued by it
after the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. All such amounts paid by the LC Issuer and remaining
unpaid by the Borrower shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to (x) the rate applicable to Floating Rate Advances
for such day if such day falls on or before the applicable LC Payment Date and (y)
the sum of 2% plus the rate applicable to Floating Rate Advances for such day if such
day falls after such LC Payment Date. The LC Issuer will pay to each Lender ratably
in accordance with its Pro Rata Share all amounts received by it from the Borrower
for application in payment, in whole or in part, of the Reimbursement Obligation in
respect of any Facility LC issued by the
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LC Issuer, but only to the extent such Lender has made payment to the LC Issuer in
respect of such Facility LC pursuant to Section 2.20.5. Subject to the terms and
conditions of this Agreement (including without limitation the submission of a
Borrowing Notice in compliance with Section 2.9 and the satisfaction of the
applicable conditions precedent set forth in Article IV), the Borrower may request an
Advance hereunder for the purpose of satisfying any Reimbursement Obligation.
2.20.7 Obligations Absolute. The Borrower’s obligations under this Section
2.20 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the Borrower may
have or have had against the LC Issuer, any Lender or any beneficiary of a Facility
LC. The Borrower further agrees with the LC Issuer and the Lenders that the LC Issuer
and the Lenders shall not be responsible for, and the Borrower’s Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon, even
if such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility LC or any financing institution or other
party to whom any Facility LC may be transferred or any claims or defenses whatsoever
of the Borrower or of any of its Affiliates against the beneficiary of any Facility
LC or any such transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by the LC Issuer or any Lender under or in connection with
each Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall not
put the LC Issuer or any Lender under any liability to the Borrower. Nothing in this
Section 2.20.7 is intended to limit the right of the Borrower to make a claim against
the LC Issuer for damages as contemplated by the proviso to the first sentence of
Section 2.20.6.
2.20.8 Actions of LC Issuer. The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document 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, independent
accountants and other experts selected by the LC Issuer. The LC Issuer shall be fully
justified in failing or refusing to take any action under this Agreement unless it
shall first have received such advice or concurrence of the Required Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
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.
Notwithstanding any other provision of this Section 2.20, the LC Issuer shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon the Lenders
and any future holders of a participation in any Facility LC.
2.20.9 Indemnification. The Borrower hereby agrees to indemnify and hold
harmless each Lender, the LC Issuer and the Administrative Agent, and their
respective directors, officers, agents and employees from and against any and all
claims and damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Administrative Agent may incur (or which may be claimed against such
Lender, the LC Issuer or the Administrative Agent by any Person whatsoever) by reason
of or in connection with the issuance, execution and delivery or transfer of or
payment or failure to pay under any Facility LC or any actual or proposed use of any
Facility LC, including, without limitation, any claims, damages, losses, liabilities,
costs or expenses which the LC Issuer may incur by reason of or in connection with
(i) the failure of any other Lender to fulfill or comply with its obligations to the
LC Issuer hereunder (but nothing herein contained shall affect any rights the
Borrower may have against any defaulting Lender) or (ii) by reason of or on account
of the LC Issuer issuing any Facility LC which specifies that the term “Beneficiary”
included therein includes any successor by operation of law of the named Beneficiary,
but which Facility LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document, satisfactory to the LC
Issuer, evidencing the appointment of such successor Beneficiary; provided that the
Borrower shall not be required to indemnify any Lender, the LC Issuer or the
Administrative Agent for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, caused by (x) the willful misconduct or gross
negligence of the LC Issuer in determining whether a request presented under any
Facility LC complied with the terms of such Facility LC or (y) the LC Issuer’s
failure to pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC.
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Nothing in this Section 2.20.9 is intended to limit the obligations of the Borrower
under any other provision of this Agreement.
2.20.10 Lenders’ Indemnification. Each Lender shall, ratably in accordance
with its Pro Rata Share, indemnify the LC Issuer, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result from
such indemnitees’ gross negligence or willful misconduct or the LC Issuer’s failure
to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such indemnitees may
suffer or incur in connection with this Section 2.20 or any action taken or omitted
by such indemnitees hereunder.
2.20.11 Facility LC Collateral Account. The Borrower agrees that it will,
upon the request of the Administrative Agent or the Required Lenders and until the
final expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuer or the Lenders in respect of any Facility LC, maintain a
special collateral account pursuant to arrangements satisfactory to the
Administrative Agent (the “Facility LC Collateral Account”) at the Administrative
Agent’s office at the address specified pursuant to Article XIII, in the name of such
Borrower but under the sole dominion and control of the Administrative Agent, for the
benefit of the Lenders and in which such Borrower shall have no interest other than
as set forth in Section 8.1. The Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the
LC Issuer, a security interest in all of the Borrower’s right, title and interest in
and to all funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and performance of the
Obligations. The Administrative Agent will invest any funds on deposit from time to
time in the Facility LC Collateral Account in certificates of deposit of JPMCB having
a maturity not exceeding 30 days. Nothing in this Section 2.20.11 shall require the
Borrower to deposit any funds in the Facility LC Collateral Account, obligate the
Administrative Agent to require the Borrower to deposit any funds in the Facility LC
Collateral Account or limit the right of the Administrative Agent to release any
funds held in the Facility LC Collateral Account in each case other than as required
by Section 8.1.
2.20.12 Rights as a Lender. In its capacity as a Lender, the LC Issuer shall
have the same rights and obligations as any other Lender.
2.21. Replacement of Lender. If the Borrower is required pursuant to Section
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender’s obligation to make
or continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended
pursuant to Section 3.3 (any Lender so affected an “Affected Lender”), the Borrower may elect, if
such amounts continue to be charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall
have occurred and be continuing at the time of such replacement, and provided further that,
concurrently with such replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase
for cash the Advances and other Obligations due to the Affected Lender pursuant to an assignment
substantially in the form of Exhibit D and to become a Lender for all purposes under this Agreement
and to assume all obligations of the Affected Lender to be terminated as of such date and to comply
with the requirements of Section 12.1 applicable to assignments, and (ii) the Borrower shall pay to
such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and
other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to such Affected
Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to the payment which would
have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such
Affected Lender been prepaid on such date rather than sold to the replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation, policy, guideline
or directive (whether or not having the force of law), or any change in the interpretation or
administration thereof by any governmental or quasi-governmental authority, central bank or
comparable
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agency charged with the interpretation or administration thereof, or compliance by any Lender
or applicable Lending Installation or the LC Issuer with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable agency:
| (i) | subjects any Lender or any applicable Lending Installation or the LC Issuer to any Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender or the LC Issuer in respect of its Eurodollar Loans, Facility LCs or participations therein, or | ||
| (ii) | imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Advances), or | ||
| (iii) | imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation or the LC Issuer of making, funding or maintaining its Eurodollar Loans, or of issuing or participating in Facility LCs, or reduces any amount receivable by any Lender or any applicable Lending Installation or the LC Issuer in connection with its Eurodollar Loans, Facility LCs or participations therein, or requires any Lender or any applicable Lending Installation or the LC Issuer to make any payment calculated by reference to the amount of Eurodollar Loans, Facility LCs or participations therein held or interest or LC Fees received by it, by an amount deemed material by such Lender, applicable Lending Installation or the LC Issuer as the case may be, |
and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending
Installation or the LC Issuer, as the case may be, of making or maintaining its Eurodollar Loans or
Commitment or of issuing or participating in Facility LCs or to reduce the return received by such
Lender or applicable Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein, then, within 30 days of
demand by such Lender or the LC Issuer, as the case may be, the Borrower shall pay such Lender or
the LC Issuer, as the case may be, such additional amount or amounts as will compensate such Lender
or the LC Issuer, as the case may be, for such increased cost or reduction in amount received.
Notwithstanding any of the foregoing, unless a Lender gives notice to the Borrower that it is
obligated to pay an amount under this Section 3.1 within 270 days after the increased cost or
reduced return giving rise to such a claim is incurred or suffered, then such Lender shall only be
entitled to be compensated to the extent that such increased cost or reduced return is incurred or
suffered within the 270-day period before such Lender gives such notice to the Borrower; provided
that if the circumstances giving rise to such a claim have a retroactive effect, then such 270-day
period shall be extended to include the period of such retroactive effect.
3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC Issuer
reasonably determines the amount of capital required or expected to be maintained by such Lender or
the LC Issuer, any Lending Installation of such Lender or the LC Issuer, or any corporation
controlling such Lender or the LC Issuer is increased as a result of a Change, then, within 15 days
of demand by such Lender or the LC Issuer, the Borrower shall pay such Lender or the LC Issuer the
amount necessary to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender reasonably determines is attributable to this Agreement, its
Outstanding Credit Exposure Loans or its Commitment to make Loans and issue or participate in
Facility LCs, as the case may be, hereunder (after taking into account such Lender’s or the LC
Issuer’s policies as to capital adequacy). “Change” means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this Agreement which affects
the amount of capital required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer. “Risk-Based
Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on
the date of this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States implementing the July
1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled
“International Convergence of Capital Measurements and Capital Standards,” including transition
rules, and any amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would violate any applicable
law, rule, regulation, or directive, whether or not having the force of law, or if the Required
Lenders determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then the Administrative
Agent shall suspend the availability of Eurodollar
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Advances and require any affected Eurodollar Advances to be repaid or converted to Floating
Rate Advances, subject to the payment of any funding indemnification amounts required by Section
3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar Advance is not made, continued or converted
on the date specified by the Borrower for any reason other than default by the Lenders, the
Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurodollar Advance, but excluding any loss of margin.
3.5. Taxes. (i) All payments by the Borrower to or for the account of any
Lender, the LC Issuer or the Administrative Agent hereunder or under any Loan Document shall be
made free and clear of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender,
the LC Issuer or the Administrative Agent, (a) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such deductions been
made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof
within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or future stamp or documentary
taxes and any other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or Facility LC Application or from the execution or
delivery of, or otherwise with respect to, this Agreement or any Note or Facility LC Application
(“Other Taxes”).
(iii) The Borrower hereby agrees to indemnify the Administrative Agent, the LC Issuer and each
Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed on amounts payable under this Section 3.5) paid by the Administrative Agent,
the LC Issuer or such Lender as a result of its Commitment, any Loans made by it hereunder, or
otherwise in connection with its participation in this Agreement and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto. Payments due under
this indemnification shall be made within 30 days of the date the Administrative Agent, the LC
Issuer or such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United States of America or a
state thereof (each a “Non-U.S. Lender”) agrees that it will, not more than ten Business Days after
the date of this Agreement, (i) deliver to the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to the Administrative Agent a United States
Internal Revenue Service Form W-8 or W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S. Lender further undertakes to
deliver to each of the Borrower and the Administrative Agent (x) renewals or additional copies of
such form (or any successor form) on or before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably requested by the Borrower
or the Administrative Agent. All forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event (including without
limitation 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 or amendment with respect to
it and such Lender advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide the Borrower with an
appropriate form pursuant to clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided that, should a Non-U.S. Lender which
is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
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(vi) Any Lender that is entitled to an exemption from or reduction of withholding tax with
respect to payments under this Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental authority of the United
States or any other country or any political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which rendered its exemption
from withholding ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative
Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including
taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent). The obligations of the Lenders under this Section 3.5(vii) shall survive the
payment of the Obligations and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with respect to its
Eurodollar Loans to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and
3.5 or to avoid the unavailability of Eurodollar Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations of the Borrower
under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of
this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness and Initial Advance. This Agreement shall not become
effective and the Lenders shall not be required to make the initial Advances hereunder unless (i)
the Borrower has satisfied the conditions precedent set forth in Section 4.2, (ii) the Borrower has
furnished to the Administrative Agent with sufficient copies for the Lenders each of the following
documents and (iii) each of the following events shall have occurred, as applicable (such date
being the “Effective Date”):
| (i) | Copies of the articles or certificate of incorporation of the Borrower and each Material Domestic Subsidiary, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation and each other jurisdiction as requested by Administrative Agent, as well as any other information required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA PATRIOT Act. | ||
| (ii) | Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Material Domestic Subsidiary, of its by-laws and of the resolutions of its Board of Directors or executive committee as the case may be and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party. | ||
| (iii) | An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Material Domestic Subsidiary, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and each Material Domestic Subsidiary authorized to sign the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower. |
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| (iv) | A certificate, signed by the chief financial officer of the Borrower, stating that on the Effective Date, (a) both immediately before and immediately after the effectiveness of this Agreement, no Default or Unmatured Default (as such terms are defined in either the Existing Credit Agreement or this Agreement) has occurred and is continuing and (b) there are no unreimbursed drawings under Existing Letters of Credit. | ||
| (v) | A written opinion of the Borrower’s counsel, addressed to the Administrative Agent and the Lenders in form and substance reasonably acceptable to the Administrative Agent. | ||
| (vi) | Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender. | ||
| (vii) | This Agreement executed by the Borrower. | ||
| (viii) | The Affirmation executed by the Borrower and each Guarantor. | ||
| (ix) | All accrued Facility LC fees and commitment fees and all outstanding Loans under the Existing Credit Agreement shall have been paid and all separately agreed amounts owing from the Borrower to the Administrative Agent or the Arranger shall have been paid. | ||
| (x) | Insurance certificates for all insurance required to be maintained pursuant to Section 4.3.2 of the Security Agreement and the Subsidiary Security Agreement naming the Administrative Agent, on behalf of the Lenders, as loss payee for any casualty policies and additional insured for any liability policies, all in form and substance reasonably satisfactory to the Administrative Agent. | ||
| (xi) | A solvency certificate with respect to the Borrower and its Subsidiaries signed by an Authorized Officer of Borrower in form and substance reasonably acceptable to the Administrative Agent. | ||
| (xii) | Audited consolidated financial statements of the Borrower for fiscal years 2004 and 2005 and unaudited consolidated financial statements of the Borrower for each fiscal quarter thereafter for which such financial statements are publicly available, in each case satisfactory to the Administrative Agent. | ||
| (xiii) | Projections for the Borrower and its Subsidiaries for fiscal years 2006 through 2010. | ||
| (xiv) | Copies of searches of financing statements filed under the Uniform Commercial Code with respect to the assets of the Borrower and its Domestic Subsidiaries in such jurisdictions as the Administrative Agent may request. | ||
| (xv) | A consent from each Exiting Lender in form satisfactory to the Administrative Agent. | ||
| (xvi) | Such other documents as any Lender or its counsel may have reasonably requested. |
4.2. Each Credit Extension. The Lenders shall not be required to make any
Credit Extension unless on the applicable Borrowing Date:
| (i) | There exists no Default or Unmatured Default. | ||
| (ii) | The representations and warranties contained in Article V are true and correct in all material respects as of such Credit Extension Borrowing Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date. | ||
| (iii) | All legal matters incident to the making of such Credit Extension shall be reasonably satisfactory to the Lenders and their counsel. |
Each Borrowing Notice, Swing Line Borrowing Notice, or request for issuance of a Facility
LC, as the case may be, with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly completed compliance certificate in substantially the form of Exhibit B
as a condition to making a Credit Extension.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders as of the date hereof (solely with respect
to Sections 5.1 and 5.2), as of the Effective Date and as of each Credit Extension Date thereafter,
that:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to be in good standing or
qualified to do business could not reasonably be expected to result in a Material Adverse Effect.
5.2. Authorization and Validity. Each of the Borrower and its Subsidiaries
has the power and authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery by each of the
Borrower and its Subsidiaries of the Loan Documents to which it is a party and the performance of
its obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents to which each of the Borrower and its Subsidiaries is a party constitute legal, valid and
binding obligations of each of the Borrower and its Subsidiaries enforceable against each of the
Borrower and its Subsidiaries in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery by
each of the Borrower and its Subsidiaries of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the provisions thereof
will (i) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) violate the Borrower’s or any
Subsidiary’s articles or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating agreement or limited
liability company agreement, as the case may be, (iii) violate the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject,
or by which it, or its Property, is bound, or conflict with or constitute a default thereunder,
except where such violation, conflict or default could not reasonably be expected to result in a
Default under Section 7.5 or a Material Adverse Effect, or (iv) result in, or require, the creation
or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the
terms of any material indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property is bound. No order,
consent, adjudication, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any governmental or public body
or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries or the absence of which could reasonably be expected to result in a Material Adverse
Effect, is required to be obtained by the Borrower or any of its Subsidiaries in connection with
the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4. Financial Statements. The December 31, 2005 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared
in accordance with generally accepted accounting principles in effect on the date such statements
were prepared and fairly present, in all material respects, the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such date and the consolidated results of
their operations for the period then ended.
5.5. Material Adverse Change. Since December 31, 2005 there has been no
change in the business, Property, condition (financial or otherwise) or results of operations of
the Borrower and its Subsidiaries, taken as a whole, which could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other material tax returns which are required to be filed and have paid
all taxes due pursuant to said returns or pursuant to any assessment received by the Borrower or
any of its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP. The United
States income tax returns of the
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Borrower and its Subsidiaries have been audited by the Internal
Revenue Service through the fiscal year ended December 31, 2001. No material tax liens have been
filed and no material claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in respect of any taxes or
other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any
of their officers, threatened against or affecting the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or
delay the making of any Credit Extensions. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a Material Adverse Effect,
neither the Borrower nor any of its Subsidiaries has any material contingent obligations not
provided for or disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the Effective Date, setting forth their respective jurisdictions
of organization and the percentage of their respective Capital Stock or other ownership interests
owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of Capital
Stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued and are fully paid
and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $10,000,000. Neither the Borrower, any of its Subsidiaries, nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans in excess of $10,000,000 in the aggregate. Each Plan complies in
all material respects with all applicable requirements of law and regulations. No Reportable Event
has occurred with respect to any Plan which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower, any of its Subsidiaries nor any other member of the Controlled Group
has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize
or terminate any Plan to the extent such action could reasonably be expected to result in aggregate
liability to the Borrower in excess of $10,000,000.
5.10. Accuracy of Information. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact necessary to make the
statements contained therein, in light of the circumstances under which such statements were made,
not misleading; provided, that with respect to projected or pro-forma financial information, the
Borrower represents only that such information was prepared in good faith based on assumptions
believed to be reasonable at the time prepared.
5.11. Regulation U. Margin stock (as defined in 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, pledge, or other restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default could reasonably be
expected to have a Material Adverse Effect.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any domestic or
foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material Adverse
Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 5.14, on the
Effective Date, the Borrower and its Subsidiaries will have good title (fee or leasehold, as
applicable), free of all Liens other than those permitted by Section 6.15, to all of the Property
and assets material to its business.
5.15. Plan Assets; Prohibited Transactions. Neither the Borrower nor any of
its Subsidiaries is an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the
execution of this Agreement nor the making of the Loans or Facility LCs hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
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5.16. Environmental Matters. In the ordinary course of its business, the
officers of the Borrower and its Subsidiaries consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Borrower due to Environmental Laws. On the basis
of this consideration, the Borrower has concluded that Environmental Laws cannot reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any written notice to the effect that its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a release of any toxic
or hazardous waste or substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
“investment company” or a company “controlled” by an “investment company”, within the meaning of
the Investment Company Act of 1940, as amended.
5.18. Insurance. Schedule 5.18 summarizes the property and casualty
insurance coverage carried by the Borrower with respect to itself and its Domestic Subsidiaries as
of the Effective Date. Such insurance coverage complies with Section 6.6.
5.19. Solvency. (i) On the Effective Date and on each subsequent Credit
Extension Date, giving effect to any Credit Extensions made on such date and after giving effect to
the application of the proceeds of such Credit Extensions, (a) the fair value of the assets of the
Borrower and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated basis on their debts
and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are conducted on the Effective Date.
(ii) The Borrower does not intend to, or to permit any of its Subsidiaries to, and does not
believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
5.20. Collateral Documents. (i) Each of the Security Agreement and the
Subsidiary Security Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof to the extent a security interest can be created by the
execution and delivery of a security agreement under the Uniform Commercial Code. In the case of
Capital Stock of a Subsidiary that constitutes Certificated Securities (as defined in the Uniform
Commercial Code), when stock certificates representing such Capital Stock are delivered to the
Administrative Agent pursuant to the Security Agreement or the Subsidiary Security Agreement
together with undated stock powers covering such certificates executed in blank, the grantors
thereunder shall have granted to the Administrative Agent a fully perfected Lien on, and security
interest in, all right, title and interest in the Capital Stock of such Subsidiary (except as
otherwise provided in the Security Agreement or the Subsidiary Security Agreement with respect to
the Capital Stock of any Foreign Subsidiary) and the proceeds thereof, as security for the
Obligations, in each case prior and superior in right to any other Person (except Liens permitted
by Section 6.15, and subject, in the case of Proceeds, to the applicable limitations under Section
9-315 of the Uniform Commercial Code). In the case of any Capital Stock of a Subsidiary that
constitute General Intangibles or Uncertificated Securities (as defined in the Uniform Commercial
Code), when financing statements in appropriate form are filed in the offices specified on Schedule
5.20 and, in the case of Uncertificated Securities, the Administrative Agent has obtained “control”
(within the meaning of the Uniform Commercial Code) of such Uncertificated Securities, the grantors
thereunder shall have granted to the Administrative Agent a fully perfected Lien on, and security
interest in, all right, title and interest in such Collateral (except as otherwise provided in the
Security Agreement or the Subsidiary Security Agreement with respect to the Capital Stock of any
Foreign Subsidiary) and the Proceeds thereof, as security for the Obligations, in each case prior
and superior in right to any other Person (except Liens permitted by Section 6.15 and subject, in
the case of Proceeds to the applicable limitations under Section 9-315 of the Uniform Commercial
Code). Schedule 5.20 specifies the locations in which to file the financing statements which may
perfect a legal, valid and enforceable security interest in the Capital Stock of its Subsidiaries
granted under the Security Agreement or Subsidiary Security Agreement in the Investment Property
pursuant to Section 9-305(c) of the Uniform Commercial Code.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise consent in
writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance with GAAP, and
furnish to the Lenders:
| (i) | Within 90 days after the close of each of its fiscal years, an unqualified (except for qualifications relating to changes in accounting GAAP or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants and shall be in a form reasonably satisfactory to the Administrative Agent) for itself and its Subsidiaries, including balance sheets as of the end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by any management letter prepared by said accountants. | ||
| (ii) | Within 45 days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated and consolidating profit and loss and reconciliation of surplus statements and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer. | ||
| (iii) | As soon as available, but in any event within 30 days after the beginning of each fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries for such fiscal year; provided, however, that the preceding plan and forecast shall be required to be delivered only if, as of September 30 of the year immediately preceding the year in which such plan and forecast would otherwise be required to be delivered, the Leverage Ratio is greater than 2.00 to 1.0. | ||
| (iv) | Together with the financial statements required under Sections 6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit B signed by its chief financial officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof. | ||
| (v) | As soon as possible and in any event within 10 Business Days after the Borrower knows that any Reportable Event has occurred with respect to any Single Employer Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto. | ||
| (vi) | As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any written notice or written claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any written notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect. | ||
| (vii) | Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished. | ||
| (viii) | Promptly upon the filing thereof, notice of the filing to the Administrative Agent of all registration statements and periodic and current reports on forms 10-K, 10-Q and 8-K which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission. | ||
| (ix) | Such other information (including non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request. |
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If any information which is required to be furnished to the Lenders under this Section 6.1 is
required by law or regulation to be filed by the Borrower with a government body on an earlier
date, then the information required hereunder shall, to the extent reasonably practicable under the
circumstances, be furnished to the Lenders at such earlier date.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Advances for general corporate purposes, including acquisitions otherwise
permitted hereunder which have been approved by the Board of Directors or analogous body of the
Person to be acquired. The Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Advances to purchase or “carry” (as defined in Regulation U) any “margin stock” (as defined in Regulation U).
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary
to, give notice in writing to the Lenders of the occurrence of any Default or Unmatured Default
promptly after an Authorized Officer has knowledge of such Default or Unmatured Default.
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted (except that Subsidiaries acquired pursuant
to Section 6.14(vi) may engage in different fields of enterprise) and do all things necessary to
remain duly incorporated or organized, validly existing and (to the extent such concept applies to
such entity) in good standing as a domestic corporation, partnership or limited liability company
in its jurisdiction of incorporation or organization, as the case may be, and maintain all
requisite authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to be in good standing or maintain such qualifications could
not reasonably be expected to have a Material Adverse Effect and except for liquidations of
Subsidiaries which could not reasonably be expected to have a Material Adverse Effect so long as if
the liquidating Subsidiary is a Guarantor, the entity to which the assets of the liquidating
Subsidiary are distributed is either the Borrower or a Guarantor.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable material foreign, state and local
tax returns required by law and pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain in full force and effect, insurance policies and programs, with such deductibles or
self-insurance amounts as reflect coverage that is reasonably consistent with prudent industry
practice. The Borrower will furnish to any Lender upon request information in reasonable detail as
to the insurance policies and programs of the Borrower and its Subsidiaries.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all Environmental Laws,
except where the failure to comply could not reasonably be expected to have a Material Adverse
Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep, in all material
respects, its material Property in good repair, working order and condition, ordinary wear and tear
and damage from casualty and condemnation excepted, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection therewith may be properly
conducted at all times, subject to interruption for repairs, maintenance and restoration.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective representatives and agents, to
inspect any of the Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of the Borrower and
each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers upon reasonable
prior notice and at such reasonable times and intervals as the Administrative Agent or any Lender
may request.
6.10. Dividends. The Borrower will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its Capital Stock (other than
dividends by way of stock split or otherwise payable in its own common
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stock) or redeem, repurchase or otherwise acquire or retire any of its Capital Stock at any
time outstanding, except that (i) any Subsidiary may declare and pay dividends or make
distributions to the Borrower or to a Wholly-Owned Subsidiary, (ii) the Borrower may declare and
pay dividends on its Capital Stock not in excess of $10,000,000 in any calendar year provided that
no Default or, to the knowledge of an Authorized Officer after due inquiry, Unmatured Default shall
exist before or after giving effect to the declaration of such dividends or be created as a result
thereof and no Default or Unmatured Default under Section 7.2 or breach of Section 6.23 shall exist
before or after giving effect to the payment of such dividend or be created as a result thereof,
(iii) the Borrower may from time to time repurchase its Capital Stock for aggregate consideration
not in excess of $60,000,000, provided that no Default or, to the knowledge of an Authorized
Officer after due inquiry, Unmatured Default shall exist before or after giving effect to any such
repurchase or be created as a result thereof, (iv) any non-Wholly-Owned Subsidiary of the Borrower
may declare and pay dividends or make other distributions to its shareholders generally so long as
the Borrower or its respective Subsidiary which owns Capital Stock in the Subsidiary paying such
dividends or making such other distributions receives at least its proportionate share thereof
(based on its relative holdings of Capital Stock in the Subsidiary paying such dividends or making
such other distributions and taking into account relative preferences, if any, of the various
classes of Capital Stock in such Subsidiary) and (v) the Borrower may redeem, repurchase or
otherwise acquire any of its Capital Stock issued in connection with employee stock options or
restricted stock grants not in excess of $10,000,000 in any calendar year provided that no Default
or, to the knowledge of an Authorized Officer after due inquiry, Unmatured Default shall exist
before or after giving effect to such redemption, repurchase or acquisition or be created as a
result thereof.
6.11. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
| (i) | The Loans and Indebtedness in respect of Facility LCs outstanding from time to time under this Agreement. | ||
| (ii) | Indebtedness existing on the Effective Date and described in Schedule 6.11 and extensions, renewals and replacements thereof not increasing the aggregate principal amount thereof outstanding at the time of such extension, renewal or replacement. | ||
| (iii) | Indebtedness arising under Rate Management Transactions related to the Loans or otherwise in the ordinary course of business. | ||
| (iv) | Indebtedness in respect of guaranties executed by any Subsidiary with respect to any Indebtedness or other obligations of the Borrower, provided such Indebtedness is not incurred by the Borrower in violation of this Agreement. | ||
| (v) | Indebtedness in respect of guaranties executed by the Borrower with respect to any Indebtedness or other obligations of a Subsidiary entered into in the ordinary course of business. | ||
| (vi) | Indebtedness assumed in connection with an Acquisition permitted under Section 6.14, provided, such Indebtedness was not created in anticipation of or as a result of such Acquisition. | ||
| (vii) | Indebtedness owing to the Borrower or a Subsidiary in respect of an Investment permitted by Section 6.14(iii) or (iv). | ||
| (viii) | Indebtedness of the Borrower owing to a Subsidiary which is subordinated to the Obligations on substantially the terms set forth on Exhibit C hereto or on other terms satisfactory to the Administrative Agent. | ||
| (ix) | Other Indebtedness at no time exceeding 10% of Consolidated Net Worth in aggregate outstanding principal amount (determined as of the most recent fiscal quarter end for which financial statements have been provided pursuant to Section 6.1(i) or (ii)). |
6.12. Merger. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a Subsidiary may merge into or
consolidate with (i) the Borrower, with the Borrower as the surviving entity, or (ii) a
Wholly-Owned Subsidiary.
6.13. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other Person, except:
| (i) | Sales of inventory in the ordinary course of business. |
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| (ii) | The disposition in the ordinary course of business of equipment or inventory that is, in either case, obsolete, excess or no longer used or useful in the Borrower’s or its Subsidiaries’ businesses and the subleasing in the ordinary course of business of leased properties which are excess properties or are no longer used or useful in the Borrower’s or its Subsidiaries’ businesses. | ||
| (iii) | Leasing of assets between (a) the Borrower and its Subsidiaries or (b) any Subsidiary and another Subsidiary. | ||
| (iv) | Sale or transfer of the Capital Stock or Property of Glacier Park, Inc. upon expiration of the Concession Agreement. | ||
| (v) | Leases, sales or other dispositions of its Property that, together with all other Property of the Borrower and its Subsidiaries previously leased, sold or disposed of (other than dispositions permitted by Sections 6.13(i) through (iv)) as permitted by this Section during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not in the aggregate exceed 10% of Consolidated Net Worth as of the end of such month. |
6.14. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including without limitation,
loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to
become a partner in any partnership or joint venture, or to make any Acquisition of any Person,
except:
| (i) | Cash Equivalent Investments. | ||
| (ii) | Investments constituting non-cash consideration for dispositions of assets permitted hereunder. | ||
| (iii) | Existing Investments in Subsidiaries and other Investments in existence on the Effective Date and described in Schedule 6.14. | ||
| (iv) | Investments made after the Effective Date in Persons which are Subsidiaries, provided that immediately after giving effect to each Investment made pursuant to this section Investments in Foreign Subsidiaries and non-Wholly-Owned Subsidiaries (other than Investments disclosed on Schedule 6.14) shall not exceed in the aggregate 10% of Consolidated Net Worth (determined as of the most recent fiscal quarter end for which financial statements have been provided pursuant to Section 6.1(i) or (ii)). | ||
| (v) | Acquisitions after the Effective Date of (or of all or substantially all of the assets of) entities engaged in substantially the same or related lines of business as the Borrower, so long as (i) the aggregate consideration (including cash, other property, stock and debt assumption, with such property and stock valued at fair market value at the time of such Acquisition) for all such Acquisitions in any twelve-month period shall not exceed $125,000,000 less the amount of Investments made pursuant to Section 6.14(vi) during such twelve-month period; (ii) after giving effect to each such Acquisition, the Borrower shall be in compliance with its covenants hereunder, and on a pro forma basis the Borrower would be in compliance therewith for the previous four fiscal quarters, and for any Acquisition with aggregate consideration (including cash, other property, stock and debt assumption, with such property and stock valued at fair market value at the time of such Acquisition) in excess of $50,000,000, the Borrower shall have delivered to the Administrative Agent a certificate executed by an Authorized Officer setting forth the calculations demonstrating such compliance and (iii) both before and after giving effect to such Acquisition no Default exists (each such entity and each entity acquired pursuant to Section 6.14(vi), an “Acquired Company”). | ||
| (vi) | Acquisitions after the Effective Date of (or of all or substantially all of the assets of) entities not engaged in substantially the same or related lines of business as the Borrower, so long as (i) the aggregate consideration (including cash, other property, stock and debt assumption, with such property and stock valued at fair market value at the time of such Acquisition) for all such Acquisitions in any twelve-month period shall not exceed $50,000,000; (ii) after giving effect to each such Acquisition, the Borrower shall be in compliance with its covenants hereunder, and on a pro forma basis the Borrower would be in compliance therewith for the previous four fiscal quarters; (iii) both before and after giving effect to such Acquisition no Default exists; and (iv) the Borrower gives the Administrative Agent prior written notice of such Acquisition, which notice shall describe the proposed Acquisition in reasonable detail, including the related consideration and the line(s) of business of the Acquired Company. |
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| (vii) | Investments in Rate Management Transactions related to the Loans or entered into in the ordinary course of business. | ||
| (viii) | Investments received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with customers and suppliers arising in the ordinary course of business or other securities of a de minimis value. | ||
| (ix) | Loans to the trustee of the trust fund (“Trust”) identified in Section 2.1(hh) of the Viad Corp Employees’ Stock Ownership Plan, effective June 1, 1989 and restated January 1, 2004, and further restated June 1, 2005, to pay in full the outstanding principal amount due by the Trust pursuant to the Loan Agreement dated as of July 9, 2004 between the Trust and the Borrower in the amount of up to $10,693,000.00. | ||
| (x) | Loans permitted by Section 6.11(viii). |
6.15. Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries, except:
| (i) | Liens for taxes, assessments or governmental charges or levies on its Property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. | ||
| (ii) | Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 60 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books. | ||
| (iii) | Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation. | ||
| (iv) | Easements, building restrictions, zoning restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way interfere with the use thereof in the business of the Borrower or its Subsidiaries. | ||
| (v) | Liens existing on the Effective Date and described in Schedule 6.15, and extensions and renewals of any such Liens on the Property now subject thereto to the extent and for so long as the Indebtedness secured thereby is not increased, is expressly permitted hereunder and remains outstanding. | ||
| (vi) | Liens in favor of the Administrative Agent, for the benefit of the Lenders, granted pursuant to any Collateral Document. | ||
| (vii) | Liens existing on Property acquired pursuant to an Acquisition permitted under Section 6.14, provided such Liens existed prior to the time of such Acquisition and were not created in contemplation thereof. | ||
| (viii) | Other Liens securing Indebtedness at no time exceeding 10% of Consolidated Net Worth in aggregate outstanding principal amount (determined as of the most recent fiscal quarter end for which financial statements have been provided pursuant to Section 6.1(i) or (ii)). |
6.16. Affiliates. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or sale of any Property
or service) with, or make any payment or transfer to, any Affiliate except (i) in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower’s or such
Subsidiary’s business and upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction or (ii) transactions among the Borrower and any Subsidiary that has executed a
Guaranty.
6.17. Amendments to Agreements. The Borrower will not, and will not permit
any Subsidiary to amend or terminate its certificate of incorporation, by-laws or other
organizational document or amend or terminate the Separation Agreements, in either case in a manner
that materially adversely affects the Lenders.
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6.18. Contingent Obligations. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including, without limitation,
any Contingent Obligation with respect to the obligations of a Subsidiary), except (i) by
endorsement of instruments for deposit or collection in the ordinary course of business and (ii)
for the Guaranty or any guaranty entered into pursuant to Section 6.22 or permitted by Section
6.11.
6.19. Financial Contracts. The Borrower will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial Contract, except Rate Management
Obligations permitted under Section 6.11.
6.20. Inconsistent Agreements. The Borrower shall not, and shall not permit
any Subsidiary to, enter into any indenture, agreement, instrument (or amendment thereto) or other
arrangement which (i) directly or indirectly prohibits or restrains, or has the effect of
prohibiting or restraining, or imposes materially adverse conditions upon, the incurrence or
repayment of the Obligations, the amendment of the Loan Documents, or the ability of any Material
Domestic Subsidiary or Glacier Park, Inc. to pay dividends or make other distributions on its
capital (except to the extent of existing contractual constraints of the Concession Agreement and
renewals thereof) or (ii) contains any provision which would be violated or breached by the making
of Credit Extensions or by the performance by the Borrower or any Subsidiary of any of its
obligations under any Loan Document.
6.21. Subsidiary Guaranties and Personal Property Pledges. Effective upon
any Person becoming a Material Domestic Subsidiary, the Borrower shall cause such Person to (i)
execute and deliver to the Administrative Agent for the benefit of the Lenders a guaranty of the
Obligations pursuant to a guaranty substantially similar to the Guaranty (or a joinder thereto) and
(ii) pledge to the Administrative Agent for the benefit of the Lenders a first priority security
interest in all personal property owned by such Person pursuant to a security agreement
substantially similar to the Subsidiary Security Agreement (or a joinder thereto), all pursuant to
documentation (including related certificates, opinions and financing statements) reasonably
acceptable to the Agent; provided, that if at any time any Domestic Subsidiaries which are
not party to the Guaranty or the Subsidiary Security Agreement (other than Glacier Park, Inc.)
hold, on an aggregate basis, an amount in excess of the lesser of (x) 10% of Consolidated Net
Income or (y) 10% of total assets (valued at the higher of book or fair market value) of the
Borrower and its Subsidiaries on a consolidated basis, in the case of both (x) and (y) calculated
as of the most recent fiscal quarter end for which financial statements are available, then one or
more of such Domestic Subsidiaries shall promptly execute a guaranty substantially in the form of
the Guaranty (or a joinder thereto) and a security agreement substantially in the form of the
Subsidiary Security Agreement or joinders thereto so that such threshold is no longer exceeded, all
pursuant to documentation (including related certificates, opinions and financing statements)
reasonably acceptable to the Agent. The Borrower shall notify the Administrative Agent as promptly
as possible but in any event within thirty (30) days following the date on which any Person is
required to join the Guaranty or Subsidiary Security Agreement in accordance with the provisions of
this Section 6.21. Notwithstanding the foregoing, if Glacier Park, Inc. shall become a Material
Domestic Subsidiary the foregoing provisions shall not be applicable to it if, at such time,
compliance by Glacier Park, Inc. with this Section 6.21 would result in a breach of then existing
contractual obligations of Glacier Park, Inc. not undertaken in anticipation of its becoming a
Material Domestic Subsidiary.
6.22. Subsidiary Stock Pledge. Effective upon any Person becoming a
Subsidiary after the Effective Date, the Borrower shall pledge, or shall cause to be pledged, all
of the Capital Stock thereof owned by the Borrower or any Subsidiary that has executed a Guaranty
to the Administrative Agent for the benefit of the Lenders pursuant to an amendment to the Security
Agreement or the Subsidiary Security Agreement, as applicable, and other documentation (including
related certificates, opinions and financing statements) reasonably acceptable to the
Administrative Agent; provided, that only 65% of the outstanding common stock of any
Foreign Subsidiary shall be required to be pledged pursuant hereto. The Borrower shall promptly
notify the Agent any time a Person becomes a Subsidiary.
6.23. Financial Covenants.
6.23.1. Fixed Charge Coverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters, for the then most
recently ended four fiscal quarters of (i) Consolidated EBITDA plus Consolidated
Rentals minus Consolidated Capital Expenditures to (ii) cash Consolidated Interest
Expense, plus Consolidated Rentals, plus scheduled principal payments in respect of
Indebtedness for money borrowed, plus expense for income taxes paid or accrued, all
calculated for the Borrower and its Subsidiaries on a consolidated basis, to be less
than 1.25 to 1.00.
6.23.2. Leverage Ratio. The Borrower will not permit the Leverage Ratio
determined as of the end of each of its fiscal quarters to be greater than 2.75 to
1.00.
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6.23.3. Minimum Net Worth. The Borrower will at all times maintain
Consolidated Net Worth of not less than (i) the sum of (A) $344,590,000 plus (B) 50%
of Consolidated Net Income earned in each fiscal quarter beginning with the quarter
ending June 30, 2006 (without deduction for losses) plus (C) 100% of the net cash
proceeds from all issuances of (or the fair market value at the time of contribution
of all assets contributed in exchange for) Capital Stock of the Borrower after the
Effective Date minus (ii) the amount of aggregate consideration expended by the
Borrower after the Effective Date for repurchases of its Capital Stock pursuant to
Section 6.10(iii).
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the
Borrower or any of its Subsidiaries to the Lenders or the Administrative Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or information delivered
in connection with this Agreement or any other Loan Document shall be materially false on the date
as of which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of any Reimbursement
Obligation within one Business Day after the same becomes due, or nonpayment of interest upon any
Loan or of any commitment fee, LC Fee or other obligations under any of the Loan Documents within
five Business Days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of Section 6.2,
6.3, 6.4 or Sections 6.10 through 6.23 inclusive.
7.4. The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article VII) of any of the terms or provisions of this Agreement
which is not remedied within thirty days after written notice from the Administrative Agent or any
Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due any Material
Indebtedness; or the default by the Borrower or any of its Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision or condition
contained in any Material Indebtedness Agreement, or any other event shall occur or condition
exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of
such Material Indebtedness or the lender(s) under any Material Indebtedness Agreement to cause,
such Material Indebtedness to become due prior to its stated maturity or any commitment to lend
under any Material Indebtedness Agreement to be terminated prior to its stated expiration date; or
any Material Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment)
prior to the stated maturity thereof.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii)
make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for
relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it
a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth in this Section
7.6, or (vi) fail to contest in good faith any appointment or proceeding described in Section 7.7,
or (vii) the Borrower or any of its Subsidiaries shall not pay, or admit in writing its inability
to pay, its debts generally as they become due.
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7.7. Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for
the Borrower or any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries
and such appointment continues undischarged or such proceeding continues undismissed or unstayed
for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any portion of the Property of the Borrower and
its Subsidiaries which, when taken together with all other Property of the Borrower and its
Subsidiaries (other than pursuant to the expiration and non-renewal of the Glacier Park, Inc.
Concession Agreement) so condemned, seized, appropriated, or taken custody or control of, during
the twelve-month period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days to pay, bond
or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of
$15,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate,
provided, however, that any such judgment or order shall not give rise to a Default under this
Section 7.9(i) if and for so long as the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer covering the full payment
thereof; or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in the
aggregate $10,000,000 or any Reportable Event shall occur in connection with any Plan.
7.11. Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation
with a termination or settlement value in excess of $15,000,000 when due or the breach by the
Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management
Transaction or any transaction of the type described in the definition of “Rate Management
Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto, and, after
giving effect to any applicable notice requirement or grace period, there occurs a liquidation of,
acceleration of obligations with a termination or settlement value in excess of $15,000,000 under
or an early termination of such Rate Management Obligation.
7.12. Any Change in Control shall occur.
7.13. The Borrower or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred liability to such
Multiemployer Plan as a result of the withdrawal from such Multiemployer Plan by the Borrower or a
member of the Controlled Group in an amount which, when aggregated with all other amounts required
to be paid to Multiemployer Plans by the Borrower or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such notification), exceeds $15,000,000 or
requires payments exceeding $3,000,000 per annum.
7.14. The occurrence of any “default”, as defined in any Loan Document (other than
this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than
this Agreement), which default or breach continues beyond any period of grace therein provided.
7.15. Any Guaranty shall fail to remain in full force or effect or any action shall
be taken to discontinue or to assert the invalidity or unenforceability of any Guaranty, or any
guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a
party, or any guarantor shall deny that it has any further liability under any Guaranty to which it
is a party, or shall give notice to such effect.
7.16. Any Collateral Document shall for any reason fail to create a valid and
perfected first priority security interest in any collateral purported to be covered thereby,
except as permitted by the terms of this Agreement or any Collateral Document, or any Collateral
Document shall fail to remain in full force or effect or any action shall be taken by or on behalf
of the Borrower of any Affiliate thereof to discontinue or to assert the invalidity or
unenforceability of any Collateral Document.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account. (i) If any Default
described in Section 7.6 or 7.7 occurs with respect to the Borrower, the obligations of the Lenders
to make Loans hereunder and the obligation and power of the LC Issuer to issue Facility LCs shall
automatically terminate and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent, the LC Issuer or any Lender and the
Borrower will be and become thereby unconditionally obligated, without any further notice, act or
demand, to pay to the Administrative Agent an amount in immediately available funds, which funds
shall be held in the Facility LC Collateral Account, equal to the difference of (x) the amount of
LC Obligations at such time, less (y) the amount on deposit in the Facility LC Collateral Account
at such time which is free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the “Collateral Shortfall Amount”). If any other
Default occurs, the Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to make Loans hereunder and
the obligation and power of the LC Issuer to issue Facility LCs, or declare the Obligations to be
due and payable, or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (b) upon notice to the Borrower and in addition to the continuing right to
demand payment of all amounts payable under this Agreement, make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
| (ii) | If at any time while any Default is continuing, the Administrative Agent determines that the Collateral Shortfall Amount at such time is greater than zero, the Administrative Agent may make demand on the Borrower to pay, and the Borrower will, forthwith upon such demand and without any further notice or act, pay to the Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in the Facility LC Collateral Account. | ||
| (iii) | The Administrative Agent may at any time or from time to time after funds are deposited in the Facility LC Collateral Account, apply such funds to the payment of the Obligations and any other amounts as shall from time to time have become due and payable by the Borrower to the Lenders or the LC Issuer under the Loan Documents. | ||
| (iv) | At any time while any Default is continuing, neither the Borrower nor any Person claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Facility LC Collateral Account. After all of the Obligations have been indefeasibly paid in full and the Aggregate Commitment has been terminated, any funds remaining in the Facility LC Collateral Account shall be returned by the Administrative Agent to the Borrower or paid to whomever may be legally entitled thereto at such time. |
8.2. Amendments. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders)
and the Borrower may enter into agreements supplemental hereto for the purpose of adding or
modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders
or the Borrower hereunder or waiving any Default or Unmatured Default hereunder; provided, however,
that no such supplemental agreement shall, without the consent of all of the Lenders:
| (i) | Extend the final maturity of any Loan, or extend the expiry date of any Facility LC to a date after the Facility Termination Date or forgive all or any portion of the principal amount thereof or any Reimbursement Obligation related thereto, or reduce the rate or extend the time of payment of interest or fees thereon or Reimbursement Obligations related thereto. | ||
| (ii) | Reduce the percentage specified in the definition of Required Lenders. | ||
| (iii) | Extend the Facility Termination Date, or reduce the amount or extend the payment date for the mandatory payments required under Section 2.2, or increase the amount of the Aggregate Commitment or of the Commitment of any Lender hereunder or the commitment to issue Facility LCs. | ||
| (iv) | Permit the Borrower to assign its rights under this Agreement. | ||
| (v) | Amend this Section 8.2 or Section 11.2. |
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| (vi) | Release any guarantor from the Guaranty or, except as provided in the Collateral Documents, release all or a material portion of the Collateral. |
No amendment of any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written consent of the LC
Issuer. No amendment of any provision of this Agreement relating to the Swing Line Lender or any
Swing Line Loans shall be effective without the written consent of the Swing Line Lender. The
Administrative Agent may waive payment of the fee required under Section 12.1(b) without obtaining
the consent of any other party to this Agreement. Notwithstanding the foregoing, upon the
execution and delivery of all documentation required by Section 2.6.3 to be delivered in connection
with an increase to the Aggregate Commitment, the Administrative Agent, the Borrower and the new or
existing Lenders whose Commitments have been affected may and shall if necessary or desirable enter
into an amendment hereof (which shall be binding on all parties hereto) solely for the purpose of
reflecting any new Lenders and their new Commitments and any increase in the Commitment of any
existing Lender.
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC
Issuer or the Administrative Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a
Credit Extension notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of
the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section 8.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or by law afforded
shall be cumulative and all shall be available to the Administrative Agent and the Lenders until
the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Loans and Facility LCs herein
contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, neither the LC Issuer nor any Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any applicable statute or
regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Administrative Agent, the
LC Issuer and the Lenders relating to the subject matter thereof other than those contained in the
fee letter described in Section 10.13 which shall survive and remain in full force and effect
during the term of this Agreement.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner
or Administrative Agent of any other (except to the extent to which the Administrative Agent is
authorized to act as such). The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it were a party to this
Agreement.
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9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the
Administrative Agent and the Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including attorneys’ fees and time charges of attorneys for the Administrative Agent,
which attorneys may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent or the Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, distribution (including, without limitation, via the internet), review,
amendment (proposed or actual), modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent, the Arranger, the LC Issuer and the
Lenders for any reasonable costs, internal charges and out-of-pocket expenses (including attorneys’
fees and time charges of attorneys for the Administrative Agent, the Arranger and the Lenders,
which attorneys may be employees of the Administrative Agent, the Arranger, the LC Issuer or the
Lenders) paid or incurred by the Administrative Agent, the Arranger, the LC Issuer or any Lender in
connection with the collection under and enforcement of the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Administrative Agent, the Arranger,
each Lender, their respective affiliates, and each of their directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Arranger, any Lender or any affiliate is a party thereto) which any of
them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or proposed application of
the proceeds of any Credit Extension hereunder except to the extent that they are determined in a
final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification. The obligations of the
Borrower under this Section 9.6 shall survive the termination of this Agreement. To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 9.6 may
be unenforceable in whole or in part because they are violative of any law or public policy, the
Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all indemnified liabilities incurred by the
indemnitees or any of them.
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4, except that any calculation or determination which is to be made on a
consolidated basis shall be made for the Borrower and all of its Subsidiaries, including those
Subsidiaries, if any, which are unconsolidated on the Borrower’s audited financial statements. 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 the Borrower, the Administrative Agent or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Loan Parties 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, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change therein and
the Borrower shall provide to the Administrative Agent and the Lenders reconciliation statements
showing the difference in such calculation, together with the delivery of monthly, quarterly and
annual financial statements required hereunder.
9.9. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions
in that jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the
one hand and the Lenders, the LC Issuer and the Administrative Agent on the other hand shall be
solely that of borrower and lender. Neither the Administrative Agent, the Arranger, the LC Issuer
nor any Lender shall have any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent, the Arranger nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the Borrower’s business
or operations. The Borrower agrees that neither the Administrative Agent, the Arranger, the LC
Issuer nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or
otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by the Loan Documents,
or any act, omission or event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses resulted from the
gross negligence or willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to ▇▇▇ for, any special,
indirect, consequential or punitive damages
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suffered by the Borrower in connection with, arising
out of, or in any way related to the Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. The Administrative Agent and each Lender agrees to
hold any Information which it may receive from the Borrower in connection with this Agreement in
confidence, except for disclosure (i) to its Affiliates and to the Administrative Agent and any
other Lender and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which it is a party, (vi) to its direct or
indirect contractual counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, (vii) permitted by Section 12.2, and (viii) to rating
agencies if requested or required by such agencies in connection with a rating relating to the
Advances hereunder. Without limiting Section 9.4, the Borrower agrees that the terms of this
Section 9.11 shall set forth the entire agreement between the Borrower and each Lender (including
the Administrative Agent) with respect to any Information previously or hereafter received by such
Lender in connection with this Agreement, and this Section 9.11 shall supersede any and all prior
confidentiality agreements entered into by such Lender with respect to such Information.
“Information” means all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the Administrative Agent, the LC
Issuer or any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential.
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED ABOVE) FURNISHED TO IT PURSUANT TO THIS
AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS AFFILIATES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING
THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
9.12. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U) for the repayment of the Loans provided
for herein.
9.13. Disclosure. The Borrower and each Lender hereby acknowledge and agree
that JPMCB and/or its Affiliates from time to time may hold investments in, make other loans to or
have other relationships with the Borrower and its Affiliates.
9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies the Borrower that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.
9.15. Exiting Lender Payment. Each Lender consents to the payment by the
Borrower of all outstanding Obligations (as defined in the Existing Credit Agreement) owing to the
Exiting Lender on the Effective Date.
9.16. Amendment and Restatement.
| (i) | On the Effective Date, the Existing Credit Agreement shall be amended, restated and superseded in its entirety. The parties hereto acknowledge and agree that (a) this Agreement, any Notes delivered pursuant to Section 2.14 and the other Loan Documents executed and delivered in connection herewith do not constitute |
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| a novation, payment and reborrowing, or termination of the “Obligations” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement as in effect prior to the Effective Date and (b) such “Obligations” are in all respects continuing with only the terms thereof being modified as provided in this Agreement. |
| (ii) | Notwithstanding the modifications effected by this Agreement of the representations, warranties and covenants of the Borrower contained in the Existing Credit Agreement, the Borrower acknowledges and agrees that any causes of action or other rights created in favor of any Lender and its successors arising out of the representations and warranties of the Borrower contained in or delivered (including representations and warranties delivered in connection with the making of the loans or other extensions of credit thereunder) in connection with the Existing Credit Agreement shall survive the execution and delivery of this Agreement; provided, however, that it is understood and agreed that the Borrower’s monetary obligations under the Existing Credit Agreement in respect of the loans and letters of credit thereunder are evidenced by this Agreement as provided in Article II hereof. | ||
| (iii) | All indemnification obligations of the Borrower pursuant to the Existing Credit Agreement (including any arising from a breach of the representations thereunder) shall survive the amendment and restatement of the Existing Credit Agreement pursuant to this Agreement. | ||
| (iv) | As of the Effective Date each Lender hereby (a) consents to the amendments to the Security Agreement and the Subsidiary Security Agreement in substantially the forms made available to the Lenders by the Administrative Agent prior to the Effective Date and (b) authorizes and directs the Administrative Agent to enter into such amendments. |
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship. JPMCB is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the “Administrative
Agent”) hereunder and under each other Loan Document, and each of the Lenders irrevocably
authorizes the Administrative Agent to act as the contractual representative of such Lender with
the rights and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the defined term “Administrative Agent,”
it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the Lenders with only
those duties as are expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders’ contractual representative, the Administrative Agent (i) does not hereby
assume any fiduciary duties to any of the Lenders, (ii) is a “representative” of the Lenders within
the meaning of the term “secured party” as defined in the New York Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby
agrees to assert no claim against the Administrative Agent on any agency theory or any other theory
of liability for breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the Administrative Agent by the
terms of each thereof, together with such powers as are reasonably incidental thereto. The
Administrative Agent shall have no implied duties to the Lenders, or any obligation to the Lenders
to take any action thereunder except any action specifically provided by the Loan Documents to be
taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith except to the extent such action or inaction is
determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen
from the gross negligence or willful misconduct of such Person.
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10.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to furnish information
directly to each Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Administrative Agent; (d) the existence or
possible existence of any Default or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing
furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of
any Lien in any collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower’s or any such guarantor’s respective
Subsidiaries. Except as expressly set forth herein, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.
10.5. Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the default or misconduct of
any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the Administrative Agent’s
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex, electronic mail message, statement, paper or document believed by it in good
faith to be genuine and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by the Administrative Agent,
which counsel may be employees of the Administrative Agent. For purposes of determining compliance
with the conditions specified in Sections 4.1 and 4.2, 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 applicable date specifying its objection thereto.
10.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (i) for any amounts not reimbursed by the Borrower for which
the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or between two or more
of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such amounts incurred by
or asserted against the Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of
any of the terms of the Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Administrative Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof.
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The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower referring to this
Agreement describing such Default or Unmatured Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger or any other Lender
and based on the financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arranger or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Agreement and the other
Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring Administrative Agent
gives notice of its intention to resign. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders
within thirty days after the resigning Administrative Agent’s giving notice of its intention to
resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. If the Administrative Agent has resigned and no
successor Administrative Agent has been appointed, the Lenders may perform all the duties of the
Administrative Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Any such successor Administrative
Agent shall be a commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or removed
Administrative Agent. Upon the effectiveness of the resignation of the Administrative Agent, the
resigning Administrative Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation of an Administrative Agent,
the provisions of this Article X shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent assigns its duties and
obligations to an Affiliate pursuant to this Section 10.12, then the term “Prime Rate” as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13. Administrative Agent and Arranger Fees. The Borrower agrees to pay
to the Administrative Agent and the Arranger, for their respective accounts, the fees agreed to by
the Borrower, the Administrative Agent and the Arranger pursuant to that certain fee letter
agreement dated April 24, 2006, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that
the Administrative Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Articles IX and X.
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10.15. Execution of Collateral Documents. The Lenders hereby empower and
authorize the Administrative Agent to execute and deliver to the Borrower on their behalf the
Collateral Documents and all related financing statements and any financing statements, agreements,
documents or instruments as shall be necessary or appropriate to effect the purposes of the
Collateral Documents.
10.16. Collateral Releases. The Lenders hereby empower and authorize the
Administrative Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any releases of Collateral
which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise
have been approved by the Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing.
10.17. Co-Documentation Agents, Syndication, Agent, etc. Neither any of the
Lenders identified in this Agreement as a “Co-Documentation Agent” nor the Syndication Agent shall
have any right, power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders
shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes
the same acknowledgments with respect to such Lenders as it makes with respect to the
Administrative Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. If a Default shall have occurred and be continuing, each
Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any times held and other obligations at any time owing by
such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all
the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender
or Affiliate, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.
11.2. Ratable Payments. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans or participations in disbursements under Facility LCs or Swing Line Loans
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and participations in disbursements under Facility LCs and Swing Line Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans and
participations in disbursements under Facility LCs and Swing Line Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and participations in disbursements under Facility LCs and Swing Line Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in disbursements under Facility LCs
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the LC Issuer that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without
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such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the LC Issuer that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the LC Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
| (b)(i) | Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of: |
| (A) | the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Default has occurred and is continuing, any other assignee; |
| (B) | the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment to a Lender; and |
| (C) | the LC Issuer. |
| (ii) | Assignments shall be subject to the following additional conditions: |
| (A) | except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if a Default has occurred and is continuing; | ||
| (B) | each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; | ||
| (C) | the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; and | ||
| (D) | the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. |
For the purposes of this Section 12.1(b), the term “Approved Fund” has the following meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course of its business and that is
administered or managed by (1) a Lender, (2) an Affiliate of a Lender or (3) an entity or an
Affiliate of an entity that administers or manages a Lender.
| (iii) | Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.1, 3.2, 3.4, 3.5 and 9.6). Any assignment or transfer by a Lender of |
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| rights or obligations under this Agreement that does not comply with this Section 12.1 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. |
| (iv) | The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and disbursements under Facility LCs owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the LC Issuer and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the LC Issuer and any Lender, at any reasonable time and from time to time upon reasonable prior notice. |
| (v) | Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.5.4, 2.19, 2.20.5, 10.8 or 11.2, the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. |
| (c)(i) | Any Lender may, without the consent of the Borrower, the Administrative Agent, the LC Issuer or the Swing Line Lender, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the LC Issuer and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 8.2(i) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.1 as though it were a Lender, provided such Participant agrees to be subject to Section 11.2 as though it were a Lender. |
| (ii) | A Participant shall not be entitled to receive any greater payment under Section 3.1, 3.2, 3.4 or 3.5 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 3.5 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.5(iv) as though it were a Lender. |
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
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12.2. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”) and any prospective Transferee any and all
information in such Lender’s possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective Transferee agrees to be bound by
Section 9.11 of this Agreement.
12.3. Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is not incorporated under the laws of the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices; Effectiveness; Electronic Communication
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows:
(i) if to the Borrower, at its address or telecopier number set forth on the
signature page hereof;
(ii) if to the Administrative Agent, at its address or telecopier number set
forth on the signature page hereof;
(iii) if to the LC Issuer, at its address or telecopier number set forth on
the signature page hereof;
(iv) if to a Lender, to it at its address (or telecopier number) set forth
in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the Lenders may be
delivered or furnished by electronic communication (including e-mail and internet or intranet
websites) pursuant to procedures approved by the Administrative Agent or as otherwise determined by
the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its respective discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it or as it otherwise
determines, provided that such determination or approval may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on the next Business
Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
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(c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1. Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Except as provided in Article IV, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement.
14.2. Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any assignment and assumption agreement shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or
any other state laws based on the Uniform Electronic Transactions Act.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK
STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. ANY JUDICIAL
PROCEEDING BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO OR ANY AFFILIATE THEREOF INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY
LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK; PROVIDED, HOWEVER THAT
NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY PARTY HERETO TO BRING PROCEEDINGS AGAINST ANY OTHER
PARTY HERETO IN THE COURTS OF ANY OTHER JURISDICTION TO THE EXTENT NECESSARY TO OBTAIN JURISDICTION
OVER SUCH OTHER PARTY OR TO ENFORCE ANY JUDGMENT ENTERED RELATING HERETO.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed
this Agreement as of the date first above written.
| VIAD CORP | ||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||||
| Title: | Chief Financial Officer | |||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | Treasurer | |||||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇ | ||||||||||
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | ||||||||||
| Attention: Treasurers’ Department | ||||||||||
| Telephone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||||||
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Lender and as Administrative Agent |
||||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| Its: | Underwriter | |||||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Its: | Vice President | |||||||||
| KEYBANK NATIONAL ASSOCIATION | ||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Its: | Vice President | |||||||||
| BANK OF AMERICA, N.A. | ||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| Its: | Principal | |||||||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. Paris | |||||||||
| Its: | Senior Vice President | |||||||||
[Signature Page to Viad Amended and Restated Credit Agreement]
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| ▇▇▇▇▇ FARGO BANK, N.A. | ||||||||||
| By: | /s/ Ling Li | |||||||||
| Its: | Vice President | |||||||||
| COMERICA WEST INCORPORATED | ||||||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Its: | Corporate Banking Representative | |||||||||
| BANK OF THE WEST | ||||||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Its: | Vice President | |||||||||
[Signature Page to Viad Amended and Restated Credit Agreement]
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PRICING SCHEDULE
| Applicable | Level I | Level II | Level III | Level IV | Level V | Level VI | ||||||
| Margin | Status | Status | Status | Status | Status | Status | ||||||
Eurodollar Rate |
0.75% | 0.875% | 1.125% | 1.25% | 1.50% | 1.75% | ||||||
Floating Rate |
0% | 0% | 0% | 0% | 0.25% | 0.50% |
| Applicable | ▇▇▇▇▇ ▇ | ▇▇▇▇▇ ▇▇ | ▇▇▇▇▇ ▇▇▇ | ▇▇▇▇▇ ▇▇ | ▇▇▇▇▇ ▇ | ▇▇▇▇▇ ▇▇ | ||||||
| Fee Rate | Status | Status | Status | Status | Status | Status | ||||||
Letter of Credit Fee |
0.75% | 0.875% | 1.125% | 1.25% | 1.50% | 1.75% | ||||||
Commitment Fee |
0.15% | 0.175% | 0.20% | 0.225% | 0.25% | 0.30% |
For the purposes of this Schedule, the following terms have the following meanings, subject to
the final paragraph of this Schedule:
“Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 6.1(i) or (ii).
“Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio is less than or equal to
0.50 to 1.00.
“Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Leverage Ratio is less than or equal to 1.00 to 1.00.
“Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Leverage Ratio is less than or equal to 1.50 to 1.00.
“Level IV Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II Status or Level III Status and (ii) the Leverage Ratio is less than or equal to
2.00 to 1.00.
“Level V Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status, Level II Status, Level III Status or Level IV Status and (ii) the Leverage Ratio is less
than or equal to 2.50 to 1.00.
“Level VI Status” exists at any date if the Borrower has not qualified for Level I Status,
Level II Status, Level III Status, Level IV Status or Level V Status.
“Status” means either Level I Status, Level II Status, Level III Status, Level IV Status,
Level V Status or Level VI Status.
The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the
foregoing table based on the Borrower’s Status as reflected in the then most recent Financials.
Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be effective five
Business Days after the Administrative Agent has received the applicable Financials. If the
Borrower fails to deliver the Financials to the Administrative Agent at the time required pursuant
to Section 6.1, then the Applicable Margin and Applicable Fee Rate shall be the highest Applicable
Margin and Applicable Fee Rate set forth in the foregoing table until five days after such
Financials are so delivered. Until adjusted as set forth above, Level I Status shall exist.
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COMMITMENT SCHEDULE
| Lender | Commitment | |||
JPMorgan Chase Bank, National Association* |
$ | 30,000,000 | ||
Wachovia Bank, National Association* |
$ | 25,000,000 | ||
Bank of America, N.A.* |
$ | 20,000,000 | ||
KeyBank National Association* |
$ | 20,000,000 | ||
U.S. Bank National Association* |
$ | 15,000,000 | ||
▇▇▇▇▇ Fargo Bank, N.A.* |
$ | 15,000,000 | ||
Comerica West Incorporated |
$ | 15,000,000 | ||
Bank of the West |
$ | 10,000,000 | ||
Total |
$ | 150,000,000 | ||
SCHEDULE I
Exiting Lenders
1. BNP Paribas
2. Calyon New York Branch
| * | Existing Lender |
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EXHIBIT A
NOTE
[Date]
Viad Corp, a Delaware Corporation (the “Borrower”), promises to pay to the order of
(the “Lender”) the aggregate unpaid principal amount of all Loans made
by the Lender to the Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the Payment Office (as defined below) of JPMorgan Chase Bank,
National Association, as Administrative Agent, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in full on the Facility Termination Date.
“Payment Office” means the office of the Administrative Agent specified pursuant to Section 2.13
of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Loan and the
date and amount of each principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the
Amended and Restated Credit Agreement dated as of June 15, 2006 (which, as it may be amended or
modified and in effect from time to time, is herein called the “Agreement”), among the Borrower,
the lenders party thereto, including the Lender, and JPMorgan Chase Bank, National Association, as
Administrative Agent, to which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is secured pursuant to the Collateral
Documents and guaranteed pursuant to the Guaranty, all as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and provisions thereof.
Capitalized terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
This Note shall be governed by and construed in accordance with the internal laws of the State
of New York.
| VIAD CORP | ||||
| By: | ||||
| Print Name: | ||||
| Title: | ||||
| By: | ||||
| Print Name: | ||||
| Title: | ||||
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EXHIBIT B
COMPLIANCE CERTIFICATE
| To: | The Lenders parties to the Credit Agreement Described Below |
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Credit
Agreement dated as of June 15, 2006 (as amended, modified, renewed or extended from time to time,
the “Agreement”) among Viad Corp, a Delaware corporation (the “Borrower”), the lenders party
thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent for the Lenders.
Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no actual knowledge
of, the existence of any condition or event which constitutes a Default or Unmatured Default during
or at the end of the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing the
Borrower’s compliance with certain covenants of the Agreement, all of which data and computations
are true, complete and correct.
5. Schedule II hereto sets forth the determination of the interest rates to be paid for
Advances and the commitment fee rates commencing on the fifth day following the delivery hereof.
6. Except as set forth on Schedule III attached hereto, all reports and deliveries which are
required at this time under the Credit Agreement, the Security Agreement and the other Loan
Documents have been delivered.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I and
Schedule II hereto and the financial statements delivered with this Certificate in support hereof,
are made and delivered this ___ day of , ___.
| VIAD CORP | ||||
| By: | ||||
| Its: | ||||
| Name: | ||||
| By: | ||||
| Its: | ||||
| Name: | ||||
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of [ , ___] with
Provisions of Sections 6.14(vi), 6.23.1, 6.23.2 and 6.23.3 of the Agreement
Provisions of Sections 6.14(vi), 6.23.1, 6.23.2 and 6.23.3 of the Agreement
| Acquisitions out of the line of business | Twelve Month Period | |
| Section 6.14(vi) | Ended [ ] | |
1. Aggregate consideration (including cash, other
property, stock and debt assumption at fair market value)
for twelve month period |
$ | |
Maximum aggregate consideration in any twelve month period |
$50,000,000 | |
| Fixed Charge Coverage Ratio | Four Fiscal Quarters | |||||
| Section 6.23.1 | Ended [ ] | |||||
1. |
(a) | Consolidated EBITDA | $ | |||
| (b) | Consolidated Rentals | $ | ||||
| (c) | Consolidated Capital Expenditures | $ | ||||
2. |
(d) | Cash Consolidated Interest Expense | $ | |||
| (e) | Consolidated Rentals | $ | ||||
| (f) | Scheduled principal payments for Indebtedness for borrowed money (current maturities of long term debt) | $ | ||||
| (g) | Expense for income taxes paid or accrued | $ | ||||
| Fixed Charge Coverage Ratio: (a + b - c)/(d + e + f + g) | ___:1.00 | |||||
| Minimum Required: | 1.25:1.00 | |||||
| Leverage Ratio | Four Fiscal Quarters | |||||
| Section 6.23.2 | Ended [ ] | |||||
1. |
(a) | Consolidated Indebtedness | $ | |||
2. |
(b) | Consolidated EBITDA | $ | |||
| Leverage Ratio: (a/b) | ___:___ | |||||
| Maximum Allowed: | 2.75:1.00 | |||||
| Minimum Consolidated Net Worth | At all times | |
| Section 6.23.3 | ||
Consolidated Net Worth |
$ | |
Minimum: |
||
(a) $344,590,000 |
$ | |
(b) 50% of Consolidated Net Income earned in each fiscal
quarter beginning with the quarter ending June 30, 2006
(without deduction for losses): |
$ | |
(c) 100% of the net cash proceeds from all issuances of (or
the fair market value at the time of contribution of all
assets contributed in exchange for) Capital Stock of the
Borrower after the Effective Date |
$ | |
(d) the amount of aggregate consideration expended by the
Borrower after the Effective Date for repurchases of its
Capital Stock pursuant to Section 6.10(iii) |
$ | |
Minimum
Consolidated Tangible Net Worth: (a + b + c) - d |
$ | |
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SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower’s Applicable Margin Calculation
Level [I][II][III][IV][V][VI]
| Applicable Margin or Fee Rate | ||||
Eurodollar Rate |
% | |||
Floating Rate |
% | |||
Letter of Credit Fee |
% | |||
Commitment Fee |
% |
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
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EXHIBIT C
SUBORDINATION TERMS
SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT
SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT (the “Agreement”) dated as of _____ ___,
200___, between:
(i)
[NAME OF CREDITOR], a ___ organized under
the law of ___ (the
“Creditor”);
(ii) Viad Corp, a corporation organized under the laws of Delaware (the
“Debtor”); and
(iii) JPMorgan Chase Bank, National Association, as administrative agent (with its
successors in such capacity, the “Administrative Agent”).
The Debtor, the Administrative Agent and the various financial institutions signatory thereto
(the “Lenders”) are parties to that certain Amended and Restated Credit Agreement dated as
of June 15, 2006 (as it may be amended, restated or modified and in effect from time to time, the
“Credit Agreement”).
To induce the Lenders to extend or continue to extend credit as described in the Credit
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Creditor has agreed to subordinate the Subordinated Debt (as hereinafter
defined) to the Senior Debt (as so defined) all in the manner and to the extent hereinafter
provided. Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used herein as
defined therein. In addition, as used herein:
“Holder” shall mean a Person which holds, or acts as representative of holders of,
Senior Debt.
“Senior Debt” shall mean, collectively, the following indebtedness and obligations:
(a) all indebtedness or other obligations of the Debtor under the Credit Agreement and
the other Loan Documents, including all interest, expenses, indemnities and penalties and
all other amounts from time to time owing under the Credit Agreement and the other Loan
Documents; and
(b) all Rate Management Obligations owing to any Lender or Affiliate thereof.
The term “Senior Debt” shall include any interest, and any expenses of the type described in
Section 9.6 of the Credit Agreement (or comparable provisions of any other Loan Document), accruing
or arising after the date of any filing by the Debtor of any petition in bankruptcy or the
commencing of any bankruptcy, insolvency or similar proceedings with respect to the Debtor, whether
or not such interest or expenses are allowable as a claim in any such proceeding.
“Subordinated Debt” shall mean all Indebtedness of the Debtor to the Creditor incurred
pursuant to Section 6.11(viii) of the Credit Agreement, whether now existing or hereafter arising,
including without limitation [specify anticipated Indebtedness].
Section 2. Subordination.
2.01 Subordination of Subordinated Debt. The Debtor, for itself and its respective
successors and assigns, covenants and agrees, and the Creditor, on its own behalf and on behalf of
each subsequent holder of Subordinated Debt, likewise covenants and agrees, that, to the extent and
in the manner set forth in this Agreement, the Subordinated Debt and the payment from whatever
source of the principal of, and interest and premium (if any) on, the Subordinated Debt, are hereby
expressly made subordinate and subject in right of payment to the prior payment in full in cash of
all Senior Debt and in that connection hereby agree that, except and to the extent permitted under
Section 2.03 hereof, (a) no payment on account of the Subordinated Debt or any judgment with
respect thereto shall be made by or on behalf of the Debtor and (b) the Creditor shall not (i) ask,
demand, ▇▇▇ for, take or receive from the Debtor, by set-off or in any other manner payment on
account of the
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Subordinated Debt, or (ii) seek any other remedy allowed at law or in equity against the
Debtor for breach of the Debtor’s obligations under the instruments representing such Subordinated
Debt.
In the event that, notwithstanding the foregoing provisions of this Section 2.01, the Creditor
shall have received any payment not permitted by the provisions of Section 2.03 hereof, including,
without limitation, any such payment arising out of the exercise by the Creditor of a right of
set-off or counterclaim and any such payment received by reason of other indebtedness of the Debtor
being subordinated to the Subordinated Debt, then, and in any such event, such payment shall be
held in trust for the benefit of, and shall be immediately paid over or delivered to, the
Administrative Agent, to be paid to the Holders, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and interest and premium (if any) on, the Senior
Debt held or represented by each Holder, for application to such Senior Debt remaining unpaid,
whether or not then due and payable.
2.02 Payment of Proceeds Upon Dissolution. In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Debtor or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the Debtor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshalling of assets and liabilities of the
Debtor, then and in any such event:
(1) the Holders shall be entitled to receive payment in full in cash of all amounts due
or to become due on or in respect of all Senior Debt, or provision shall be made for such
payment, before the Creditor shall be entitled to receive any payment on account of
principal of, or interest or premium (if any) on, the Subordinated Debt;
(2) any payment or distribution of assets of the Debtor of any kind or character,
whether in cash, property or securities, by set-off or otherwise, to which the Creditor
would be entitled but for the provisions of this Agreement, including any such payment or
distribution that may be payable or deliverable by reason of the payment of any other
indebtedness of the Debtor being subordinated to the payment of the Subordinated Debt, shall
be paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the Administrative Agent, to be paid to the Holders, ratably
according to the aggregate amounts then due and payable on account of the principal of, and
interest and premium (if any) on, the Senior Debt held by each Holder, to the extent
necessary to make payment in full in cash of all Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution to the Holders;
(3) in the event that, notwithstanding the foregoing provisions of this Section 2.02,
the Creditor shall have received, before all Senior Debt is paid in full in cash or payment
thereof provided for, any such payment or distribution of assets of the Debtor of any kind
or character, whether in cash, property or securities, including any such payment or
distribution arising out of the exercise by the Creditor of a right of set-off or
counterclaim and any such payment or distribution received by reason of any other
indebtedness of the Debtor being subordinated to the Subordinated Debt, then, and in such
event, such payment or distribution shall be held in trust for the benefit of, and shall be
immediately paid over or delivered to, the Administrative Agent, to be paid to the Holders,
ratably according to the aggregate amounts remaining unpaid on account of the principal of,
and interest and premium (if any) on, the Senior Debt held or represented by each Holder, to
the extent necessary to make payment in full in cash of all Senior Debt remaining unpaid,
after giving effect to any concurrent payment or distribution to the Holders; and
(4) if the Creditor shall have failed to file claims or proofs of claim with respect to
the Subordinated Debt earlier than 30 days prior to the deadline for any such filing, the
Administrative Agent is hereby irrevocably authorized to vote and file proofs of claim and
otherwise to act with respect to the Subordinated Debt as the Administrative Agent may deem
appropriate in its reasonable discretion.
2.03 Certain Payments Permitted. Notwithstanding the foregoing, except during any
period when any Default shall have occurred and be continuing, the Creditor shall be entitled to
receive and retain any payment in respect of Debt made by on or behalf of the Debtor to the
Creditor.
2.04 Subrogation. Subject to the payment in full in cash of all Senior Debt, the
Creditor shall be subrogated (equally and ratably with the holders of all indebtedness of the
Debtor that by its express terms is subordinated to Senior Debt of the Debtor to the same extent as
the Subordinated Debt is subordinated and that is entitled to like rights of subrogation) to the
rights of the Holders to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of, and interest and premium (if any) on, the
Subordinated Debt shall be paid in full in cash. For purposes of such subrogation, no payments or
distributions to the Holders of any cash, property or securities to which the Creditor would be
entitled except for the provisions of this Section 2, and no payments over pursuant to the
provisions of this Section 2 to the
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Holders by the Creditor, shall, as between the Creditor, its creditors other than the Holders,
and the Creditor, be deemed to be a payment or distribution by the Creditor to or on account of the
Senior Debt.
2.05 Provisions Solely to Define Relative Rights. The provisions of this Section 2
are and are intended solely for the purpose of defining the relative rights of the Creditor on the
one hand and the Holders on the other hand. Nothing contained in this Section 2 or elsewhere in
this Agreement is intended to or shall:
(a) impair, as among the Debtor, its creditors other than the Holders and the Creditor,
the obligation of the Debtor to pay to the Creditor the principal of and interest on the
Subordinated Debt as and when the same shall become due and payable in accordance with its
terms; or
(b) affect the relative rights against the Debtor of the Creditor and creditors of the
Debtor other than the Holders.
2.06 No Waiver of Subordination Provisions. No right of any Holder to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Debtor or by any act or failure to act, in good faith, by any
Holder, or by any non-compliance by the Debtor with the terms, provisions and covenants of this
Agreement, regardless of any knowledge thereof any Holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the Holders may, at any
time and from time to time, without the consent of or notice to the Creditor, without incurring
responsibility to the Creditor and without impairing or releasing the subordination provided in
this Section 2 or the obligations hereunder of the Creditor to the holders of Senior Debt, do any
one or more of the following: (a) change the time, manner or place of payment of Senior Debt, or
otherwise modify or supplement in any respect any of the provisions of the Loan Documents or any
other instrument evidencing or relating to any of the Senior Debt; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt; (c) release
any Person liable in any manner for the collection of Senior Debt; and (d) exercise or refrain from
exercising any rights against the Debtor and any other Person.
Section 3. Miscellaneous.
3.01 No Waiver. No failure on the part of any Holder to exercise, and no course of
dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by any Holder of any right,
power or remedy hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not exclusive of any
remedies provided by law.
3.02 Notices. All notices, requests, consents and demands hereunder shall be in
writing and telecopied or delivered to the intended recipient at the “Address for Notices”
specified beneath its name on the signature pages hereof or, as to either party, at such other
address as shall be designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
3.03 Amendments, Etc. The terms of this Agreement may be waived, altered or amended
only by an instrument in writing duly executed by the Creditor and the Administrative Agent with
the consent of the Required Lenders. Any such amendment or waiver shall be binding upon each
Lender (and each holder of Senior Debt) and the Creditor.
3.04 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Creditor and each Holder.
3.05 Captions. The captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.
3.06 Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such counterpart.
3.07 Governing Law; Submission to Jurisdiction. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York. The Creditor hereby
submits to the nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of the Supreme Court of the State of New York sitting in New
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York County (including its Appellate Division), and of any other appellate court in the State
of New York, for the purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Creditor hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
3.08 Waiver of Jury Trial. EACH OF THE CREDITOR AND THE ADMINISTRATIVE AGENT (FOR
ITSELF AND ON BEHALF OF THE HOLDERS) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Subordinated Indebtedness Subordination
Agreement to be duly executed and delivered as of the day and year first above written.
[NAME OF CREDITOR]
| By: | ||||
| Name: | ||||
| Title: | ||||
Address for Notices:
Attention: [ ]
Telephone No.: [ ]
Telecopier No.: [ ]
Telecopier No.: [ ]
VIAD CORP
| By: | ||||
| Name: | ||||
| Title: | ||||
Address for Notices:
Attention: [ ]
Attention: [ ]
Telephone No.: [ ]
Telecopier No.: [ ]
Telecopier No.: [ ]
JPMORGAN CHASE BANK, NA., as Administrative Agent
| By: | ||||
| Name: | ||||
| Title: | ||||
Address for Notices:
Attention: [ ]
Telephone No.: [ ]
Telecopier No.: [ ]
Telecopier No.: [ ]
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EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1.
|
Assignor: | |||||
2.
|
Assignee: | |||||
| [and is an Affiliate/Approved Fund of [identify Lender]] | ||||||
3.
|
Borrower(s): | Viad Corp | ||||
| 4. | Administrative Agent: JPMorgan Chase Bank, National Association, as the administrative agent under the Credit Agreement |
|||||
| 5. | Credit Agreement: The $150,000,000 Amended and Restated Credit Agreement dated as of June 15, 2006 among Viad Corp, the Lenders parties thereto, JPMorgan Chase Bank, National Association, as Administrative Agent, and the other agents parties thereto | |||||
6.
|
Assigned Interest: | |||||
| Aggregate Amount of | Amount of | Percentage of | ||||||||||
| Commitment/Loans | Commitment/Loans | Commitment/Loans | ||||||||||
| Facility Assigned | for all Lenders | Assigned | Assigned | |||||||||
| $ | $ | % | ||||||||||
| $ | $ | % | ||||||||||
| $ | $ | % | ||||||||||
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Effective
Date: ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower, its Affiliates
or their respective securities) will be made available and who may receive such information in
accordance with the Assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
| ASSIGNOR [NAME OF ASSIGNOR] |
||||
| By: | ||||
| Title: | ||||
| ASSIGNEE [NAME OF ASSIGNEE] |
||||
| By: | ||||
| Title: | ||||
[Consented to and]1 Accepted:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent
| By: | ||||
| Title: | ||||
[Consented to:]2
[NAME OF RELEVANT PARTY]
| By: | ||||
| Title: | ||||
| 1 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
| 2 | To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, LC Issuer) is required by the terms of the Credit Agreement. |
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ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Non-U.S.
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
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AFFIRMATION AND AMENDMENT OF COLLATERAL DOCUMENTS
This Affirmation and Amendment of Collateral Documents (the “Affirmation”) dated as of June
15, 2006 is entered into by Viad Corp (the “Borrower”) and GES Exposition Services, Inc. (the
“Guarantor”) with and for the benefit of JPMorgan Chase Bank, National Association, the successor
by merger to Bank One, NA, as administrative agent (the “Administrative Agent”) and the other
present and future holders of Secured Obligations (as defined in Security Agreements referenced
below). Terms used but not otherwise defined herein have the meaning ascribed thereto by the
Amended Credit Agreement (as defined below).
1. Reference is made to that certain Credit Agreement dated as of June 30, 2004 among the
Borrower, the financial institutions signatory thereto, and Bank One, NA, as administrative agent
(as amended prior to the date hereof, the “Existing Credit Agreement”)
2. Reference is also made to that certain Pledge and Security Agreement dated as of June 30,
2004 by and between the Borrower and Bank One, NA, as administrative agent (the “Parent Security
Agreement”).
3. Reference is also made to that certain Subsidiary Pledge and Security Agreement dated as of
June 30, 2004 by and between the Guarantor and Bank One, NA, as administrative agent (the
“Subsidiary Security Agreement” and, collectively with the Parent Security Agreement, the “Security
Agreements”).
4. Reference is also made to that certain Guaranty made as of June 30, 2004 by the Guarantor
in favor of Bank One, NA, as administrative agent, for the benefit of the “Lenders” under the
Existing Credit Agreement (the “Subsidiary Guaranty” and, collectively with the Security
Agreements, the “Reaffirmed Documents”).
5. Reference is also made to that certain Amended and Restated Credit Agreement dated as of
the date hereof among the Borrower, the financial institutions signatory thereto (the “Lenders”)
and the Administrative Agent (the “Amended Credit Agreement”), which agreement amends and restates
the Existing Credit Agreement.
6. In order to induce the Administrative Agent and the Lenders to enter into and extend or
continue credit under the Amended Credit Agreement, the Borrower and the Guarantor (and, where
applicable, the Administrative Agent) hereby:
(a) agree to and reaffirm all of the terms and conditions of the Reaffirmed
Documents as if the same had been fully set forth herein;
(b) agree that for all purposes of the Reaffirmed Documents, the Amended Credit
Agreement shall be deemed to be the “Credit Agreement” and, hereafter, the term
“Credit Agreement” (as defined in each of the Security Agreements and the Guaranty)
shall mean the Amended Credit Agreement, as from time to time amended or modified;
(c) without limiting the foregoing, make and confirm the grant of the security
interests as set forth in Article II of each of the Security Agreements to the
Administrative Agent on behalf of, and for the benefit of, the holders of the
Secured Obligations;
(d) without limiting the foregoing, make and confirm the grant of the guaranty
as set forth in Section 3 of the Subsidiary Guaranty to the Administrative Agent on
behalf of, and for the benefit of, the holders of the Secured Obligations;
(e) agree that all references in the Reaffirmed Documents to “Bank One, NA” or
its principal office in Chicago, Illinois are deemed references to JPMorgan Chase
Bank, National Association, or its principal office in New York, New York, as
applicable;
(f) represent and warrant that the representations and warranties set forth in
Article III of each of the Security Agreements and Section 2.1 of the Subsidiary
Guaranty are true and correct on and as of the date hereof; and
7. The Administrative Agent and the Borrower further agree that the Parent Security Agreement
is amended as follows:
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(a) The definition of “Secured Obligations” is amended in its entirety to read as
follows:
“‘Secured Obligations’ means the Obligations, the Rate Management Obligations
owed to one or more of the Lenders (including Lenders that have ceased to be a party
to the Credit Agreement) or their Affiliates and all obligations in respect of
overdrafts and related liabilities owed to one or more of the Lenders (including
Lenders that have ceased to be a party to the Credit Agreement) or their Affiliates
arising from treasury, depositary and cash management services or in connection with
any automated clearinghouse transfer of funds.”
(b) Section 3.1 is amended by deleting the reference to “Section 6.15 (i) — (v) and
(vii) — (ix) of the Credit Agreement” and replacing it with a reference to “Section 6.15
(i) — (v) and (vii) — (viii) of the Credit Agreement”.
(c) Section 3.5 is amended in its entirety to read as follows:
“Property Locations. The Inventory, Equipment and Fixtures (other than
Inventory, Equipment or Fixtures having an aggregate fair market value not in excess
of an amount equal to (i) $5,000,000 minus (ii) the aggregate fair market value of
Inventory, Equipment and Fixtures of Guarantors party to the Subsidiary Security
Agreement which are not located at the locations described in Exhibit “A” thereto or
in other locations not resulting in a breach of Section 4.1.7 thereof) are located
solely at the locations described in Exhibit “A” or in other locations not resulting
in a breach of Section 4.1.7(d). As of the date hereof, all of said locations are
owned by the Borrower except for locations (i) which are leased by the Borrower as
lessee and designated in Part B of Exhibit “A” and (ii) at which Inventory is held
in a public warehouse or is otherwise held by a bailee or on consignment as
designated in Part C of Exhibit “A”, with respect to which Inventory the Borrower
has, to the extent requested by the Agent, delivered bailment agreements, warehouse
receipts, financing statements or other documents satisfactory to the Lenders to
protect the Agent’s security interest in such Inventory.”
(d) Section 4.1.5 is amended in its entirety to read as follows:
“Disposition of Collateral. The Borrower will not sell, lease or
otherwise dispose of the Collateral except (i) sales, leases or other dispositions
specifically permitted pursuant to Section 6.13 of the Credit Agreement and (ii)
until such time as the Borrower receives a notice from the Agent pursuant to Article
VII, proceeds of Inventory and Accounts collected in the ordinary course of
business.”
(e) Section 4.1.7(a) is amended in its entirety to read as follows:
“(a) preserve its existence as a corporation and not, in one transaction or a
series of related transactions, merge into or consolidate with any other entity
(except as permitted by Section 6.12 of the Credit Agreement), or sell all or
substantially all of its assets;”
(f) Section 4.1.7 from and after the end of clause (d) thereof is amended in its
entirety to read as follows:
“unless the Borrower shall have given the Agent not less than 10 Business Days’
prior written notice of such event or occurrence (or in the event of a movement of
Inventory or Equipment in connection with the change of an office of the Borrower
and/or its Subsidiaries, notice no later than 45 days after the end of the fiscal
quarter in which such movement takes place) and the Agent shall have either (x)
determined that such event or occurrence will not adversely affect the validity,
perfection or priority of the Agent’s security interest in the Collateral, or (y)
taken such steps (with the cooperation of the Borrower to the extent reasonably
necessary or advisable) as are reasonably necessary or advisable to properly
maintain the validity, perfection and priority of the Agent’s security interest in
the Collateral.”
(g) The first sentence of Section 4.3.3 is amended in its entirety to read as follows:
“If requested by the Agent following a Default or Unmatured Default, the
Borrower will give the Agent notice of its acquisition of any vehicle covered by a
certificate of title (other than a vehicle that is subject to a purchase money
security interest permitted by Section 6.15 of the Credit Agreement) and deliver
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to the Agent, upon request, the original of any vehicle title certificate and
do all things necessary to have the Lien of the Agent noted on any such
certificate.”
(h) The second sentence of Section 4.5 is amended in its entirety to read as follows:
“The Borrower will give prompt notice to the Agent of its acquisition of
ownership of uncertificated securities which are Collateral and, upon the request of
the Agent, the Borrower will take any actions necessary to cause (i) the issuers of
uncertificated securities which are Collateral and which are Securities and (ii) any
financial intermediary which is the holder of any Investment Property which is
Collateral, to cause the Agent to have and retain Control over such Securities or
other Investment Property. Without limiting the foregoing, the Borrower will, with
respect to Investment Property held with a financial intermediary, cause such
financial intermediary to enter into a control agreement with the Agent in form and
substance satisfactory to the Agent.”
(i) Section 4.6.2 is amended in its entirety to read as follows:
“Issuance of Additional Securities. Except to the extent permitted
under the Credit Agreement, the Borrower will not permit or suffer any Pledged
Issuer which is a Subsidiary to issue any securities or other ownership interests,
any right to receive the same or any right to receive earnings.”
(j) Exhibits A through F and Schedules 3.6 and 3.9 of the Parent Security
Agreement are amended in their entirety to read as set forth on Exhibits A through F
and Schedules 3.6 and 3.9 hereto.
8. The Administrative Agent and the Guarantor agree that:
(a) the sections of the Subsidiary Security Agreement corresponding to the
sections of the Parent Security Agreement amended by Section 7(a)-(i) above are
likewise amended mutatis mutandis; and
(b) Exhibits A through F and Schedules 3.6 and 3.9 of the Subsidiary Security
Agreement are amended in their entirety to read as set forth on Exhibits A through F
and Schedules 3.6 and 3.9 hereto.
9. The Administrative Agent and the Guarantor agree that the
Guaranty is amended as follows:
(a) The first sentence of Section 3 is amended in its entirety to read as
follows:
“Subject to Section 9 hereof, each of the Subsidiary Guarantors hereby
absolutely and unconditionally guarantees, as primary obligor and not as surety, the
full and punctual payment (whether at stated maturity, upon acceleration or early
termination or otherwise, and at all times thereafter) and performance of the
Obligations, the Rate Management Obligations owed to one or more of the Lenders
(including Lenders that have ceased to be a party to the Credit Agreement) or their
Affiliates and all obligations in respect of overdrafts and related liabilities owed
to one or more of the Lenders (including Lenders that have ceased to be a party to
the Credit Agreement) or their Affiliates arising from treasury, depositary and cash
management services or in connection with any automated clearinghouse transfer of
funds, including without limitation in each case any such obligations incurred or
accrued during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, whether or not allowed or allowable in such proceeding
(collectively, subject to the provisions of Section 9 hereof, being referred to
collectively as the “Guaranteed Obligations”).”
(b) Section 11 and Exhibit A of the Subsidiary Guaranty are each amended by
deleting the reference therein to “Section 6.23 of the Credit Agreement” and
replacing it with a reference to “Section 6.21 of the Credit Agreement”.
10. The parties agree that except as expressly modified hereby the Reaffirmed Documents remain
in full force and effect in accordance with their terms.
11. This Affirmation may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract.
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12. This Affirmation shall be construed in accordance with the internal laws of the State of
New York, but giving effect to federal laws applicable to national banks.
IN WITNESS WHEREOF, the Borrower and the Guarantor have executed this Affirmation as of the
date first written above.
| VIAD CORP, as Borrower |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Treasurer | |||
| GES EXPOSITION SERVICES, INC., as Guarantor |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Treasurer | |||
Acknowledged and agreed as of the date first written above
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
as Administrative Agent
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Underwriter | |||
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EXHIBIT A
(See Sections 3.4, 3.5 and 4.1.7 of Security Agreement)
Place of Business (if it has only one) or its Chief Executive Office (if it has more than one place
of business) and Mailing Address:
Locations of Inventory, Equipment and Fixtures:
| A. | Properties Owned: | |
| B. | Properties Leased: | |
| C. | Public Warehouses or other Locations pursuant to Bailment or Consignment Arrangements: |
EXHIBIT B
(See Section 3.8 of Security Agreement)
| A. | Vehicles subject to certificates of title: |
| Description | Title Number and State Where Issued | |
| B. | Aircraft/engines, ships, railcars and other vehicles governed by federal statute: |
| Description | Registration Number | |
| C. | Patents, copyrights, trademarks protected under federal law1/: |
(See attached Exhibit B-1)
| 1 | For (i) trademarks, show the trademark itself, the registration date and the registration number; (ii) trademark applications, show the trademark applied for, the application filing date and the serial number of the application; (iii) patents, show the patent number, issue date and a brief description of the subject matter of the patent; and (iv) patent applications, show the serial number of the application, the application filing date and a brief description of the subject matter of the patent applied for. Any licensing agreements for patents or trademarks should be described on a separate schedule. |
EXHIBIT B-1
TRADEMARKS:
PATENTS/PATENT APPLICATIONS:
COPYRIGHTS:
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EXHIBIT C
List of Pledged Securities and Other Investment Property
(See Section 3.12 of Security Agreement)
(See Section 3.12 of Security Agreement)
A. STOCKS:
| Issuer | Certificate Number | Number of Shares |
▇. ▇▇▇▇▇:
| Issuer | Number Face Amount | Coupon Rate | Maturity |
C. GOVERNMENT SECURITIES:
| Issuer | Number Type | Face Amount | Coupon Rate | Maturity |
D. OTHER SECURITIES OR OTHER INVESTMENT PROPERTY
(CERTIFICATED AND UNCERTIFICATED):
(CERTIFICATED AND UNCERTIFICATED):
| Issuer | Description of Collateral | Percentage Ownership Interest |
EXHIBIT D
(See Section 3.1 of Security Agreement)
| Borrower | Jurisdiction |
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EXHIBIT E
PLEDGED SHARES
BORROWER
| Foreign Or | No. of Shares / % | |||||
| Issuer | Domestic Subsidiary | Description of Collateral | Ownership Interest | |||
EXG, Inc.
|
Domestic | |||||
GES Exposition Services, Inc.
|
Domestic | |||||
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company, Inc.
|
Domestic | |||||
Las Vegas Convention Service Co.
|
Domestic | |||||
VREC, Inc.
|
Domestic | |||||
GES Exposition Services (Canada) Limited |
Foreign | |||||
Viad Holding GmbH
|
Foreign | |||||
Viad Service Companies Limited
|
Foreign | |||||
Greyhound Canada Holdings, Inc.
|
Foreign | |||||
Exhibit Acquisition, Inc.
|
Domestic |
GUARANTOR
| Foreign Or | No. Shares / % | |||||
| Issuer | Domestic Subsidiary | Description of Collateral | Ownership Interest | |||
ESR Exposition Service, Inc.
|
Domestic | |||||
Expo Accessories, Inc.
|
Domestic | |||||
Expo Display & Design, Inc.
|
Domestic | |||||
Shows Unlimited, Inc.
|
Domestic | |||||
Tradeshow Convention Services, Inc.
|
Domestic |
EXHIBIT F
EXCLUDED STOCK
| Issuer | Description of Collateral | No. Shares / % Ownership |
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SCHEDULE 3.6
PRIOR NAMES
SCHEDULE 3.9
EXISTING FINANCING STATEMENTS
8