EXECUTION VERSION
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CREDIT AGREEMENT
Dated as of July 3, 2006
among
INTERSECTIONS INC.,
CERTAIN SUBSIDIARIES THEREOF
as Borrowers,
BANK OF AMERICA, N.A.,
as the Administrative Agent
and
L/C Issuer,
and
The Other Lenders Party Hereto From Time To Time
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.....................................................1
1.02 Other Interpretive Provisions....................................22
1.03 Accounting Terms.................................................23
1.04 Rounding.........................................................23
1.05 Times of Day.....................................................23
1.06 Letter of Credit Amounts.........................................23
1.07 Covenant Adjustments.............................................24
ARTICLE IA
CONSUMMATION OF TRANSACTION; TIMING AND EFFECTIVENESS
1A.01 Consummation of Transaction......................................24
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loan........................................................25
2.02 Revolving Loans..................................................25
2.03 Borrowings of Revolving Loans....................................25
2.04 Letters of Credit................................................26
2.05 Prepayments......................................................34
2.06 Termination or Reduction of Commitments..........................35
2.07 Repayment of Loans...............................................36
2.08 Interest.........................................................36
2.09 Fees.............................................................36
2.10 Computation of Interest and Fees.................................37
2.11 Evidence of Debt.................................................37
2.12 Payments Generally; the Administrative Agent's Clawback..........38
2.13 Sharing of Payments..............................................40
2.14 Designated Co-Borrowers; Joint and Several Liability;
Borrowers' Waivers and Consents; Agency of the Company...........40
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes............................................................45
3.02 [Reserved].......................................................46
3.03 [Reserved].......................................................46
3.04 Increased Costs..................................................46
3.05 Mitigation Obligations...........................................47
3.06 Survival.........................................................48
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension...........................48
4.02 Conditions to all Credit Extensions..............................50
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws.........51
5.02 Authorization; No Contravention..................................51
5.03 Governmental Authorization; Other Consents.......................52
5.04 Binding Effect...................................................52
5.05 Financial Statements; No Material Adverse Effect; No
Internal Control Event...........................................52
5.06 Litigation.......................................................53
5.07 No Default.......................................................53
5.08 Ownership of Property; Liens.....................................53
5.09 Environmental Compliance.........................................53
5.10 Insurance........................................................53
5.11 Taxes............................................................53
5.12 ERISA Compliance.................................................54
5.13 Subsidiaries.....................................................54
5.14 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act......................................54
5.15 Disclosure.......................................................55
5.16 Compliance with Laws.............................................55
5.17 Intellectual Property; Licenses, Etc.............................55
5.18 Rights in Collateral; Priority of Liens..........................55
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements.............................................56
6.02 Certificates; Other Information..................................57
6.03 Notices..........................................................59
6.04 Payment of Obligations...........................................59
6.05 Preservation of Existence, Etc...................................59
6.06 Maintenance of Properties........................................60
6.07 Maintenance of Insurance.........................................60
6.08 Compliance with Laws.............................................60
6.09 Books and Records................................................60
6.10 Inspection Rights................................................60
6.11 Use of Proceeds..................................................60
6.12 Financial Covenants..............................................61
6.13 Additional Subsidiaries..........................................61
6.14 Collateral Records...............................................62
6.15 Security Interests...............................................62
6.16 Bank Accounts....................................................62
6.17 Conditions Subsequent............................................62
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Liens............................................................63
7.02 Investments......................................................64
7.03 Indebtedness.....................................................65
7.04 Fundamental Changes..............................................66
7.05 Dispositions.....................................................66
7.06 Restricted Payments..............................................67
7.07 Acquisitions.....................................................67
7.08 Change in Nature of Business.....................................68
7.09 Transactions with Affiliates.....................................68
7.10 Burdensome Agreements............................................68
7.11 Use of Proceeds..................................................68
7.12 Foreign Subsidiaries.............................................69
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default................................................69
8.02 Remedies Upon Event of Default...................................71
8.03 Application of Funds.............................................71
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of the Administrative Agent........72
9.02 Rights as a Lender...............................................73
9.03 Exculpatory Provisions...........................................73
9.04 Reliance by the Administrative Agent.............................74
9.05 Delegation of Duties.............................................74
9.06 Resignation of the Administrative Agent..........................75
9.07 Non-Reliance on the Administrative Agent and Other Lenders.......76
9.08 No Other Duties, Etc.............................................76
9.09 The Administrative Agent May File Proofs of Claim................76
9.10 Guaranty Matters.................................................77
9.11 Collateral Matters...............................................77
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc..................................................78
10.02 Notices; Effectiveness; Electronic Communications................80
10.03 No Waiver; Cumulative Remedies...................................82
10.04 Expenses; Indemnity; Damage Waiver...............................82
10.05 Payments Set Aside...............................................84
10.06 Successors and Assigns...........................................84
10.07 Treatment of Certain Information; Confidentiality................88
10.08 Right of Setoff..................................................89
10.09 Interest Rate Limitation.........................................89
10.10 Counterparts; Integration; Effectiveness.........................89
10.11 Survival of Representations and Warranties.......................90
10.12 Severability.....................................................90
10.13 Governing Law; Arbitration.......................................90
10.14 USA PATRIOT Act Notice...........................................92
10.15 Time of the Essence..............................................92
SCHEDULES
1.01 Designated Co-Borrowers
2.01 Revolving Credit Commitments and Applicable Revolving Credit
Percentages
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
6.17 Conditions Subsequent
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
10.02 Administrative Agent's Office, Certain Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
Form of
A Revolving Loan Notice
B-1 Term Loan Note
B-2 Revolving Loan Note
C Compliance Certificate
D Assignment and Assumption
E Designated Co-Borrower Request and Assumption Agreement
F Designated Borrower Notice
CREDIT AGREEMENT
CREDIT AGREEMENT (this "AGREEMENT") is entered into as of July 3,
2006, among INTERSECTIONS INC., a Delaware corporation ("COMPANY"), certain
Subsidiaries of the Company party hereto from time to time (together with the
Company, the "Borrowers" and each a "Borrower"), each lender from time to time
party hereto (collectively, "Lenders" and individually, a "Lender"), and BANK OF
AMERICA, N.A., as the Administrative Agent and L/C Issuer.
In connection with and in order to effectuate the Transaction, as
defined herein, the Borrowers have requested that the Lenders provide the
Borrowers with a revolving credit facility and a term loan, and Lenders are
willing to do so on the terms and conditions set forth herein. In consideration
of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ACCEPTANCE" has the meaning specified in Section 1A.01.
"ACQUISITION" means the acquisition of (i) a controlling equity or
other controlling ownership interest in another Person (including the purchase
of an option, warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder thereof),
whether by purchase of such equity or other ownership interest or upon the
exercise of an option or warrant for, or conversion of securities into, such
equity or other ownership interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"ADMINISTRATIVE AGENT" or "AGENT" means Bank of America in its
capacity as administrative agent under any of the Loan Documents, or any
successor administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGGREGATE COMMITMENTS" means, as at the date of determination
thereof, the sum of (a) the Aggregate Revolving Credit Commitments at such date,
plus (b) the Outstanding Amount with respect to the Term Loan at such date.
"AGGREGATE REVOLVING CREDIT COMMITMENTS" means, as at the date of
determination thereof, the Revolving Credit Commitments of all the Revolving
Lenders at such date.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE PERCENTAGE" means, with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) equal to:
(a) the sum of (i) such Lender's Revolving Credit Commitment at
such time (or, if a Commitment Termination Event has occurred, the
Revolving Credit Commitment of such Lender in effect immediately prior
to such termination and after giving effect to any subsequent
assignments), plus (ii) the portion of the outstanding principal
amount of the Term Loan funded by such Lender, after giving effect to
any subsequent assignments,
DIVIDED BY
(b) the sum of (i) the Aggregate Revolving Credit Commitments
(or, if a Commitment Termination Event has occurred, the Aggregate
Revolving Credit Commitments most recently in effect immediately prior
to such termination), plus (ii) the outstanding principal amount of
the Term Loan.
"APPLICABLE REVOLVING CREDIT PERCENTAGE" means with respect to any
Revolving Lender at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Revolving Credit Commitments represented by such
Revolving Lender's Revolving Credit Commitment at such time. If a Commitment
Termination Event has occurred, then the Applicable Revolving Credit Percentage
of each Revolving Lender shall be determined based on the Applicable Revolving
Credit Percentage of such Revolving Lender most recently in effect, giving
effect to any subsequent assignments, and the Aggregate Revolving Credit
Commitment most recently in effect. The initial Applicable Revolving Credit
Percentage of each Lender is set forth opposite the name of such Revolving
Lender on SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which
such Revolving Lender becomes a party hereto, as applicable.
"APPLICABLE TERM LOAN PERCENTAGE" means, with respect to each Term
Loan Lender, at any time, the percentage (carried out to the ninth decimal
place) of the Outstanding Amount of the Term Loan owing to such Term Loan Lender
as of the date of measurement thereof, after giving effect to any assignments
made pursuant to SECTION 10.06 on or prior to such date of measurement.
"APPLICABLE RATE" means, from time to time, the following percentages
per annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to
SECTION 6.02(b):
Applicable Rate:
LIBOR Monthly
Floating Rate+
Pricing Consolidated -------------
Level Leverage Ratio Unused Fee L/C Fee
------------ ------------------------ ---------------- ---------------
1 Less than or equal to 0.150% 1.000%
1.00 to 1.00
2 Less than or equal to 0.200% 1.250%
1.50 to 1.00, but greater
than 1.00 to 1.00
3 Less than or equal to 0.250% 1.500%
2.00 to 1.00, but greater
than 1.50 to 1.00
4 Greater than 2.00 to 1.00 0.250% 1.750%
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the first
Business Day of the month immediately following the date a Compliance
Certificate is delivered pursuant to SECTION 6.02(b) ("APPLICABLE RATE CHANGE
DATE"); PROVIDED, HOWEVER, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Level 4 shall apply as of
the first Business Day of the month following the date such Compliance
Certificate was required to have been delivered. The Applicable Rate in effect
from the Closing Date through the first Applicable Rate Change Date, shall be
determined based upon Pricing Level 1.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by SECTION 10.06(b)(iv)), and accepted by the Administrative
Agent, in substantially the form of EXHIBIT D or any other form approved by the
Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated balance
sheet of the Company and its Subsidiaries for the fiscal year ended December 31,
2005, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.
"AVAILABILITY PERIOD" means the period from and including the Closing
Date to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of
a Commitment Termination Event.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BORROWER" has the meaning specified in the introductory paragraph
hereto.
"BORROWING" means any of (i) the advance of the Term Loan on the
Closing Date pursuant to Section 2.01, or (ii) a Revolving Borrowing as the
context may require.
"BORROWER MATERIALS" has the meaning specified in Section 6.02.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located,
and to the extent such day relates to the determination of the LIBOR Monthly
Floating Rate, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
"CASH COLLATERALIZE" has the meaning specified in SECTION 2.03(g).
"CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group"(as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person or its subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or administrator of any
such plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that a person or group shall
be deemed to have "beneficial ownership" of all securities that such person or
group has the right to acquire (such right, an "OPTION RIGHT"), whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of 40% (or, to the extent lower, the percentage of beneficial
ownership held by Loeb Holding Corporation and its Affiliates but in no event
less than 25%) or more of the equity securities of the Company entitled to vote
for members of the board of directors or equivalent governing body of the
Company on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); PROVIDED, that with respect to Loeb Holding Corporation and its
Affiliates the "40%" in this subpart (a) shall be deemed to read "49%" and the
parenthetical following such percentage shall be disregarded;
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Company cease to be composed of individuals (i) who were members of that board
or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors.
"CLOSING DATE" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived
in accordance with SECTION 10.01.
"CMSI" means Chartered Marketing Services, Inc.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" shall mean any and all assets and rights and interests in
or to property of the Borrowers, whether real or personal, tangible or
intangible, in which a Lien is granted or purported to be granted pursuant to
the Collateral Documents but shall not include the Excluded Property.
"COLLATERAL DOCUMENTS" means the Security Agreement (including any
joinder agreement thereto), the Pledge Agreement (including any joinder
agreement thereto), the Domain Name Transfer Agreement and all other agreements,
instruments and documents now or hereafter executed and delivered in connection
with this Agreement pursuant to which Liens are granted or purported to be
granted to the Administrative Agent in Collateral securing all or part of the
Obligations, each in form and substance satisfactory to the Administrative
Agent.
"COMMITMENT TERMINATION EVENT" means the occurrence of any of the
following: (y) the termination, pursuant to SECTION 2.06 or 8.02 or otherwise,
of the Revolving Credit Commitment of each Revolving Lender to make Revolving
Loans or the L/C Issuer to make L/C Credit Extensions, or (z) the expiration of
the Aggregate Revolving Credit Commitments.
"COMPANY" has the meaning specified in the introductory paragraph
hereto.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT D.
"CONSOLIDATED CASH FLOW" means for any period, for the Company and its
Subsidiaries on a consolidated basis, (a) net income, after income tax, (b) less
income or plus loss from discontinued operations and extraordinary items, (c)
plus depreciation, amortization and other non-cash charges, (d) plus interest
expense on all obligations, and (e) minus dividends, withdrawals and other
distributions (to include stock buybacks), and (f) minus any unfinanced capital
expenditures; provided that for the purposes of calculating Consolidated Cash
Flow, Screening shall be deemed to be a Subsidiary but amounts otherwise
includable in Consolidated Cash Flow attributable to the results of operations
of Screening shall only be included to the extent that such amounts were
distributed in cash by Screening to the Company during the applicable period.
"CONSOLIDATED EBITDA" means for any period, for the Company and its
Subsidiaries on a consolidated basis, (a) net income, (b) less income or plus
loss from discontinued operations and extraordinary items, (c) plus income
taxes, (d) plus interest expense, (e) plus depreciation, depletion,
amortization, impairment of good will, write-down of intangibles, and the
amortization and expensing of non-cash stock-based compensation; provided that
for the purposes of calculating Consolidated EBITDA, Screening shall be deemed
to be a Subsidiary but amounts otherwise includable in Consolidated EBITDA
attributable to the results of operations of Screening shall only be included to
the extent that such amounts were distributed in cash by Screening to the
Company during the applicable period.
"CONSOLIDATED FIXED CHARGES" means for any period, for the Company and
its Subsidiaries on a consolidated basis, the sum of (a) the current portion
(scheduled principal) of long term debt, (b) the current portion (scheduled
principal) of capitalized lease obligations, and (c) interest expense on all
obligations during such period and (d) Ordinary Dividends paid by the Company
during such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means for any date of
determination the ratio of (a) Consolidated Cash Flow for the specified period
ending immediately prior to such date of determination to (b) Consolidated Fixed
Charges for such period.
"CONSOLIDATED LEVERAGE RATIO" means for any date of determination the
ratio of (a) Consolidated Total Funded Debt determined as of the last day of the
specified period to (b) Consolidated EBITDA for such period.
"CONSOLIDATED TANGIBLE NET WORTH" means, for the Company and its
Subsidiaries on a consolidated basis, the value of total assets (including
leaseholds and leasehold improvements and reserves against assets but excluding
goodwill, patents, trademarks, trade names, organization expense, unamortized
debt discount and expense, capitalized or deferred research and development
costs, and other like intangibles, and monies due from Affiliates, officers,
directors, employees, shareholders, members or managers) less total liabilities,
including but not limited to accrued and deferred income taxes.
"CONSOLIDATED TOTAL FUNDED DEBT" means for any date, for the Company
and its Subsidiaries on a consolidated basis, all outstanding liabilities for
borrowed money and other interest-bearing liabilities, including current and
long term liabilities as of such date.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"COST OF ACQUISITION" means, with respect to any Acquisition, as at
the date of entering into any agreement therefor, the difference between (1) the
sum of the following (without duplication): (a) the value of the capital stock,
warrants or options to acquire capital stock of any Borrower or any Subsidiary
to be transferred in connection therewith, (b) the amount of any cash and fair
market value of other property (excluding property described in CLAUSE (a) and
the unpaid principal amount of any debt instrument) given as consideration, (c)
the amount (determined by using the face amount or the amount payable at
maturity, whichever is greater) of any Indebtedness incurred, assumed, acquired
or repaid by any Borrower or any Subsidiary in connection with such Acquisition,
(d) all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the balance sheet of the
Company and its Subsidiaries in accordance with GAAP, (e) all amounts paid in
respect of covenants not to compete, consulting agreements that should be
recorded on financial statements of the Company and its Subsidiaries in
accordance with GAAP, (f) the aggregate fair market value of all other
consideration given by any Borrower or any Subsidiary in connection with such
Acquisition, and (g) out-of-pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred in effecting
such transaction, and other similar transaction costs so incurred and
capitalized in accordance with GAAP; and (2) the net cash proceeds received as a
result of such Acquisition. For purposes of determining the Cost of Acquisition
for any transaction, the capital stock of any Person shall be valued (i) in the
case of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc. ("NASDAQ") or
is listed on a national securities exchange, the average of the last reported
bid and ask quotations or the last prices reported thereon, and (ii) with
respect to any other shares of capital stock, as determined by the Board of
Directors of such Borrower and, if requested by the Administrative Agent,
determined to be a reasonable valuation by the independent public accountants
referred to in SECTION 6.01(a).
"CREDIT EXTENSION" means each of the following: (a) a Term Loan, (b) a
Revolving Borrowing and (c) an L/C Credit Extension.
"CREDIT FACILITY" means each of the Term Loan and the Revolving Credit
Facility.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"DEFAULT RATE" means (a) when used with respect to Obligations other
than the L/C Fees an interest rate equal to (i) the LIBOR Monthly Floating Rate
PLUS (ii) the Applicable Rate based on Pricing Level 4 PLUS (iii) 2% per annum,
and (b) when used with respect to the L/C Fees, a rate equal to (i) the
Applicable Rate based on Pricing Level 4 PLUS (ii) 2% per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Term Loan, the Revolving Loans, or participations in L/C
Obligations required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay over
to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"DESIGNATED CO-BORROWER" means each of (i) the Company, (ii) each
Subsidiary listed on SCHEDULE 1.01 and (iii) each other direct or indirect
Domestic Subsidiary of the Company which the Company designates as a Designated
Co-Borrower from time to time in accordance with SECTIONS 2.14 and 6.13, but
excluding any Designated Co-Borrower released in accordance with SECTION 9.10 or
SECTION 10.01.
"DESIGNATED BORROWER NOTICE" has the meaning specified in SECTION
2.14.
"DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT" has the meaning
specified in SECTION 2.14.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"DOLLAR" and "$" mean lawful money of the United States.
"DOMAIN NAME TRANSFER AGREEMENT" means the Domain Name Transfer
Agreement dated of even date herewith made by each Borrower in favor of the
Administrative Agent for the benefit of the Secured Parties, in form and
substance satisfactory to the Administrative Agent, to be delivered in escrow to
the Administrative Agent on the Closing Date.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender;
and (c) any other Person (other than a natural person) approved by (i) the
Administrative Agent and the L/C Issuer, and (ii) unless an Event of Default has
occurred and is continuing, the Company (each such approval not to be
unreasonably withheld or delayed); PROVIDED that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Company or any of the Company's
Affiliates or Subsidiaries.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY INTERESTS" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Borrower (including CMSI) within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower
or any ERISA Affiliate.
"ESCROW AGREEMENT" means that certain Escrow Agreement dated as of
July 3, 2006 by and among the Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as
Shareholder Representative, and SunTrust Bank, as Escrow Agent.
"ESCROW FUND" means the escrow fund established under the Escrow
Agreement into which proceeds of the Term Loan will be deposited directly upon
the funding thereof on the Closing Date.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The LIBOR Monthly Floating Rate for each
outstanding Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCLUDED PROPERTY" means (i) any owned or leased real Property, (ii)
any owned or leased personal property which is located outside of the United
States, (iii) any personal property (including, without limitation, motor
vehicles) in respect of which perfection of a Lien is not either (i) governed by
the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien
being filed in any of the United States Copyright Office, the United States
Patent and Trademark Office, the Canadian Copyright Office and the Canadian
Patent and Trademark Office, (iv) any property subject to a Permitted Lien if
the documents governing such Lien or the Indebtedness secured thereby prohibit
the Loan Party owning such property from granting any other Liens in such
property, (v) any lease, license or other contract or any rights thereunder if
the grant of a security interest in such lease, license, contract or rights is
prohibited by the terms of such lease, license or contract or by applicable law
and would result in the termination of such lease, license or contract, but only
to the extent that any such prohibition is not rendered ineffective pursuant to
the Uniform Commercial Code or any other applicable law (including Debtor Relief
Laws), (vi) any Internet domain name owned or held by any Loan Party in trust or
otherwise for the beneficial ownership of a third party, (vii) any real or
personal property owned by Screening and (vii) any ownership interest of any
Loan Party in Screening.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrowers hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, and (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which any Borrower is located.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement dated
as of September 8, 1998 among CMSI, the lenders party thereto and Bank of
America, as administrative agent (as successor to Fleet National Bank).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"FOREIGN SUBSIDIARY" means any Subsidiary organized under the laws of
a political subdivision outside of the United States.
"FRB" means the Board of Governors of the Federal Reserve System of
the United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"GRANTOR" means each of the Company and each other Borrower and each
existing and future Domestic Subsidiary of the Company executing the Security
Agreement (or a joinder agreement with respect thereto).
"GUARANTEE" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income, earnings or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"GUARANTOR" means each existing and future direct and indirect Foreign
Subsidiary of the Company required by the Required Lenders to execute the
Guaranty (or a joinder agreement with respect thereto).
"GUARANTY" means a Guaranty (and each joinder agreement with respect
thereto) made by each Guarantor in favor of the Administrative Agent for the
benefit of the Secured Parties, in form and substance satisfactory to the
Administrative Agent.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in
the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse, but excluding indebtedness
arising under customary reservations or retentions of title in
agreements with suppliers entered into in the ordinary course of
business;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
in each case only to the extent due prior to the Revolving Credit
Maturity Date; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in Section 10.04(b).
"INFORMATION" has the meaning specified in Section 10.06.
"INTERNAL CONTROL EVENT" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Company's internal controls over financial reporting, in each case as described
in the Securities Laws.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) an Acquisition. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit, the L/C
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and any Borrower in favor of the L/C Issuer and relating to any
such Letter of Credit.
"LAWS" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities (including, without
limitation, Environmental Laws and ERISA), including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Revolving Lender, such
Revolving Lender's funding of its participation in any L/C Borrowing in
accordance with its Applicable Revolving Credit Percentage.
"L/C APPLICATION" means an application and agreement for the issuance
or amendment of a Letter of Credit in the form from time to time in use by the
L/C Issuer.
"L/C BORROWING" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of
the amount thereof.
"L/C EXPIRATION DATE" means the day that is seven (7) days prior to
the Revolving Credit Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"L/C FEES" has the meaning specified in Section 2.04(i).
"L/C ISSUER" means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit
plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"L/C SUBLIMIT" means an amount equal to $5,000,000. The L/C Sublimit
is part of, and not in addition to, the Aggregate Revolving Credit Commitments.
"LENDER" has the meaning specified in the introductory paragraph
hereto.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender described as such in such Lender's Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the
Company and the Administrative Agent.
"LETTER OF CREDIT" means any standby letter of credit issued.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"LIBOR MONTHLY FLOATING RATE" means a rate per annum determined by the
Administrative Agent pursuant to the following formula:
LIBOR Monthly Floating Rate = LIBOR Monthly Floating Base Rate
----------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"LIBOR Monthly Floating Base Rate" means, for all Loans, on each day
any such Loan is outstanding, the fluctuating rate of interest (rounded upwards,
as necessary, to the nearest 1/100 of 1%) equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two (2) Business Days prior to the most recent Interest Rate Change Date,
for Dollar deposits (for delivery on such Interest Rate Change Date) with a term
of one month, as adjusted from time to time in the Administrative Agent's sole
discretion for changes in deposit insurance requirements and other regulatory
costs. If such rate is not available at such time for any reason, then the
"LIBOR Monthly Floating Base Rate" shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery in
same day funds in the approximate amount of the Loans outstanding with a term
equivalent to a one-month would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time), on each day any such Loan is
outstanding.
"INTEREST RATE CHANGE DATE" means the first day of each month;
provided however, that if such date is not a Business Day, then the "Interest
Rate Change Date" shall be the next succeeding Business Day.
"LOAN" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Term Loan or a Revolving Loan.
"LOAN DOCUMENTS" means this Agreement, each Note, each Issuer
Document, each Collateral Document and the Guaranty.
"LOAN PARTIES" means, collectively, each Borrower and each Person
(other than the Administrative Agent, the L/C Issuer, or any Lender) executing a
Loan Document including, without limitation, each Guarantor and each Person
executing a Collateral Document, and all entities acquired and constituting
Subsidiaries after giving effect to the Transactions.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"MERGER AGREEMENT" means, collectively, the Merger Agreement dated as
of June 9, 2006 among the Company, CMS Merger Inc., CMSI, Chartered Holdings,
LLC, and the other shareholders of CMSI and the letter agreement dated as of
June 30, 2006 among the Company, CMSI and the shareholder representative.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"NOTES" means, collectively, the Revolving Loan Notes and the Term
Loan Notes.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, or arising
under any Related Credit Arrangement, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"ORDINARY DIVIDENDS" means cash dividends paid to the holders of
capital stock of the Company in the ordinary course of business.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp, intangible or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"OUTSTANDING AMOUNT" means (i) with respect to the Term Loan on any
date, the aggregate outstanding principal amount thereof after giving effect to
any prepayments or repayments of such Term Loan occurring on such date, (ii)
with respect to Revolving Loans, on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of Revolving Loans occurring on such date; and (ii) with respect
to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements by a Borrower of Unreimbursed
Amounts.
"PARTICIPANT" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by a Borrower or any
ERISA Affiliate or to which a Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"PERMITTED ACQUISITIONS" has the meaning given thereto in Section
7.07.
"PERMITTED LIENS" has the meaning given thereto in Section 7.01.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by a Borrower (including CMSI) or, with
respect to any such plan that is subject to Section 412 of the Code or Title IV
of ERISA, any ERISA Affiliate.
"PLATFORM" has the meaning specified in Section 6.02.
"PLEDGE AGREEMENT" means the Pledge Agreement dated of even date
herewith (including each joinder agreement with respect thereto) made by each
Pledgor in favor of the Administrative Agent for the benefit of the Secured
Parties, in form and substance satisfactory to the Administrative Agent, as from
time to time the same may be amended, restated, supplemented, or otherwise
modified, amended and restated or replaced.
"PLEDGOR" means each of the Company, and each other Borrower and each
existing and future Domestic Subsidiary of the Company executing the Pledge
Agreement (or a joinder agreement with respect thereto).
"PRIME RATE" means, for any day, the rate of interest in effect for
such day as publicly announced from time to time by the Administrative Agent as
its "prime rate". The "prime rate" is a rate set by the Administrative Agent
based upon various factors including the Administrative Agent's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, and may not be its lowest rate offered.
Any change in such rate announced by the Administrative Agent shall take effect
at the opening of business on the day specified in the public announcement of
such change.
"REGISTER" has the meaning specified in Section 10.06(c).
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified in the
Securities Laws and shall be independent of the Company and its Subsidiaries as
prescribed by the Securities Laws and shall be reasonably satisfactory to the
Administrative Agent.
"RELATED CREDIT ARRANGEMENTS" means, collectively, Related Swap
Contracts and Related Treasury Management Arrangements.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"RELATED SWAP CONTRACT" means all Swap Contracts that are entered into
or maintained with a Lender or Affiliate of a Lender in connection with
Indebtedness of the Borrowers arising under the Loan Documents.
"RELATED TREASURY MANAGEMENT ARRANGEMENTS" means all arrangements for
the delivery of treasury management services to or for the benefit of any Loan
Party which are entered into or maintained with a Lender or Affiliate of a
Lender and which are not prohibited by the express terms of the Loan Documents.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of ERISA, other than events for which the 30 day notice period has been
waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Revolving
Borrowing, a Revolving Loan Notice, and (b) with respect to an L/C Credit
Extension, a L/C Application.
"REQUIRED LENDERS" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02,
Lenders holding in the aggregate more than 50% of the Total Outstandings (with
the aggregate amount of each Revolving Lender's risk participation and funded
participation in L/C Obligations being deemed "held" by such Lender for purposes
of this definition); provided that the Revolving Credit Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.
"REQUIRED REVOLVING LENDERS" means as of any date of determination,
Revolving Lenders having more than 50% of the Aggregate Revolving Credit
Commitments and Outstanding Amount of Revolving Loans (including risk
participations in Letters of Credit) under the Revolving Credit Facility;
provided that (i) the Revolving Credit Commitment of, and the portion of the
Outstanding Amount (including risk participations in Letters of Credit) under
the Revolving Credit Facility held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving
Lenders
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of a Borrower or a Guarantor, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
or on account of any return of capital to stockholders, partners or members (or
the equivalent Person thereof) of a Borrower or a Guarantor.
"REVOLVING BORROWING" means a borrowing consisting of simultaneous
Revolving Loans made by each of the Revolving Lenders pursuant to Section 2.02.
"REVOLVING CREDIT COMMITMENT" means, as to each Revolving Lender, its
obligation to (a) make Revolving Loans to the Borrowers pursuant to Section
2.02, and (b) purchase participations in L/C Obligations, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Revolving Lender's name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.
"REVOLVING CREDIT FACILITY" means the facility described in Section
2.02 providing for Revolving Loans to the Borrowers by the Revolving Lenders in
the maximum aggregate principal amount at any time outstanding of $25,000,000.
"REVOLVING CREDIT MATURITY DATE" means July 1, 2011.
"REVOLVING LENDER" means each Lender that has a Revolving Credit
Commitment or, following termination of the Revolving Credit Commitments, has
Revolving Loans outstanding or participations in an outstanding Letter of
Credit.
"REVOLVING LOAN" means a Loan made to the Borrowers by a Revolving
Lender in accordance with its Applicable Revolving Credit Percentage pursuant to
Section 2.02, except as otherwise provided herein.
"REVOLVING LOAN NOTE" means a promissory note made by each Borrower in
favor of a Revolving Lender evidencing Revolving Loans made by such Revolving
Lender, substantially in the form of Exhibit B-2. "Revolving Loan Notice" means
a notice of a Revolving Borrowing pursuant to Section 2.03(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SCREENING" means Screening International LLC and each Subsidiary
thereof, together with any successor company into which Screening is merged or
consolidated or reformed, so long as such resulting company is engaged in the
same line of business as currently conducted by Screening International LLC.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECURED PARTIES" means each of the Administrative Agent, the L/C
Issuer, each Lender and each other Person party to a Related Credit Arrangement.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"SECURITY AGREEMENT" means the Security Agreement dated of even date
herewith (and each joinder agreement with respect thereto) made by each Grantor
in favor of the Administrative Agent for the benefit of the Secured Parties, in
form and substance satisfactory to the Administrative Agent, as from time to
time the same may be amended, restated, supplemented, or otherwise modified,
amended and restated or replaced.
"SUBSIDIARY" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Company. Notwithstanding the foregoing, except for purposes of financial
reporting (including, without limitation, with respect to Sections 5.05, 6.01,
6.02, 6.03, 6.12 and any defined terms used in such Sections), the term
"Subsidiary" or "Subsidiaries" shall not include Screening.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"TERM LOAN" means the loans made by the Term Loan Lenders pursuant to
the Term Loan Facility in accordance with Section 2.01.
"TERM LOAN FACILITY" means the facility described in Section 2.01
providing for the advance of the Term Loan to the Borrowers by the Term Loan
Lenders in the original principal amount of $15,000,000.
"TERM LOAN LENDER" means each Lender that has a portion of the Term
Loan outstanding under the Term Loan Facility.
"TERM LOAN MATURITY DATE" means (a) July 1, 2011 or (b) such earlier
date upon which the Outstanding Amounts under the Term Loan Facility, including
all accrued and unpaid interest, are paid in full in accordance with the terms
hereof.
"TERM LOAN NOTE" means a promissory note made by each Borrower in
favor of a Term Loan Lender evidencing the portion of the Term Loan made by such
Term Loan Lender, substantially in the form of Exhibit B-1.
"THRESHOLD AMOUNT" means $500,000.
"total outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
TOTAL REVOLVING CREDIT OUTSTANDINGS" means the aggregate Outstanding
Amount of all Revolving Loans and L/C Obligations.
"TRANSACTION" means the Acquisition by the Company, or its Subsidiary,
as the case may be, of CMSI substantially contemporaneously with the
effectiveness of this Agreement.
"TRANSACTION DOCUMENTS" means the Merger Agreement dated as of June 9,
2006 among the Company, CMS Merger Inc., CMSI, Chartered Holdings, LLC, and the
other shareholders of CMSI, the Escrow Agreement and all other documents
executed and delivered in connection therewith for the purpose of consummating
the Transaction.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning specified in Section 2.03(c)(i).
"UNUSED FEE" has the meaning specified in Section 2.09(a).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to
be followed by the phrase "without limitation." The word "WILL" shall be
construed to have the same meaning and effect as the word "SHALL." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"HEREIN," "HEREOF" and "HEREUNDER," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "ASSET" and
"PROPERTY" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "FROM" means "FROM AND INCLUDING;" the words "TO"
and "UNTIL" each mean "TO BUT EXCLUDING;" and the word "THROUGH" means "TO AND
INCLUDING."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) GENERALLY. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) CHANGES IN GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrowers or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrowers shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (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.
(c) CONSOLIDATION OF VARIABLE INTEREST ENTITIES. All references herein
to consolidated financial statements of the Company (or the Borrowers) and its
Subsidiaries or to the determination of any amount for the Company (or the
Borrowers) and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the
Borrower is required to consolidate pursuant to FASB Interpretation No. 46 -
Consolidation of Variable Interest Entitles: an interpretation of ARB No. 51
(January 2003) as if such variable interest entity were a Subsidiary as defined
herein.
(d) CONSOLIDATED SUBSIDIARIES. The phrase "the Company and its
Subsidiaries", when used herein with respect to references to financial
statements or financial covenant calculations and related definitions, shall
mean only the Company and its majority-owned direct and indirect Subsidiaries
that are consolidated with the Company for financial accounting purposes in
conformity with GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Company (or the Borrowers) pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; PROVIDED, HOWEVER, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time and provided further, that the amount of a Letter of Credit shall not
include any portion of the face amount of such Letter of Credit that has been
permanently reduced.
1.07 COVENANT ADJUSTMENTS.
(a) COVENANT ACQUISITION ADJUSTMENT. Except as otherwise expressly
provided herein, for purposes of calculating the financial covenants in Section
6.12(b) and (c) for any period (or a portion of a period) that includes the date
of the consummation of any Permitted Acquisition or the Transaction, references
to "the Company and its Subsidiaries" shall include each acquired Person, or
lines of business, as applicable, and the EBITDA and Cash Flow of such acquired
Person or line of business (such EBITDA or Cash Flow to be formulated on the
basis of the definition of Consolidated EBITDA and Consolidated Cash Flow,
respectively, set forth herein), as if the Acquisition had been consummated on
the first day of any such period of measurement.
(b) COVENANT DISPOSITION ADJUSTMENT. Except as otherwise expressly
provided herein, for purposes of calculating the financial covenants in Section
6.12(b) and (c) for any period (or a portion of a period) that includes the date
of any Disposition of a Subsidiary or line of business, as applicable,
Consolidated EBITDA and Consolidated Cash Flow shall be determined on a
historical pro forma basis to exclude the results of operations of such
Subsidiary or line of business, as applicable, so disposed.
ARTICLE IA
CONSUMMATION OF TRANSACTION; TIMING AND EFFECTIVENESS
1A.01 CONSUMMATION OF TRANSACTION. The parties acknowledge and agree
that the proceeds of the Term Loan, as defined herein, are to be used solely to
pay a portion of the purchase price of the Transaction pursuant to the Merger
Agreement, as defined herein, and related costs and expenses of the Transaction.
The Company and CMSI hereby represent and agree that contemporaneously with and
immediately upon the effectiveness of this Agreement and the funding of the Term
Loan into the Escrow Fund, all conditions to closing of the Transaction
contained in the Merger Agreement shall have been satisfied and the Transaction
will have been consummated in accordance with the terms of the Transaction
Documents (except for disbursement of the Escrow Fund and other ministerial
acts), subject only to confirmation by the Secretary of State of the State of
Illinois that the Articles of Merger with respect to the Transaction have been
accepted thereby (the "Acceptance"). Accordingly, contemporaneously and
immediately upon the effectiveness of this Agreement, but subject to the
Acceptance, CMSI will be a Subsidiary of the Company and a Borrower hereunder, a
Grantor under the Security Agreement and will otherwise constitute a Loan Party
without further action by the Company, CMSI, the Administrative Agent or any
other Person. The parties agree that in the event that by 6:00 p.m. on July 10,
2006, the Acceptance has not occurred, the Company shall make a prepayment of
the Term Loan in an amount equal to the outstanding principal balance thereof.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 TERM LOAN. (a) Subject to the terms and conditions of this
Agreement, each Term Loan Lender severally agrees to make an advance of its
Applicable Term Loan Percentage of the Term Loan to the Borrowers, on a joint
and several basis, on the Closing Date. The principal amount of the Term Loan
outstanding hereunder from time to time shall bear interest and the Term Loan
shall be repayable as herein provided. No amount of the Term Loan repaid or
prepaid by the Borrowers may be reborrowed hereunder, and no subsequent
Borrowing under the Term Loan Facility shall be allowed after the initial such
advance of the Term Loan on the Closing Date.
(b) Not later than 1:00 P.M. on the Closing Date each Term Loan Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make the amount of its Applicable Term Loan Percentage of the Term Loan
available by wire transfer to the Administrative Agent. Such wire transfer shall
be directed to the Administrative Agent at the Administrative Agent's Office and
shall be in the form of same day funds in Dollars. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, including the satisfaction of all applicable conditions in Sections
4.01 and 4.02, be made available to the Borrowers by delivery of the proceeds
thereof as shall be directed by a Responsible Officer of the Company and
reasonably acceptable to the Administrative Agent.
2.02 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make Revolving Loans to the
Borrowers, on a joint and several basis, from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Revolving Lender's Revolving Credit Commitment;
provided, however, that after giving effect to any Revolving Loan, (i) the Total
Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Revolving Lender, plus such Revolving Lender's Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations shall not exceed
such Revolving Lender's Revolving Credit Commitment. Within the limits of each
Revolving Lender's Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Borrowers may borrow under this Section 2.02, prepay
under Section 2.05 and reborrow under this Section 2.02. The principal amount of
the Revolving Loans outstanding hereunder from time to time shall bear interest
as herein provided.
2.03 BORROWINGS OF REVOLVING LOANS. (a) Each Revolving Borrowing shall
be made upon the Company's irrevocable notice to the Administrative Agent, which
may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. on the requested date of any
Revolving Borrowing. Each telephonic notice by the Company pursuant to this
SECTION 2.03(a) must be confirmed promptly by delivery to the Administrative
Agent of a written Revolving Loan Notice, appropriately completed and signed by
a Responsible Officer of the Company. Each Revolving Borrowing shall be in a
principal amount of $100,000 or a whole multiple of $100,000 in excess thereof.
Each Revolving Loan Notice (whether telephonic or written) shall specify (i) the
requested date of the Revolving Borrowing (which shall be a Business Day), and
(ii) the principal amount of Revolving Loans to be borrowed.
(b) Following receipt of a Revolving Loan Notice, the Administrative
Agent shall promptly notify each Revolving Lender of the amount of its
Applicable Revolving Credit Percentage of the applicable Revolving Loans. In the
case of a Revolving Borrowing, each Revolving Lender shall make the amount of
its Revolving Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in SECTION 4.02 (and, if
such Revolving Borrowing is the initial Credit Extension, SECTION 4.01), the
Administrative Agent shall make all funds so received available to the Borrowers
in like funds as received by the Administrative Agent either by (i) crediting
the account of such Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by such Borrower; provided, however, that if, on the date the Revolving Loan
Notice with respect to such Borrowing is given by such Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Revolving Borrowing first,
shall be applied, to the payment in full of any such L/C Borrowings, and second,
shall be made available to such Borrower as provided above.
2.04 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other
Revolving Lenders set forth in this SECTION 2.04, (1) from time to
time on any Business Day during the period from the Closing Date until
the L/C Expiration Date, to issue Letters of Credit for the account of
the applicable Borrower, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the
Revolving Lenders severally agree to participate in Letters of Credit
issued for the account of any Borrower and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with
respect to any Letter of Credit, (x) the Total Revolving Credit
Outstandings shall not exceed the Aggregate Revolving Credit
Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Revolving Lender, plus such Revolving Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, shall not exceed such Revolving Lender's Revolving Credit
Commitment, or (z) the Outstanding Amount of the L/C Obligations shall
not exceed the L/C Sublimit. Each request by the Company for the
issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrowers that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the
terms and conditions hereof, each Borrower's ability to obtain Letters
of Credit shall be fully revolving, and accordingly any Borrower may,
during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and
reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last
extension, unless the Required Revolving Lenders have approved
such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the L/C Expiration Date, unless all the Revolving
Lenders have approved such expiry date.
(iii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $100,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) a default of any Revolving Lender's obligations to fund under
Section 2.04(c) exists or any Revolving Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrowers or such Revolving Lender
to eliminate the L/C Issuer's risk with respect to such Revolving
Lender; or
(F) unless specifically provided for in this Agreement, such
Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in Article IX with respect to any
acts taken or omissions suffered by the L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term "the
Administrative Agent" or "the Administrative Agent" as used in Article IX
included the L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Company delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a L/C Application,
appropriately completed and signed by a Responsible Officer of the Company.
Such L/C Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days
(or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such L/C
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such L/C Application shall specify in
form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the applicable
Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the L/C
Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any L/C Application at the address set
forth in SECTION 10.02 for receiving L/C Applications and related
correspondence, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a
copy of such L/C Application from the Company and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Revolving Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions in Article IV shall not then
be satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of such Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each Letter
of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Revolving Lender's Applicable Revolving Credit Percentage times the
amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
applicable Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(iv) If the Company so requests in any applicable L/C Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a
Letter of Credit that has automatic extension provisions (each, an
"AUTO-EXTENSION LETTER OF CREDIT"); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such extension
at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "NON-EXTENSION NOTICE DATE")
in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued. Unless otherwise directed by the L/C Issuer, the
Company shall not be required to make a specific request to the L/C Issuer
for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than the L/C Expiration Date;
provided, however, that the L/C Issuer shall not permit any such extension
if (A) the L/C Issuer has determined that it would not be permitted, or
would have no obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of SECTION 2.03(a) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension Notice
Date (1) from the Administrative Agent that the Required Revolving Lenders
have elected not to permit such extension or (2) from the Administrative
Agent, any Revolving Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and
in each such case directing the L/C Issuer not to permit such extension.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Company and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "HONOR DATE"), the Borrowers, jointly and
severally, shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing. If the Borrowers fail to
so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Revolving Lender of the Honor Date, the amount of the
unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount of such
Lender's Applicable Percentage thereof. In such event, the Borrowers shall
be deemed to have requested a Revolving Borrowing of Revolving Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Revolving Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Credit Commitments and the
conditions set forth in SECTION 4.02 (other than the delivery of a
Revolving Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this SECTION 2.04(c)(i) may be given by
telephone if immediately confirmed in writing; PROVIDED that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to SECTION
2.04(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer at the Administrative Agent's Office in an amount equal
to its Applicable Revolving Credit Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of SECTION
2.04(c)(iii), each Revolving Lender that so makes funds available shall be
deemed to have made a Revolving Loan to such Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Revolving Loans because the
conditions set forth in SECTION 4.02 cannot be satisfied or for any other
reason, such Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Revolving Lender's payment to the Administrative Agent for
the account of the L/C Issuer pursuant to SECTION 2.04(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Revolving Lender in satisfaction
of its participation obligation under this SECTION 2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C
Advance pursuant to this SECTION 2.04(c) to reimburse the L/C Issuer for
any amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Revolving Credit Percentage of such amount shall be
solely for the account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this SECTION 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the applicable Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each Revolving
Lender's obligation to make Revolving Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Company of a Revolving Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of such
Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Revolving Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in SECTION 2.04(c)(ii), the L/C Issuer shall
be entitled to recover from such Revolving Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
L/C issuer in accordance with banking industry rules on interbank
compensation, plus any the Administrative Agent, processing or similar fees
customarily charged by the LC/ Issuer in connection with the foregoing. A
certificate of the L/C Issuer submitted to any Revolving Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Lender such Lender's
L/C Advance in respect of such payment in accordance with SECTION 2.04(c),
if The Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the applicable Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative Agent),
the Administrative Agent will distribute to such Lender its Applicable
Revolving Credit Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to SECTION 2.04(c)(i) is required to be
returned under any of the circumstances described in SECTION 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Revolving Credit Percentage
thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender,
at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be joint and several, absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the any Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Borrower or any Subsidiary.
The applicable Borrower shall promptly examine a copy of each Letter
of Credit and each amendment thereto that is delivered to it and, in the event
of any claim of noncompliance with such Borrower's instructions or other
irregularity, such Borrower will immediately notify the L/C Issuer. The
Borrowers shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUER. Each Revolving Lender and each Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of Lenders or the Required Revolving Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED, HOWEVER, that this assumption is not intended to, and shall
not, preclude such Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of SECTION 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, a Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to such Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the L/C Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrowers shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. SECTIONS 2.05 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Revolving Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Revolving Lenders). Derivatives of such term have
corresponding meanings. Each Borrower hereby grants to the Administrative Agent,
for the benefit of the L/C Issuer and Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked, deposit accounts at
Bank of America and shall bear interest based upon investment of the cash
collateral as agreed between the Administrative Agent and the Company.
(h) APPLICABILITY OF ISP AND UCP. Unless otherwise expressly agreed by
the L/C Issuer and the applicable Borrower when a Letter of Credit is issued,
the rules of the ISP shall apply to each Letter of Credit.
(i) L/C FEES. The Borrowers shall, jointly and severally, pay to the
Administrative Agent for the account of each Revolving Lender in accordance with
its Applicable Revolving Credit Percentage a L/C fee (the "L/C FEE") for each
Letter of Credit equal to the Applicable Rate times the daily amount available
to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with SECTION 1.06. L/C Fees
shall be (i) computed on a quarterly basis in arrears and (ii) due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the L/C Expiration Date and thereafter on demand. If
there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein while any Event of Default exists, all L/C Fees shall
accrue at the Default Rate.
(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrowers shall, jointly and severally, pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter of Credit,
at the rate per annum agreed to between the L/C Issuer and the Company, computed
on the daily amount available to be drawn under such Letter of Credit and on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the
tenth Business Day after the end of each March, June, September and December, in
respect of the most recently-ended quarterly period (or portion thereof, in the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter
on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with SECTION 1.06. In addition, the Borrowers shall pay
directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such individual customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.
(k) CONFLICT WITH ISSUER DOCUMENTS. In the event of any conflict
between the terms hereof and the terms of any Issuer Documents, the terms hereof
shall control.
2.05 PREPAYMENTS.
(a) The Borrowers may, upon notice from the Company to the
Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans in whole or in part without premium or penalty; PROVIDED that
(i) such notice must be received by the Administrative Agent not later than
11:00 a.m. on the date of prepayment; and (ii) any prepayment of Revolving Loans
shall be in a principal amount of $100,000 or a whole multiple of $10,000 in
excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment. The Administrative Agent will promptly notify each Revolving Lender
of its receipt of each such notice, and of the amount of such Revolving Lender's
Applicable Revolving Credit Percentage of such prepayment. If such notice is
given by the Company, the Borrowers shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Each such prepayment shall be applied to the Revolving Loans of
Revolving Lenders in accordance with their respective Applicable Revolving
Credit Percentages.
(b) In addition to the required repayment of principal of the Term
Loan set forth in SECTION 2.07(b), the Borrowers may, upon irrevocable notice
from the Company to the Administrative Agent (it being agreed that such notice
may be conditioned upon the occurrence of a change of control, refinancing,
acquisition, disposition or similar event), voluntarily prepay the Term Loan in
whole or in part from time to time on any Business Day, without penalty or
premium; provided that (i) such notice must be received by the Administrative
Agent not later than 11:00 a.m. on the date of prepayment, (ii) any prepayment
of the Term Loan shall be in a principal amount of $100,000 or a whole multiple
of $10,000 in excess thereof (or in the entire remaining principal balance of
the Term Loan), and (iii) any such prepayment will be applied among the Term
Loan Lenders in accordance with their respective Applicable Term Loan
Percentages. Each such notice shall specify the date and amount of such
prepayment. A Responsible Officer of the Company shall provide the
Administrative Agent written confirmation of each such telephonic notice but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. The Administrative Agent will promptly notify each Term Loan
Lender of its receipt of each such notice, and such Term Loan Lender's pro rata
share of such prepayment. If such notice is given by the Company, the Borrowers
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. All prepayments of principal
under this SECTION 2.05(b) shall be applied to the scheduled installments of the
Term Loan in inverse order of maturity.
(c) If for any reason the Total Revolving Credit Outstandings at any
time exceed the Aggregate Revolving Credit Commitments then in effect, the
Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; PROVIDED, HOWEVER,
that the Borrowers shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(c) unless after the prepayment in full
of the Revolving Loans the Total Revolving Credit Outstandings exceed the
Aggregate Commitments then in effect.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrowers may, upon
notice from the Company to the Administrative Agent, terminate the Aggregate
Revolving Credit Commitments, or from time to time permanently reduce the
Aggregate Revolving Credit Commitments; PROVIDED that (i) any such notice shall
be received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of
$500,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce
the Aggregate Revolving Credit Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings
would exceed the Aggregate Revolving Credit Commitments, and (iv) if, after
giving effect to any reduction of the Aggregate Revolving Credit Commitments,
the L/C Sublimit exceeds the amount of the Aggregate Revolving Credit
Commitments, such sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Revolving Lenders of
any such notice of termination or reduction of the Aggregate Revolving Credit
Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall
be applied to the Revolving Credit Commitment of each Revolving Lender according
to its Applicable Revolving Credit Percentage. All fees accrued until the
effective date of any termination of the Aggregate Revolving Credit Commitments
shall be paid on the effective date of such termination.
2.07 REPAYMENT OF LOANS.
(a) The Borrowers shall repay to the Revolving Lenders on the
Revolving Credit Maturity Date the aggregate principal amount of Revolving Loans
outstanding on such date.
(b) The Borrowers shall repay the principal amount of the Term Loan
(together with all interest accrued as of such payment date on the principal
portion so repaid) on the dates (or, in the event that such date set forth below
is not a Business Day, on the immediately following Business Day) and, in each
case, in the respective amount set forth below, and the Borrowers shall repay
the Outstanding Amount of the Term Loan on the Term Loan Maturity Date.
------------------------------------------------- ----------------------
Date Amount
------------------------------------------------- ----------------------
Monthly, beginning on January 1, 2007 and $277,777.78
continuing on the first Business Day of each
month thereafter until the Term Loan
Maturity Date
------------------------------------------------- -----------------------
Term Loan Maturity Date The remaining
Outstanding Amount of
the Term Loan
------------------------------------------------- -----------------------
2.08 INTEREST.
(a) Each Loan shall bear interest at the LIBOR Monthly Floating Rate
plus the Applicable Rate; provided, however, that if any Lender determines that
any Law has made it unlawful, or that any Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make,
maintain or fund Loans with interest rates based upon the LIBOR Monthly Floating
Rate, as applicable, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the London interbank market, then, on notice thereof by
such Lender to the Company through the Administrative Agent, the rate on all
Loans shall be converted to the Prime Rate.
(b) While any Event of Default exists, the Borrowers shall pay
interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(c) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(d) Interest on each Loan shall be due and payable in arrears on the
first Business Day of each month and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i)
and (j) of SECTION 2.04:
(a) UNUSED FEE. The Borrowers shall pay to the Administrative Agent
for the account of each Revolving Lender in accordance with its Applicable
Revolving Credit Percentage, a fee (the "UNUSED FEE") equal to the Applicable
Rate times the actual daily amount by which the Aggregate Revolving Credit
Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and
(ii) the Outstanding Amount of L/C Obligations. The Unused Fee shall accrue at
all times during the Availability Period, including at any time during which one
or more of the conditions in ARTICLE IV is not met, and shall be due and payable
quarterly in arrears on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Revolving Credit Maturity Date. The Unused Fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(b) [RESERVED].
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year). Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, PROVIDED that any Loan
that is repaid on the same day on which it is made shall, subject to SECTION
2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
Lenders to the Borrowers and the interest and payments thereon. Any failure to
so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrowers hereunder to pay any amount owing with respect
to the Obligations. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrowers shall
execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.12 PAYMENTS GENERALLY; THE ADMINISTRATIVE AGENT'S CLAWBACK.
(a) (i) GENERAL. All payments to be made by the Borrowers shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 12:00 noon
on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Revolving Credit Percentage
or Applicable Term Loan Percentage (or other applicable share as
provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 12:00 noon shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrowers shall
come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(ii) On each date when the payment of any principal, interest or
fees are due hereunder or under any Note, the Borrowers agree to
maintain on deposit in an ordinary checking account maintained by the
Company with the Administrative Agent (as such account shall be
designated by the Company in a written notice to the Administrative
Agent from time to time, the "BORROWERS ACCOUNT") an amount sufficient
to pay such principal, interest or fees in full on such date. The
Borrowers hereby authorizes the Administrative Agent (A) to deduct
automatically all principal, interest or fees when due hereunder or
under any Note from the Borrowers Account, and (B) if and to the
extent any payment of principal, interest or fees under this Agreement
or any Note is not made when due to deduct any such amount from any or
all of the accounts of the Borrowers maintained with the
Administrative Agent. The Administrative Agent agrees to provide
written notice to the Company of any automatic deduction made pursuant
to this Section 2.12(a)(ii) showing in reasonable detail the amounts
of such deduction. The Revolving Lenders and the Term Loan Lenders
agree to reimburse the Borrowers based on their Applicable Revolving
Credit Percentage and Applicable Term Loan Percentage, respectively,
for any amounts deducted from such accounts in excess of amount due
hereunder and under any other Loan Documents.
(b) (i) FUNDING BY LENDERS; PRESUMPTION BY THE ADMINISTRATIVE
AGENT. Unless the Administrative Agent shall have received notice from
a Lender prior to 12:00 noon on the date of a Borrowing that such
Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in
accordance with Section 2.03 and may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. In
such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrowers severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrowers
to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation, plus any the Administrative Agent, processing or similar
fees customarily charged by the Administrative Agent in connection
with the foregoing and (B) in the case of a payment to be made by the
Borrowers, the interest rate applicable to Loans. If the Borrowers and
such Lender shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrowers the amount of such interest paid by
the Borrowers for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender's Revolving Loan or Applicable Term
Loan Percentage of the Term Loan included in such Borrowing. Any
payment by the Borrowers shall be without prejudice to any claim the
Borrowers may have against a Lender that shall have failed to make
such payment to the Administrative Agent.
(ii) PAYMENTS BY BORROWERS; PRESUMPTIONS BY THE ADMINISTRATIVE
AGENT. Unless the Administrative Agent shall have received notice from
the Borrowers prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrowers will not make such payment, the
Administrative Agent may assume that the Borrowers has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if the Borrowers have not
in fact made such payment, then each of the Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or
the L/C Issuer, in immediately available funds with interest thereon,
for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent,
at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation. A notice of the Administrative Agent to any
Lender or the Company with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest error.
(c) FAILURE TO SATISFY CONDITIONS PRECEDENT. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this ARTICLE II, and such
funds are not made available to the Borrowers by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) OBLIGATIONS OF LENDERS SEVERAL. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters and to make payments
under SECTION 10.04(c) are several and not joint. The failure of any Lender to
make any Loan, to fund any such participation or to make any payment under
SECTION 10.04(c) on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its Loan,
purchase its participation or to make its payment under Section 10.04(c):
(e) FUNDING SOURCE. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 SHARING OF 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 the Loans made by it, or the participations
in L/C Obligations held by it resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) as applicable, purchase (for cash at
face value) participations in the applicable Revolving Loans and
subparticipations in L/C Obligations of the other Revolving Lenders, or purchase
(for cash at face value) participations in the portions of the Term Loan held by
the other Term Loan Lenders, or make such other adjustments as shall be
equitable, 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 applicable Loans and other amounts owing
them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery,
without interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrowers pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C
Obligations to any assignee or participant, other than to a Borrower
or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 DESIGNATED CO-BORROWERS; JOINT AND SEVERAL LIABILITY; BORROWERS'
WAIVERS AND CONSENTS; AGENCY OF THE COMPANY. (a) Effective as of the date hereof
the Company and each Domestic Subsidiary listed on SCHEDULE 1.01 shall each be a
"Designated Co-Borrower" hereunder and may receive Loans for its account on the
terms and conditions set forth in this Agreement.
(b) the Company may at any time, upon not less than 10 Business Days'
notice from the Company to the Administrative Agent (or such shorter period as
may be agreed by the Administrative Agent in its sole discretion), designate any
Domestic Subsidiary of the Company (other than Screening) (an "APPLICANT
BORROWER") as a Designated Co-Borrower to receive Loans hereunder by delivering
to the Administrative Agent (which shall promptly deliver counterparts thereof
to each Lender) a duly executed notice and agreement in substantially the form
of Exhibit E (a "DESIGNATED CO-BORROWER REQUEST AND ASSUMPTION AGREEMENT")
executed by the Company and the applicable Applicant Borrower. The parties
hereto acknowledge and agree that prior to any Applicant Borrower becoming
entitled to utilize the credit facilities provided for herein the Administrative
Agent and the Lenders shall have received such joinder agreements, supporting
resolutions, incumbency certificates, opinions of counsel and other documents or
information, in form, content and scope reasonably satisfactory to the
Administrative Agent, as may be reasonably required by the Administrative Agent
or the Required Lenders, and Notes signed by such new Designated Co-Borrowers to
the extent any Lenders so require. An Applicant Borrower shall be entitled to
receive Loans hereunder, promptly upon receipt by the Administrative Agent or
the Required Lenders, as the case may be, of all such requested resolutions,
incumbency certificates, opinions of counsel and other documents or information,
and the Administrative Agent shall send a notice in substantially the form of
Exhibit F (a "DESIGNATED BORROWER NOTICE") to the Company and the Lenders
specifying the effective date upon which the Applicant Borrower shall constitute
a Designated Co-Borrower for purposes hereof, which effective date shall be no
later than the fifth Business Day after the Applicant Borrower has provided all
the documents required by this Section 2.14(b), whereupon each of the Lenders
agrees to permit such Designated Co-Borrower to receive Loans hereunder, on the
terms and conditions set forth herein, and each of the parties agrees that such
Designated Co-Borrower otherwise shall be a Borrower for all purposes of this
Agreement; provided that no Committed Loan Notice or Letter of Credit
Application may be submitted by or on behalf of such Designated Co-Borrower
until the date five Business Days after such effective date.
(c) Notwithstanding any other provision of this Agreement, each
Borrower shall be jointly and severally liable as a primary obligor, and not
merely as surety, for any and all Obligations now or hereafter owed to the
Administrative Agent, the L/C Issuer and the Lenders, whether voluntary or
involuntary and however arising, whether direct or acquired by any Lender by
assignment or succession, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether any Borrower
or Borrowers may be liable individually or jointly with others, or whether
recovery upon such Obligations may be or hereafter become barred by any statute
of limitations, or whether such Obligations may be or hereafter become otherwise
unenforceable (such Obligations, the "BORROWERS' LIABILITIES"). For valuable
consideration, each Borrower unconditionally guarantees and promises to pay to
the Administrative Agent, on behalf of itself and the Lenders, on demand, in
lawful money of the United States, any and all of the Borrowers' Liabilities.
Notwithstanding the foregoing, the liability of each Borrower individually with
respect to its Borrowers' Liabilities shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law. This is a guaranty of
payment and not of collection.
(d) The guaranty of each Borrower hereunder shall be a continuing
guaranty relating to any Borrowers' Liabilities, including those arising under
successive transactions which shall either continue Obligations or from time to
time renew any Obligations after such Obligations shall have been satisfied. Any
payment by any of the Borrowers shall not reduce the Borrowers' maximum
obligation hereunder.
(e) The Obligations of each Borrower are independent, and a separate
action or actions may be brought and prosecuted against a Borrower whether
action is brought against any other Borrower or whether any other Borrower is
joined in any such action or actions; and each Borrower waives the benefit of
any statute of limitations affecting its liability hereunder.
(f) Each Borrower agrees that neither the Administrative Agent nor any
Lender shall have any responsibility to inquire into the apportionment,
allocation or disposition of the proceeds of any Credit Extension as among the
Borrowers, and acknowledges that its liability hereunder shall not be reduced or
diminished by the identity of such Borrower giving or receiving of notices and
other communications, making requests for, or effecting conversions or
continuations of, Loans or Letters of Credit, executing and delivering
certificates, or receiving or allocating disbursements from the Lenders. Each
Borrower acknowledges that the handling of this credit facility on a joint
borrowing basis as set forth in this Agreement is solely an accommodation to
Borrowers and is done at their request. Each Borrower agrees that no Lender
shall incur any liability to such Borrower as a result of such accommodation.
(g) Each Borrower represents and warrants to the Administrative Agent
and the Lenders that the request for joint handling of the Loans, L/C
Obligations and other Obligations made hereunder was made because the Borrowers
are engaged in related operations and are interdependent. Each Borrower expects
to derive benefit, directly or indirectly, from such availability because the
successful operation of Borrowers is dependent on the continued successful
performance of the functions of the Borrowers as a group.
(h) Each Borrower represents and warrants to the Administrative Agent
and the Lenders that (i) it has established adequate means of obtaining from
each other Borrower on a continuing basis financial and other information
pertaining to the business, operations and condition (financial and otherwise)
of each other Borrower and its respective property, and (ii) it now is and
hereafter will be completely familiar with the business, operations and
condition (financial and otherwise) of each other Borrower, and its property.
Each Borrower hereby waives and relinquishes any duty on the part of the
Administrative Agent to disclose to such Borrower any matter, fact or thing
relating to the business, operations or condition (financial or otherwise) of
any other Borrower, or the property of any other Borrower, whether now or
hereafter known by the Administrative Agent or any Lender during the life of
this Agreement.
(i) Each Borrower expressly waives any right to require the
Administrative Agent and the Lenders to marshal assets in favor of any Borrower
or any other Person or to proceed against any other Borrower or any other Person
or any collateral provided by any other Borrower or any other Person, and agrees
that the Administrative Agent and the Lenders may proceed against any Borrower
and/or collateral in such order as they shall determine in their sole and
absolute discretion. The Administrative Agent and the Lenders may file a
separate action or actions against any Borrower, whether action is brought or
prosecuted with respect to any other security or against any other Person, or
whether any other Person is joined in any such action or actions. Each Borrower
agrees that the Administrative Agent and the Lenders and any other Borrower may
deal with each other in connection with the Obligations, the Borrowers'
Liabilities or otherwise, or alter any contracts or agreements now or hereafter
existing between any of them, in any manner whatsoever, all without in any way
altering or affecting the obligations of such Borrower under the Loan Documents.
(j) Each Borrower expressly waives any and all defenses now or
hereafter arising or asserted by reason of (i) any disability or other defense
of any other Borrower, any Guarantor or any other Person with respect to any
Obligations, (ii) the unenforceability or invalidity as to any other Borrower,
any Guarantor or any other Person of the Obligations, (iii) the unenforceability
or invalidity of any security or guaranty for the Obligations or the lack of
perfection or continuing perfection or failure of priority of any security for
the Obligations, (iv) the cessation for any cause whatsoever of the liability of
any Borrower, any Guarantor or any other Person (other than by reason of the
full payment and performance of all Obligations), (v) to the extent permitted by
law, any failure of the Administrative Agent and the Lenders to give notice of
sale or other disposition to any Borrower, any Guarantor or any other Person or
any defect in any notice that may be given in connection with any sale or
disposition, (vi) to the extent permitted by law, any failure of the
Administrative Agent and the Lenders to comply with applicable laws in
connection with the sale or other disposition of any collateral or other
security for any Obligation, including without limitation any failure of the
Administrative Agent and the Lenders to conduct a commercially reasonable sale
or other disposition of any collateral or other security for any obligation,
(vii) any act or omission of the Administrative Agent and the Lenders, that
directly or indirectly results in or aids the discharge or release of any
Borrower or any Guarantor or the Obligations or any other security or guaranty
therefor by operation of law or otherwise, (viii) any Law which provides that
the obligation of a surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or which reduces a
surety's or guarantor's obligation in proportion to the principal obligation,
(ix) any failure of the Administrative Agent and the Lenders to file or enforce
a claim in any bankruptcy or other proceeding with respect to any other
Borrower, any Guarantor or any other Person, (x) the election by the
Administrative Agent and the Lenders, in any bankruptcy proceeding of any other
Borrower or any Guarantor, of the application or non-application of Section
1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or
the grant of any Lien under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code in
connection with the bankruptcy of any other Borrower or any Guarantor, (xii) any
use of cash collateral under Section 363 of the United States Bankruptcy Code,
or (xiii) any agreement or stipulation with any other Borrower or any Guarantor
with respect to the provision of adequate protection in any bankruptcy
proceeding of any Person.
(k) Notwithstanding anything to the contrary elsewhere contained
herein or in any other Loan Document to which any Borrower is a party, each
Borrower hereby waives, so long as any Lender shall have any Revolving Credit
Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid
or unsatisfied or any Letter of Credit shall remain outstanding, with respect to
each other Borrower and its successors and assigns (including any surety) and
any other party any and all rights at law or in equity, to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker, to an accommodation party against the party accommodated, or to a holder
or transferee against a maker and which any Borrower may have or hereafter
acquire against any other Borrower or any other Person in connection with or as
a result of the execution, delivery and/or performance of this Agreement or any
other Loan Document. Each Borrower agrees that, so long as any Lender shall have
any Revolving Credit Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding, it shall not have or assert any such rights against any
other Borrower or its successors and assigns or any other party (including any
surety), either directly or as an attempted setoff to any action commenced
against any Borrower by another Borrower (as borrower or in any other capacity)
or any other party. Each Borrower hereby acknowledges and agrees that this
waiver is intended to benefit the Administrative Agent and the Lenders and shall
not limit or otherwise affect Borrowers' liability hereunder, under any other
Loan Document to which any Borrower is a party, or the enforceability hereof or
thereof.
(l) Any obligations of any Borrower or any Guarantor to any other
Borrower, now or hereafter existing, including but not limited to any
obligations to a Borrower or a Guarantor as subrogee of the Administrative Agent
and the Lenders or resulting from a Borrower's performance under this guaranty,
are hereby subordinated to the Borrowers' Liabilities. Such obligations of a
Borrower or a Guarantor to another Borrower, if the Administrative Agent so
requests, shall be enforced, and performance received by such Borrower or such
Guarantor as trustee for the Administrative Agent and the Lenders, and the
proceeds thereof shall be paid over to the Administrative Agent for the benefit
of the Administrative Agent and the Lenders on account of the Obligations of
Borrowers to the Administrative Agent and the Lenders, but without reducing or
affecting in any manner the liability of any Borrower under the other provisions
of the guaranty contained herein.
(m) Each Borrower irrevocably appoints the Company as its agent for
all purposes relevant to this Agreement and each of the other Loan Documents,
including (i) the giving and receipt of notices, (ii) the execution and delivery
of all documents, instruments and certificates contemplated herein and all
modifications hereto (excluding the execution and delivery of this Agreement or
any other Loan Document entered into on the Closing Date, any Designated
Co-Borrower Request and Assumption Agreement, and any joinder agreement), and
(iii) the receipt of the proceeds of any Loans made by the Lenders, to Borrowers
hereunder. Any acknowledgment, consent, direction, certification or other action
which might otherwise be valid or effective only if given or taken by all
Borrowers, or by each Borrower acting singly, shall be valid and effective if
given or taken only by the Company, whether or not any such other Borrower joins
therein. Any notice, demand, consent, acknowledgement, direction, certification
or other communication delivered to the Company in accordance with the terms of
this Agreement or any other Loan Document shall be deemed to have been delivered
to each Borrower.
(n) Notwithstanding anything to the contrary contained herein, to the
extent this Agreement requires payment of an amount by "each Borrower", "the
Borrowers" or "a Borrower", such payment shall be made by the Borrowers without
duplication.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by the Borrowers to
or on account of any obligation of the Borrowers hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the
Borrowers shall be required by any applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section),
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, and (iii) the Borrowers shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY BORROWERS. Without limiting the
provisions of subsection (a) above, the Borrowers shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) INDEMNIFICATION BY BORROWERS. The Borrowers shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Company by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority, the
Borrowers shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) STATUS OF LENDERS. Any Lender, if requested by a Borrower or the
Administrative Agent, shall deliver such documentation prescribed by applicable
law or reasonably requested by such Borrower or the Administrative Agent as will
enable such Borrower or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements.
(f) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by a Borrower or with respect to which a Borrower has paid
additional amounts pursuant to this Section, it shall pay to such Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by such Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that such
Borrower, upon the request of the Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to any Borrower or any other Person.
3.02 [RESERVED].
3.03 [RESERVED].
3.04 INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement reflected in the LIBOR Monthly Floating Rate) or the L/C
Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any participation in any Loan,
or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by SECTION 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or the L/C Issuer);
or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or the Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrowers will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Revolving Credit Commitments of such Lender or the Loans
made by, or participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by the L/C Issuer, to a level below that which such
Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the L/C Issuer's policies and the policies of such Lender's or the
L/C Issuer's holding company with respect to capital adequacy), then from time
to time the Borrowers will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender's or the L/C Issuer's holding company for any such
reduction suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or the
L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to the Company
shall be conclusive absent manifest error. The Borrowers shall pay such Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) DELAY IN REQUESTS. Each Lender and the L/C Issuer shall promptly
notify the Borrowers of any event occurring after the Closing Date entitling the
Lender or the L/C Issuer to compensation under any of the preceding subsections,
but no failure or delay on the part of any Lender or the L/C Issuer to issue
such a notice shall constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, provided that the Borrowers shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, becomes aware of the Change in Law giving rise to
such increased costs or reductions (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, and the Lender or the
L/C Issuer has given notice thereof to the Borrowers within such nine month
period, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.05 MITIGATION OBLIGATIONS. If any Lender requests compensation under
SECTION 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
SECTION 3.01, or if any Lender gives a notice pursuant to Section 3.02, then
such Lender shall use reasonable efforts to designate a different Lending Office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to SECTION 3.01 or 3.04, as the case may be,
in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
Upon any Lender's or the L/C Issuers' request for compensation or reimbursement
under this Article III, the Company may cause such Lender or the L/C Issuer to
be removed as a Lender or the L/C Issuer and replaced in accordance with the
terms of this Agreement pertaining to a resignation of such Person.
3.06 SURVIVAL. All of each Borrower's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (or other electronic form, in any case followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Administrative
Agent and each of the Lenders:
(i) executed counterparts of this Agreement and all Collateral
Documents sufficient in number for distribution to the Administrative
Agent, each Lender and the Company;
(ii) a Revolving Note executed by each Borrower in favor of each
Revolving Lender requesting a Revolving Note;
(iii) a Term Loan Note executed by each Borrower in favor of each
Term Loan Lender requesting a Term Loan Note;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of a Responsible Officer of
each Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(v) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each Loan Party is validly existing, in
good standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct
of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(vi) a favorable opinion of counsel to the Loan Parties
acceptable to the Administrative Agent addressed to the Administrative
Agent and each Lender, as to the matters set forth concerning the Loan
Parties and the Loan Documents in form and substance satisfactory to
the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the
Company certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (C)
no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of any Loan Party after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company, any
other Borrower or any of their respective Subsidiaries or against any
of their properties or revenues that (i) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (ii) except as specifically
disclosed in Schedule 5.06, either individually or in the aggregate,
if determined adversely, could reasonably be expected to have a
Material Adverse Effect, and there has been no adverse change in the
status, or financial effect on any Loan Party or any Subsidiary
thereof, of the matters described on Schedule 5.06;
(ix) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that the Administrative Agent, for the benefit of
the Lenders, holds a perfected, first priority Lien in the Collateral
(subject to no other Liens except Permitted Liens);
(xi) a duly completed Compliance Certificate as of March 31, 2006
(giving pro forma effect to the Transaction), signed by a Responsible
Officer of the Company;
(xii) evidence that all commitments under the Existing Credit
Agreement have been or concurrently with the Closing Date are being
terminated, and all outstanding amounts thereunder paid in full and
all Liens securing obligations under the Existing Credit Agreement
have been or concurrently with the Closing Date are being released;
(xiii) a certificate of a Responsible Officer of the Company
certifying that (i) prior to the effectiveness of this Agreement, the
Articles of Merger with respect to the Transaction have been submitted
for review to the Secretary of State of the State of Illinois and now
reflect any comments received as a result of such review, (ii)
contemporaneously with and immediately upon the effectiveness of this
Agreement the Transaction will have been consummated in accordance
with the terms of the Transaction Documents (subject to the
Acceptance), (iii) all conditions to closing set forth in the Merger
Agreement applicable to the sellers thereunder have been satisfied,
(iv) subject to the Acceptance, CMSI will be a Borrower under this
Agreement, a Grantor under the Security Agreement, and otherwise will
constitute a Loan Party without further action by the Company, CMSI,
the Administrative Agent, the Lenders or the L/C Issuer; and (v) the
Company has provided the Administrative Agent with duly executed
copies of the Transaction Documents;
(xiv) (A) the consolidated and consolidating balance sheet of the
Company and its Subsidiaries dated July 1, 2006 and related
consolidated and consolidating statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter, each
calculated on PRO FORMA basis after giving effect to the Transaction,
and (B) quarterly financial forecasts of the Company and its
Subsidiaries, on a consolidated and consolidating basis, prepared by
management of the Company including balance sheets and related
statements of income or operations, shareholders' equity and cash
flows for the next four fiscal quarters of the Company succeeding the
Closing Date;
(xv) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, or the Required
Lenders reasonably may require.
(b) All fees required to be paid on or before the Closing Date shall
have been paid, including, without limitation, any upfront fees.
(c) Unless waived by the Administrative Agent, the Borrowers shall
have paid all fees, charges and disbursements of counsel to the Administrative
Agent (including such fees, charges and disbursements of ▇▇▇▇▇, Mulliss & Wicker
PLLC) to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute
its reasonable estimate of such fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrowers
and the Administrative Agent).
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension is subject to the following
conditions precedent:
(a) The representations and warranties of the Company and each other
Loan Party contained in ARTICLE V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall
have received a Request for Credit Extension in accordance with the requirements
hereof.
(d) With respect to a Revolving Borrowing or an issuance of a Letter
of Credit, the Acceptance shall have occurred.
(e) The Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Request for Credit Extension submitted by the Company shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. Other than a filing
on SEC Form 8K with respect to the Transaction, no approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; No Material Adverse Effect; No Internal
Control Event. (a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present in all material
respects the financial condition of the Company and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Company and its
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.
(b) The unaudited consolidated and consolidating balance sheets of the
Company and its Subsidiaries dated March 31, 2006, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
(d) To the best knowledge of the Company, no Internal Control Event
exists or has occurred since the date of the Audited Financial Statements that
has resulted in or could reasonably be expected to result in a misstatement in
any material respect, in any financial information delivered or to be delivered
to the Administrative Agent or the Lenders, of (i) covenant compliance
calculations provided hereunder or (ii) the assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries on a
consolidated basis.
(e) The consolidated and consolidating pro forma balance sheets of the
Company and its Subsidiaries as at July 1, 2006 after giving effect to the
Transaction, and the related consolidated and consolidating pro forma statements
of income and cash flows of the Company and its Subsidiaries for the three
months then ended, certified by the chief financial officer of the Company,
copies of which have been furnished to each Lender as of the Closing Date,
fairly present in all material respects the consolidated and consolidating pro
forma financial condition of Company and its Subsidiaries as at such date and
the consolidated and consolidating pro forma results of operations of the
Company and its Subsidiaries for the period ended on such date, all in
accordance with GAAP.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Company after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions (including consummation of the Transaction) contemplated hereby, or
(b) except as specifically disclosed in SCHEDULE 5.06, either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect, and there has been no adverse change in the status, or
financial effect on any Loan Party or any Subsidiary thereof, of the matters
described on SCHEDULE 5.06.
5.07 NO DEFAULT. Neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Company and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Company and its Subsidiaries is subject to
no Liens, other than Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. Except as specifically disclosed in
Schedule 5.09, the Company is not aware of any violation of any existing
Environmental Laws by the Company or any of its Subsidiaries that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.10 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or the applicable
Subsidiary operates.
5.11 TAXES. The Company and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary (giving effect to the
Transaction) that would, if made, have a Material Adverse Effect.
5.12 ERISA COMPLIANCE. (a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter (or opinion letter as a
prototype plan) from the IRS or an application for such a letter is currently
being processed by the IRS with respect thereto and, to the best knowledge of
the Company, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Company, CMSI and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Company, CMSI nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Company, CMSI nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Company, CMSI nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date and giving effect to the
Transaction, the Company has no Subsidiaries other than those specifically
disclosed in Part (a) of SCHEDULE 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by a Loan Party in the amounts specified on Part (a)
of SCHEDULE 5.13 free and clear of all Liens. The Company has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part(b) of SCHEDULE 5.13. All of the outstanding Equity Interests
in the Company have been validly issued and are fully paid and nonassessable.
5.14 MARGIN REGULATIONS; Investment Company Act; Public Utility
Holding Company Act. (a) No Borrower is engaged in and will not engage,
principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB),
or extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Company only or of the Company and its Subsidiaries on a consolidated basis)
subject to the provisions of SECTION 7.01 or SECTION 7.05 or subject to any
restriction contained in any agreement or instrument between the Company and any
Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 8.01(e) will be margin stock.
(b) None of the Company, any Person Controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Company has disclosed to the Administrative Agent
and Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrowers represent only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of the Company and each Subsidiary
(giving effect to Transaction) is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Company, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
5.18 RIGHTS IN COLLATERAL; PRIORITY OF LIENS. Each Grantor owns the
property granted by it as Collateral under the Collateral Documents, free and
clear of any and all Liens in favor of third parties, except Permitted Liens.
Upon the proper filing of UCC financing statements, and the taking of the other
actions required by the Required Lenders, the Liens granted pursuant to the
Collateral Documents will constitute valid and enforceable first, prior and
perfected Liens on the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Administrative Agent and Lenders.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company
shall, and shall (except in the case of the covenants set forth in SECTIONS
6.01, 6.02, and 6.03) cause each Subsidiary (other than Screening) to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent a
sufficient number of copies for delivery by the Administrative Agent to each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company (or if earlier, 15 days after the date
required to be filed with the SEC (without giving effect to any extension
permitted by the SEC)), a consolidated and consolidating balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year, and the related
consolidated and consolidating statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by (i) a
report and opinion of Deloitte & Touche or such other Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any "going
concern" or like qualification or exception or any qualification or exception as
to the scope of such audit and (ii) an attestation report of Deloitte & Touche
or such other Registered Public Accounting Firm independently assessing the
Borrower's internal controls over financial reporting in accordance with Item
308 of SEC Regulation S-K, PCAOB Auditing Standard ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇ expressing a conclusion that contains no statement that there is
a material weakness in such internal controls, except for such material
weaknesses as are being addressed by the Borrowers in a manner reasonably
acceptable to the Required Lenders, and such consolidating statements to be
certified by a Responsible Officer of the Company to the effect that such
statements are fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Company and its
Subsidiaries;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Company (or if earlier, five Business Days after the date required to be filed
with the SEC (without giving effect to any extension permitted by the SEC)), a
consolidated and consolidating balance sheet of the Company and its Subsidiaries
as at the end of such fiscal quarter, and the related consolidated and
consolidating statements of income or operations, shareholders' equity and cash
flows for such fiscal quarter and for the portion of the Company's fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, certified by a
Responsible Officer of the Company as fairly presenting the financial condition,
results of operations, shareholders' equity and cash flows of the Company and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes and such consolidating statements to be
certified by a Responsible Officer of the Company to the effect that such
statements are fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Company and its
Subsidiaries; and
(c) as soon as available, but in any event at least 60 days after the
end of each fiscal year of the Company, forecasts prepared by management of the
Company, in form satisfactory to the Administrative Agent and the Required
Lenders, of consolidated balance sheets and statements of income or operations
and Consolidated Cash Flows of the Company and its Subsidiaries on a monthly
basis for the immediately following fiscal year (including the fiscal year in
which the Maturity Date occurs).
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent a sufficient number of copies for delivery by the Administrative Agent to
each Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in SECTION 6.01(a), a certificate of Deloitte & Touche or such other
Registered Public Accounting Firm of nationally recognized standing reasonably
acceptable to the Required Lenders certifying such financial statements and
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or, if any such Default shall exist, stating the nature
and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in SECTIONS 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Company;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of the Company by independent accountants in connection
with the accounts or books of the Company or any Subsidiary, or any audit of any
of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Company, and copies of all annual, regular, periodic and
special reports and registration statements which the Company may file or be
required to file with the SEC under SECTION 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrowers post such documents, or provide a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrowers' behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrowers shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrowers to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrowers shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the Compliance
Certificates required by SECTION 6.02(b) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrowers with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of
such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent
and/or any arranger (as applicable to either Credit Facility) will make
available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of such Borrower hereunder (collectively, "BORROWER
MATERIALS") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "PLATFORM") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to Borrower or its securities) (each, a
"Public Lender"). Each Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC," the Borrowers shall be deemed to have authorized
the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
each Borrower or its securities for purposes of United States Federal and state
securities laws (PROVIDED, HOWEVER, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in SECTION 10.06);
(y) all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor.
6.03 NOTICES. Promptly after obtaining knowledge thereof, notify the
Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Company or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between
the Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by the Company or any Subsidiary or any change in GAAP that
would affect the computation of any financial ratio or requirement hereunder;
and
(e) of the determination by Deloitte & Touche or such other Registered
Public Accounting Firm providing the opinion required under Section 6.01(a)(ii)
(in connection with its preparation of such opinion) or the Company's
determination at any time of the occurrence or existence occurrence of any
Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken and
proposes to take with respect thereto. Each notice pursuant to SECTION 6.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, unless the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the
Company or such Subsidiary.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain
in full force and effect its legal existence under the Laws of the jurisdiction
of its organization except in a transaction permitted by SECTION 7.04 or 7.05;
(b) preserve, renew and maintain in full force and effect its good standing
under the Laws of the jurisdiction of its organization, except to the extent
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect; (c) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (d) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Company, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30
days' prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (i) such requirement of Law or order, write, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (ii)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company or such Subsidiary, as the case
may be; and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrowers and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; PROVIDED, HOWEVER, that when an Event
of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrowers at any time during normal business
hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
(i) working capital, capital expenditures and other general corporate purposes
not in contravention of any Law or of any Loan Document, and (ii) to finance the
Transaction and other Permitted Acquisitions, and (iii) repayment and discharge
of all obligations outstanding under the Existing Credit Agreement.
6.12 FINANCIAL COVENANTS.
(a) TANGIBLE NET WORTH. Maintain at all times Consolidated Tangible
Net Worth equal to at least the sum of the following:
(i) Twenty-Five Million Dollars ($25,000,000); plus
(ii) the sum of 50% of net income after income taxes (without
subtracting losses) earned in each quarterly accounting period
commencing after June 30, 2006; plus
(iii) the net proceeds from any Equity Interests issued by the
Company or any of its Subsidiaries after the date of this Agreement;
plus
(iv) any increase in stockholders' equity resulting from the
conversion of debt securities to equity securities after the date of
this Agreement.
(b) CONSOLIDATED LEVERAGE RATIO. Maintain a Consolidated Leverage
Ratio not to exceed 2.50 to 1.00. The Consolidated Leverage Ratio will be
calculated at the end of each reporting period for which this Agreement requires
the Company to deliver financial statements, using the results of the
twelve-month period ending with that reporting period.
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Maintain a Consolidated
Fixed Charge Coverage Ratio of at least 1.25 to 1.00. The Consolidated Fixed
Charge Coverage Ratio will be calculated at the end of each reporting period for
which this Agreement requires the Company to deliver financial statements, using
the results of the twelve-month period ending with that reporting period. With
respect to the definition of Consolidated Fixed Charges used in calculating the
Consolidated Fixed Charge Coverage Ratio, the current portion of long-term debt
will be measured as of the last day of the calculation period.
6.13 ADDITIONAL SUBSIDIARIES. Notify the Administrative Agent at the
time that any Person becomes a Subsidiary, and promptly thereafter (and in any
event within 30 days), cause such Person to (a) if such Subsidiary is a Domestic
Subsidiary, (1) deliver to the Administrative Agent a Designated Co-Borrower
Request and Assumption Agreement duly executed by such Domestic Subsidiary, (2)
become a Grantor under the Security Agreement by executing and delivering a
joinder agreement with respect thereto, and (3) if such Subsidiary owns any
Equity Interests in any Person, become a Grantor under the Pledge Agreement by
executing and delivering a joinder agreement with respect thereto; (b) if such
Subsidiary is a Foreign Subsidiary, to the extent required by the Required
Lenders, become a Guarantor by executing and delivering to the Administrative
Agent the Guaranty or a joinder thereto, or such other document as the
Administrative Agent shall deem appropriate for such purpose; (c) execute and
deliver such other documents as the Administrative Agent shall deem appropriate
in connection with subsections (a) and (b); and (d) deliver to the
Administrative Agent documents of the types referred to in clauses (iv) and (v)
of Section 4.01(a) and favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form,
content and scope reasonably satisfactory to the Administrative Agent.
6.14 COLLATERAL RECORDS. To execute and deliver promptly, and to cause
each other Grantor to execute and deliver promptly, to the Administrative Agent,
from time to time, solely for the Administrative Agent's convenience in
maintaining a record of the Collateral, such written statements and schedules as
the Administrative Agent may reasonably require designating, identifying or
describing the Collateral. The failure by any Borrower or any other Grantor,
however, to promptly give the Administrative Agent such statements or schedules
shall not affect, diminish, modify or otherwise limit the Liens on the
Collateral granted pursuant to the Collateral Documents.
6.15 SECURITY INTERESTS. To (a) defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein, (b) comply with the requirements of all state and Federal laws in order
to grant to the Administrative Agent and Lenders valid and perfected first
priority security interests in the Collateral, with perfection, in the case of
any investment property, deposit account or letter of credit, being effected by
giving the Administrative Agent control of such investment property or deposit
account or letter of credit, rather than by the filing of a Uniform Commercial
Code ("UCC") financing statement with respect to such investment property, and
(c) do whatever the Administrative Agent may reasonably request, from time to
time, to effect the purposes of this Agreement and the other Loan Documents,
including filing notices of liens, UCC financing statements, fixture filings and
amendments, renewals and continuations thereof; cooperating with the
Administrative Agent's representatives; keeping stock records; obtaining waivers
from landlords and mortgagees and from warehousemen and their landlords and
mortgages; and, paying claims which might, if unpaid, become a Lien on the
Collateral. The Administrative Agent is hereby authorized by each Borrower to
file any UCC financing statements covering the Collateral whether or not such
Borrower's signatures appear thereon.
6.16 BANK ACCOUNTS. Cause each Borrower's primary bank accounts to be
maintained with Bank of America; PROVIDED that, to the extent any Borrower's
primary bank accounts are not so maintained as of the Closing Date, such
Borrower shall have 180 days after the Closing Date to transfer any such bank
accounts to Bank of America. Notwithstanding the foregoing, the Company may
maintain one depository account with Citibank, N.A.
6.17 CONDITIONS SUBSEQUENT. The Borrowers shall diligently pursue and
cause to be delivered to the Administrative Agent or otherwise consummated those
items listed on Schedule 6.17 within the respective time periods set forth
therein.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall
not, nor shall it permit any Subsidiary (other than Screening) to, directly or
indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following (each of the following being a "Permitted Lien"):
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on SCHEDULE 7.01 and
any renewals or extensions thereof, PROVIDED that (i) the property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased, (iii) the direct or any contingent obligor with respect thereto is
not changed, and (iv) and any renewal or extension of the obligations secured or
benefited thereby is permitted by SECTION 7.03(b);
(c) Liens for taxes, assessments, or governmental charges or levies
not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;
(d) contractual Liens of landlords which secure amounts not yet due
and payable and which are limited to tangible personal property;
(e) statutory liens of landlords and carriers, warehousemen,
mechanics, materialmen, repairmen, supplier or other like Liens arising in the
ordinary course of business which secure amounts that are not overdue for a
period of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
(f) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(g) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(i) Liens securing judgments for the payment of money not constituting
an Event of Default under SECTION 8.01(h);
(j) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(k) Liens deemed to exist in connection with Investments in repurchase
agreements permitted hereunder;
(l) leases or subleases granted to others not interfering in any
material respect with a Borrower's business;
(m) Liens on the interest of any Person (other than the Borrower or
any Subsidiary) in any property leased by such Person to a Borrower or any
Subsidiary;
(n) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Agreement;
(o) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(p) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(q) rights of licensors and licensees under licenses of trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights entered into in the ordinary
course of business or under the Transaction Documents or in connection with any
Permitted Acquisition;
(r) Liens of sellers of goods to a Borrower or any Subsidiary of a
Borrower arising under Article 2 of the Uniform Commercial Code or similar
provisions of applicable law in the ordinary course of business, covering only
the goods sold and securing only the unpaid purchase price for such goods and
related expenses; and
(s) Liens (other than Liens described in the foregoing clauses)
securing obligations not exceeding $1,000,000 in an aggregate principal amount
outstanding at any time; provided that such Liens shall be limited to specific
property and shall not be blanket Liens.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrowers or the Guarantors in the form of
cash, cash equivalents or short-term marketable debt securities so long as such
Investments are held in an account in which Administrative Agent has a perfected
security interest;
(b) advances to officers, directors and employees of any Borrower in
an aggregate amount not to exceed $2,500,000 at any time outstanding, for
travel, tuition reimbursement, 401(k) account transition amounts, entertainment,
relocation and analogous ordinary business purposes;
(c) Investments of any Borrower in any other Borrower or in any
Guarantor and Investments of any wholly-owned Subsidiary in any Borrower or any
Guarantor;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments by the Company in shares of its capital stock in
connection with its stock repurchase program in an aggregate amount not to
exceed $11,400,000.00 in any fiscal year of the Company;
(g) Permitted Acquisitions and temporary Investments in Domestic
Subsidiaries created solely for the purpose of effecting Permitted Acquisitions;
(h) Investments in Screening in an aggregate amount not to exceed
$5,000,000.00; and
(i) Other Investments existing as of the Closing Date and set forth in
Schedule 7.02 (and renewals, refinancings and extensions thereof).
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on SCHEDULE
7.03 and any refinancings, refundings, renewals or extensions thereof; PROVIDED
that (i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of the Company or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of any Borrower or Guarantor;
(d) obligations (contingent or otherwise) of the Company or any
Subsidiary existing or arising under any Swap Contract, PROVIDED that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party; and
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets within
the limitations set forth in SECTION 7.01(i); PROVIDED, HOWEVER, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $10,000,000;
(f) Indebtedness owing to another Borrower;
(g) Indebtedness under surety bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(h) Indebtedness that may be deemed to exist under the agreements
relating to any Acquisition (including the Transaction) or Disposition as a
result of the obligation of the applicable Borrower or Subsidiary to pay
indemnification, contingent purchase price payments or other purchase price
adjustments or similar obligations; and
(i) Indebtedness constituting Investments permitted under Section
7.02.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with (i) a Borrower,
provided that such Borrower shall be the continuing or surviving Person, (ii)
any one or more other Subsidiaries, PROVIDED that when any wholly-owned
Subsidiary is merging or consolidating with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person, and, PROVIDED FURTHER
that if a Guarantor is merging or consolidating with another Subsidiary, the
Guarantor shall be the continuing or surviving Person, and (iii) with any Person
that is not a Loan Party in connection with a Permitted Acquisition provided
that the ultimate surviving entity becomes a Loan Party within 30 days of such
merger or consolidation;
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to a Borrower or to a
Guarantor; and
(c) any Disposition permitted under Section 7.05 shall be permitted
under this Section.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to a Borrower or to a
Guarantor; and
(e) Dispositions permitted by Section 7.04;
(f) Dispositions for cash or cash equivalents;
(g) Dispositions resulting from casualty loss or condemnation; and
(h) Dispositions permitted by Section 7.02;
(i) PROVIDED, HOWEVER, that any Disposition pursuant to clauses (a)
through (e) shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) Each Subsidiary may make Restricted Payments to a Borrower, a
Guarantor and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) The Company and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) The Company may declare and make Ordinary Dividends so long as
after giving effect thereto there is no Event of Default;
(d) The Company and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests; and
(e) Restricted Payments permitted by Section 7.02(f).
7.07 ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (a) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by Borrowers and their Subsidiaries, or
substantially related or incidental thereto, (b) no Default or Event of Default
shall have occurred and be continuing either immediately prior to or immediately
after giving effect to such Acquisition, and (c) the Cost of Acquisition is less
than $50,000,000 (not more than $15,000,000 of which shall be in cash); provided
that, prior to effecting any such transaction, Borrowers shall have furnished to
Agent (i) pro forma historical financial statements as of the end of the most
recently completed fiscal year of the Company and most recent interim fiscal
quarter, if applicable, giving effect to such Acquisition and (ii) a Compliance
Certificate prepared on a historical pro forma basis as of the most recent date
for which financial statements have been furnished pursuant to Section 4.01(a)
or Section 6.01(a) or (b) giving effect to such Acquisition, which certificate
shall demonstrate that no Default or Event of Default would exist immediately
after giving effect thereto, (c) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into a Borrower or any wholly-owned Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquirer shall be any Borrower or any wholly-owned Subsidiary),
and (d) after giving effect to such Acquisition, the aggregate Costs of
Acquisition incurred during the fiscal year in which such Acquisition is made
shall not exceed $50,000,000 (not more than $25,000,000 of which shall be in
cash).
7.08 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.09 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Company, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Company or such Subsidiary as would be obtainable by the Company or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among Borrowers, Guarantors or a Borrower and any
Guarantor.
7.10 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to a Borrower or any
Guarantor or to otherwise transfer property to a Borrower or any Guarantor, (ii)
of any Subsidiary to Guarantee the Indebtedness of a Borrower or (iii) of a
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; PROVIDED, HOWEVER, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(e) or any Permitted Lien solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness or Permitted Lien, any customary restriction or
condition contained in any agreement relating to any Disposition permitted under
this Agreement, or the anti-assignment provisions applicable to any contract
with a Governmental Authority; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.
7.11 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.
7.12 FOREIGN SUBSIDIARIES. Create, acquire or permit to exist any
direct or indirect Subsidiary of the Company that is not a Domestic Subsidiary
unless such Subsidiary becomes a Guarantor in accordance with Section 6.13.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) NON-PAYMENT. The Borrowers or any other Loan Party fails to pay
any amount of principal of any Loan or any L/C Obligation, any interest on any
Loan or on any L/C Obligation, or any fee due hereunder, or any other amount
payable hereunder or under any other Loan Document, within five days after the
same becomes due; PROVIDED that with respect to the same becoming due on the
Revolving Credit Maturity Date or the Term Loan Maturity Date, the foregoing
five day grace period shall not apply;
(b) SPECIFIC COVENANTS. Any Borrower fails to perform or observe any
term, covenant or agreement contained in any of SECTION 6.01, 6.02, 6.03,
6.05(a), 6.10, 6.11, 6.12, 6.13 or 6.16 or ARTICLE VII, or any Guarantor fails
to perform or observe any term, covenant or agreement contained in the Guaranty;
or
(c) OTHER DEFAULTS. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of knowledge of any Loan Party
thereof or notice thereof from the Administrative Agent or any default or Event
of Default occurs under any other Loan Document; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) CROSS-DEFAULT. (i) the Company or any Subsidiary (A) fails to make
any payment of principal and interest when due, (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event, after giving effect to applicable
grace periods, is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee
or the Administrative Agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Company or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Company or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is
greater than the Threshold Amount; or
(f) INSOLVENCY PROCEEDINGS, ETC. Any Loan Party or any of its material
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) any Loan Party or any
material Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) JUDGMENTS. There is entered against the Company or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) INVALIDITY OF LOAN DOCUMENTS. Any Loan Document or any provision
thereof, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect; or any Loan Party or
any other Person contests in any manner the validity or enforceability of any
Loan Document or any provision thereof; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document or any provision thereof; or
(k) CHANGE OF CONTROL. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to any Borrower under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrowers to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for
in SECTION 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to SECTION 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including all
reasonable fees, charges and disbursements of any law firm or other
external counsel to the Administrative Agent) and amounts payable
under Article III) payable to the Administrative Agent in its capacity
as such;
SECOND, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than
principal, interest and L/C Fees) payable to Lenders and the L/C
Issuer (including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer (including fees and time charges
for attorneys who may be employees of any Lender or the L/C Issuer)
and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second
payable to them;
THIRD, to payment of that portion of the Obligations constituting
accrued and unpaid L/C fees and interest on the Loans, L/C Borrowings
and other Obligations, ratably among Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third
payable to them;
FOURTH, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings, ratably
among Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Fourth held by them;
FIFTH, to the Administrative Agent for the account of the L/C
Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit; and
SIXTH, to payment of Swap Termination Values owing to any Lender
or any Affiliate of any Lender arising under Related Swap Contracts
that shall have been terminated and as to which the Administrative
Agent shall have received notice of such termination and the Swap
Termination Value thereof from the applicable Lender or Affiliate of a
Lender and payment of amounts owing to any Lender or any Affiliate of
any Lender under any other Related Credit Arrangement and as to which
the Administrative Agent shall have received notice of such amount
from the applicable Lender or Affiliate of a Lender;
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by
Law.
Subject to SECTION 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF THE ADMINISTRATIVE AGENT. (a)
Each of the Lenders and the L/C issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither the Borrowers nor any other Loan Party shall have rights as
a third party beneficiary of any of such provisions.
(b) The Administrative Agent shall also act as the "collateral the
Administrative Agent" under the Loan Documents, and each of the Lenders and the
L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent
to act as the Administrative Agent of such Lender and the L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. In this
connection, the Administrative Agent, as "collateral the Administrative Agent"
and any co-the Administrative Agents, sub-the Administrative Agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05
or otherwise for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative
Agent), shall be entitled to the benefits of all provisions of this Article IX
and Article X, as though such co-the Administrative Agents, sub-the
Administrative Agents and attorneys-in-fact were the "collateral the
Administrative Agent" under the Loan Documents as if set forth in full herein
with respect thereto.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
(d) the Administrative Agent shall not be liable for any action taken
or not taken by it (i) with the consent or at the request of the Required
Lenders, or the Required Revolving Lenders or Required Term Loan Lenders, as the
case may be (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 8.02 and 10.01) or
(ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice describing such Default is given to the Administrative
Agent by the Borrowers, a Lender or the L/C Issuer. The Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
9.04 RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrowers),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. the Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub the Administrative Agents
appointed by the Administrative Agent. The Administrative Agent and any such sub
the Administrative Agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub the
Administrative Agent and to the Related Parties of the Administrative Agent and
any such sub the Administrative Agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as the Administrative Agent.
9.06 RESIGNATION OF THE ADMINISTRATIVE AGENT. The Administrative Agent
may at any time give notice of its resignation to Lenders, the L/C Issuer and
the Borrowers. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States and, which
successor administrative agent shall be consented to by the Company at all times
other than during the existence of an Event of Default (which consent of the
Company shall not be unreasonably withheld or delayed). If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative Agent
shall notify the Company and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring the Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the
Loan Documents, the retiring the Administrative Agent shall continue to hold
such collateral security until such time as a successor the Administrative Agent
is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by
or to each Lender and the L/C Issuer directly, until such time as the Required
Lenders appoint a successor the Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor's appointment as the
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) the Administrative Agent, and the retiring the Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above
in this Section). The fees payable by the Borrowers to a successor the
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
retiring the Administrative Agent's resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue
in effect for the benefit of such retiring the Administrative Agent, its sub the
Administrative Agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring the
Administrative Agent was acting as the Administrative Agent.
Any resignation by Bank of America as the Administrative Agent
pursuant to this Section shall also constitute its resignation as L/C Issuer.
Upon the acceptance of a successor's appointment as the Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer, (b) the
retiring L/C Issuer shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, no Lender holding a title listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 THE ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of Lenders, the L/C Issuer
and the Administrative Agent and their respective the Administrative Agents and
counsel and all other amounts due Lenders, the L/C Issuer and the Administrative
Agent under SECTIONS 2.04(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the L/C Issuer to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to Lenders and the L/C Issuer,
to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its the Administrative Agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.
9.10 GUARANTY MATTERS. Each Lender and the L/C Issuer hereby
irrevocably authorizes the Administrative Agent, at its option and in its
discretion, to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. Upon request by the Administrative Agent at any time, each Lender and
the L/C Issuer will confirm in writing the Administrative Agent's authority to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.10.
9.11 COLLATERAL MATTERS. (a) Each Lender and the L/C Issuer hereby
irrevocably authorizes and directs the Administrative Agent to enter into the
Collateral Documents for the benefit of such Lender and the L/C Issuer. Each
Lender and the L/C Issuer hereby agrees, and each holder of any Note by the
acceptance thereof will be deemed to agree, that, except as otherwise set forth
in Section 10.01, any action taken by the Required Lenders, in accordance with
the provisions of this Agreement or the Collateral Documents, and the exercise
by the Required Lenders of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of Lenders and the L/C Issuer. The Administrative Agent is
hereby authorized (but not obligated) on behalf of all of Lenders and the L/C
Issuer, without the necessity of any notice to or further consent from any
Lender or the L/C Issuer from time to time prior to, an Event of Default, to
take any action with respect to any Collateral or Collateral Documents which may
be necessary to perfect and maintain perfected the Liens upon the Collateral
granted pursuant to the Collateral Documents.
(b) Each Lender and the L/C issuer hereby irrevocably authorize the
Administrative Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (A) upon termination of
the Aggregate Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration
or termination of all Letters of Credit, (B) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, (C) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required Lenders,
or (D) in connection with any foreclosure sale or other disposition of
Collateral after the occurrence of an Event of Default; and
(ii) to subordinate any Lien on any property granted to or held
by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by this Agreement or any
other Loan Document.
Upon request by the Administrative Agent at any time, each Lender and the
L/C Issuer will confirm in writing the Administrative Agent's authority to
release or subordinate its interest in particular types or items of Collateral
pursuant to this Section 9.11.
(c) Subject to (b) above, the Administrative Agent shall (and is
hereby irrevocably authorized by each Lender and the L/C Issuer, to execute such
documents as may be necessary to evidence the release or subordination of the
Liens granted to the Administrative Agent for the benefit of the Administrative
Agent and Lenders and the L/C Issuer herein or pursuant hereto upon the
applicable Collateral; provided that (i) the Administrative Agent shall not be
required to execute any such document on terms which, in the Administrative
Agent's opinion, would expose the Administrative Agent to or create any
liability or entail any consequence other than the release or subordination of
such Liens without recourse or warranty and (ii) such release or subordination
shall not in any manner discharge, affect or impair the Obligations or any Liens
upon (or obligations of the Borrowers or any other Loan Party in respect of) all
interests retained by any Borrower or any other Loan Party, including the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral. In the event of any sale or transfer of Collateral, or any
foreclosure with respect to any of the Collateral, the Administrative Agent
shall be authorized to deduct all expenses reasonably incurred by the
Administrative Agent from the proceeds of any such sale, transfer or
foreclosure.
(d) The Administrative Agent shall have no obligation whatsoever to
any Lender, the L/C Issuer or any other Person to assure that the Collateral
exists or is owned by the applicable Borrower or any other Loan Party or is
cared for, protected or insured or that the Liens granted to the Administrative
Agent herein or in any of the Collateral Documents or pursuant hereto or thereto
have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to
continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Administrative Agent in this Section 9.11 or in any of the
Collateral Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Administrative
Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Administrative Agent's own interest in the Collateral as one of
Lenders and that the Administrative Agent shall have no duty or liability
whatsoever to Lenders or the L/C Issuer.
(e) Each Lender and the L/C Issuer hereby appoints each other Lender
as the Administrative Agent for the purpose of perfecting Lenders' and the L/C
Issuer's security interest in assets which, in accordance with Article 9 of the
UCC can be perfected only by possession. Should any Lender or the L/C Issuer
(other than the Administrative Agent) obtain possession of any such Collateral,
such Lender or the L/C Issuer shall notify the Administrative Agent thereof,
and, promptly upon the Administrative Agent's request therefor shall deliver
such Collateral to the Administrative Agent or in accordance with the
Administrative Agent's instructions.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by any
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender; PROVIDED, HOWEVER, in the sole discretion of the
Administrative Agent, only a waiver by the Administrative Agent shall be
required with respect to immaterial matters or items specified in SECTION
4.01(a) (iv) or (v) with respect to which the Borrowers have given assurances
satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date;
(b) extend or increase the Revolving Credit Commitment of any
Revolving Lender (or reinstate any Revolving Credit Commitment terminated
pursuant to Section 8.02) without the written consent of such Revolving Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to Lenders (or any of them) hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this SECTION 10.01) any fees or other amounts payable hereunder or under any
other Loan Document, without the written consent of each Lender directly
affected thereby; PROVIDED, HOWEVER, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of "Default Rate" or to
waive any obligation of any Borrower to pay interest or L/C Fees at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change SECTION 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or "Required Revolving Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; or
(g) except as permitted by SECTION 9.10, release any Guarantor from
the Guaranty or release the Liens on all or substantially all of the Collateral
in any transaction or series of related transactions except in accordance with
the terms of any Loan Document, without the written consent of each Lender;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document relating to any Letter of Credit issued or to
be issued by it; and (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Revolving
Credit Commitment of such Lender may not be increased or extended without the
consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS.
(a) NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to any Borrower or Guarantor, to the address, telecopier
number, electronic mail address or telephone number specified for the
Company on Schedule 10.02, and if the Administrative Agent, or the L/C
Issuer, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE ADMINISTRATIVE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY
OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OF FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY ADMINISTRATIVE AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related
Parties (collectively, the "the Administrative Agent Parties") have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of any Borrower's or the Administrative
Agent's transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such the
Administrative Agent Party; provided, however, that in no event shall any the
Administrative Agent Party have any liability to any Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).
(d) CHANGE OF ADDRESS, ETC. Each of each Borrower, the Administrative
Agent, and the L/C Issuer may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Company, the
Administrative Agent, and the L/C Issuer. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) RELIANCE BY THE ADMINISTRATIVE AGENT. L/C ISSUER AND LENDERS. The
Administrative Agent, the L/C Issuer and Lenders shall be entitled to rely and
act upon any notices (including telephonic Revolving Loan Notices) purportedly
given by or on behalf of any Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. Each Borrower
shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of any Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the
L/C Issuer or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. Each Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) INDEMNIFICATION BY THE BORROWER. Each Borrower shall indemnify the
Administrative Agent (and any subagent thereof), each Lender and the L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any law firm or external counsel
for any Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by Borrower or any other Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the Transaction, the performance by the parties hereto of
their respective obligations hereunder or thereunder, or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-the Administrative Agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or in
part, out of the comparative, contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) result from a claim brought by any Borrower
or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan Document, if such
Borrower or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrowers for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-the
Administrative Agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-the Administrative Agent), the L/C Issuer or such Related Party, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-the Administrative
Agent) or the L/C Issuer in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-the
Administrative Agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.12(d).
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest extent
permitted by applicable law, the Borrowers shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby, except to the extent such damages are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence, willful misconduct or bad faith of such Indemnitee (it
being understood that this sentence does not affect the confidentiality
obligations of the Administrative Agent and the Lenders under SECTION 10.07
hereof).
(e) PAYMENTS. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) SURVIVAL. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrowers is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither any
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent, the L/C Issuer and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and its Revolving Loans (including for purposes of this subsection (b),
participations in L/C Obligations) or of its Applicable Term Loan Percentage of
the Term Loan at the time owing to it (such Lender's portion of Loans,
commitments and risk participations with respect to the Revolving Credit
Facility and the Term Loan Facility (each, an "Applicable Facility") being
referred to in this Section 10.06 as its "Applicable Share")); provided that any
such assignment shall be subject to the following conditions:
(i) MINIMUM AMOUNTS.
(A) in the case of an assignment of the entire remaining
amount of the assigning Revolving Lender's Revolving Credit
Commitment or the Term Loan Lender's Term Loan, as applicable,
and the Loans at the time owing to it or in the case of an
assignment to a Lender, and Affiliate of a Lender or an Approved
Fund, no minimum amount need to be assigned; and
(B) in any case not described in subsection (b)(i)(A) of
this Section, the aggregate amount of the Applicable Share (which
for this purpose includes Loans outstanding thereunder) with
respect to each Applicable Facility, determined as of the date
the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than (A) $5,000,000 with respect to the
Revolving Credit Facility and (B) $1,000,000 with respect to the
Term Loan Facility, unless in either case each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consent (each
such consent not to be unreasonably withheld or delayed), or
unless such assignment is being made to or among members of an
Assignee Group or from a member of an Assignee Group to a Lender
or Affiliate thereof;
(ii) PROPORTIONATE AMOUNTS. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the
Applicable Facility, except that this clause (ii) shall not prohibit
any Lender from assigning all or a portion of its rights and
obligations among the Applicable Facilities on a non-pro rata basis
(iii) REQUIRED CONSENTS. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:
(A) the consent of the Company (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of
such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent
not to be unreasonably withheld or delayed) shall be required if
such assignment is to be a Person that is not a Lender, an
Affiliate of such Lender or an Approved Fund with respect to such
Lender; and
(C) the consent of the L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit
(whether or not then outstanding);
(iv) ASSIGNMENT AND ASSUMPTION. The parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the
amount, if any, required as set forth in Schedule 10.06; provided,
however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment; and provided, however, that (i) no fee shall be payable in
connection with a single assignment to or among members of an Assignee
Group or any Lender or an Affiliate thereof and (ii) only one such fee
shall be payable in the event of contemporaneous multiple assignments
by or to members of an Assignee Group or a Lender or an Affiliate
thereof. The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) NO ASSIGNMENT TO BORROWERS. No such Assignment shall be made
to a Borrower or any Affiliate of a Borrower, or any Subsidiary
thereof.
(vi) NO ASSIGNMENT TO NATURAL PERSONS. No such assignment shall
be made to a natural person.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease
to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrowers (at their expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with subsection (d) of
this Section.
(c) REGISTER. The Administrative Agent, acting solely for this purpose
as an the Administrative Agent of the Borrowers, shall maintain at the
Administrative Agent's Office a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Revolving Credit Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by each
of the Borrowers and the L/C Issuer, at any reasonable time and from time to
time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending,
any Lender may request and receive from the Administrative Agent a copy of the
Register.
(d) PARTICIPATIONS. Any Lender may at any time, without the consent
of, or notice to, the Borrowers or the Administrative Agent, sell participations
to any Person (other than a natural person or any Borrower or any of Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and/or the Loans (including such
Lender's participations in L/C Obligations) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Administrative
Agent, the L/C Issuer and the 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, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01 and 3.04 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of SECTION 10.08 as though it were a Lender,
provided such Participant agrees to be subject to SECTION 2.13 as though it were
a Lender.
(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTION 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company's prior written consent.
(f) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; PROVIDED that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) RESIGNATION AS L/C ISSUER. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its
Revolving Credit Commitment and Loans pursuant to subsection (b) above, Bank of
America may, upon 30 days' notice to the Company and the Lenders, resign as L/C
Issuer. In the event of any such resignation as L/C Issuer, the Borrowers shall
be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no failure by the Borrowers to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer, as the
case may be. If Bank of America resigns as L/C Issuer, it shall retain all the
rights, powers, privileges and duties of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation
as L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Revolving Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of a
successor L/C Issuer, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer, as
the case may be, and (b) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, the Administrative Agents, advisors
and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
any Borrower and its obligations, (g) with the consent of the Company or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than a Borrower. For
purposes of this Section, "INFORMATION" means all information received from any
Borrower or any Subsidiary relating to any Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential
basis prior to disclosure by any Borrower or any Subsidiary, provided that, in
the case of information received from any Borrower or any Subsidiary after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Each of the Administrative Agent, the Lenders
and the L/C Issuer acknowledges that (a) the Information may include material
non-public information concerning a Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and
be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of any Borrower or any other Loan Party against any and
all of the obligations of the Borrowers or the Loan Parties now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer or any such Affiliate, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrowers or the Loan Parties may
be contingent or unmatured or are owed to a branch or office of such Lender or
the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the L/C Issuer
or their respective Affiliates may have. Each Lender and the L/C Issuer agrees
to notify the Company and the Administrative Agent promptly after any such
setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 GOVERNING LAW; ARBITRATION.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA APPLICABLE TO
CONTRACTS EXECUTED AND TO BE FULLY PERFORMED IN SUCH STATE; PROVIDED THAT THE
PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) THIS SECTION CONCERNS THE RESOLUTION OF ANY CONTROVERSIES OR
CLAIMS BETWEEN THE BORROWERS AND THE LENDERS, WHETHER ARISING IN CONTRACT, TORT
OR BY STATUTE, INCLUDING BUT NOT LIMITED TO CONTROVERSIES OR CLAIMS THAT ARISE
OUT OF OR RELATE TO: (i) THIS AGREEMENT (INCLUDING ANY RENEWALS, EXTENSIONS OR
MODIFICATIONS); OR (ii) ANY DOCUMENT RELATED TO THIS AGREEMENT (COLLECTIVELY, A
"CLAIM"). FOR THE PURPOSES OF THIS ARBITRATION PROVISION ONLY, THE TERM "LENDER"
SHALL INCLUDE ANY PARENT CORPORATION, SUBSIDIARY OR AFFILIATE OF EACH LENDER
INVOLVED IN THE SERVICING, MANAGEMENT OR ADMINISTRATION OF ANY OBLIGATION
DESCRIBED OR EVIDENCED BY THIS AGREEMENT.
(c) AT THE REQUEST OF THE BORROWERS OR THE LENDERS, ANY CLAIM SHALL BE
RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT
(TITLE 9, U.S. CODE) TITLE 8.01 OF THE CODE OF VIRGINIA (COLLECTIVELY, THE
"ACT"). THE ACT WILL APPLY EVEN THOUGH THIS AGREEMENT PROVIDES THAT IT IS
GOVERNED BY THE LAW OF A SPECIFIED STATE. THE ARBITRATION WILL TAKE PLACE ON AN
INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION. HOWEVER, THE
ARBITRATOR(S) SHALL HAVE THE DISCRETION TO CONSOLIDATE PROCEEDINGS PERTAINING TO
THE LOAN PARTIES, THEIR SUCCESSORS AND ASSIGNS.
(d) ARBITRATION PROCEEDINGS WILL BE DETERMINED IN ACCORDANCE WITH THE
ACT, THE THEN-CURRENT RULES AND PROCEDURES FOR THE ARBITRATION OF COMMERCIAL
FINANCIAL DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR
THEREOF ("AAA"), AND THE TERMS OF THIS SECTION. IN THE EVENT OF ANY
INCONSISTENCY, THE TERMS OF THIS SECTION SHALL CONTROL. IF AAA IS UNWILLING OR
UNABLE TO (I) SERVE AS THE PROVIDER OF ARBITRATION OR (II) ENFORCE ANY PROVISION
OF THIS ARBITRATION CLAUSE, ANY PARTY TO THIS AGREEMENT MAY SUBSTITUTE ANOTHER
ARBITRATION ORGANIZATION WITH SIMILAR PROCEDURES TO SERVE AS THE PROVIDER OF
ARBITRATION.
(e) THE ARBITRATION SHALL BE ADMINISTERED BY AAA AND CONDUCTED, UNLESS
OTHERWISE REQUIRED BY LAW, IN FAIRFAX COUNTY, VIRGINIA. ALL CLAIMS SHALL BE
DETERMINED BY ONE ARBITRATOR; HOWEVER, IF CLAIMS EXCEED $5,000,000, UPON THE
REQUEST OF ANY PARTY, THE CLAIMS SHALL BE DECIDED BY THREE ARBITRATORS. ALL
ARBITRATION HEARINGS SHALL COMMENCE WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION
AND CLOSE WITHIN 90 DAYS OF COMMENCEMENT AND THE AWARD OF THE ARBITRATOR(S)
SHALL BE ISSUED WITHIN 30 DAYS OF THE CLOSE OF THE HEARING. HOWEVER, THE
ARBITRATOR(S), UPON A SHOWING OF GOOD CAUSE, MAY EXTEND THE COMMENCEMENT OF THE
HEARING FOR UP TO AN ADDITIONAL 60 DAYS. THE ARBITRATOR(S) SHALL PROVIDE A
CONCISE WRITTEN STATEMENT OF REASONS FOR THE AWARD. THE ARBITRATION AWARD MAY BE
SUBMITTED TO ANY COURT HAVING JURISDICTION TO BE CONFIRMED, JUDGMENT ENTERED,
AND ENFORCED.
(f) THE ARBITRATOR(S) WILL GIVE EFFECT TO STATUTES OF LIMITATION IN
DETERMINING ANY CLAIM AND MAY DISMISS THE ARBITRATION ON THE BASIS THAT THE
CLAIM IS BARRED. FOR PURPOSES OF THE APPLICATION OF THE STATUTE OF LIMITATIONS,
THE SERVICE ON AAA UNDER APPLICABLE AAA RULES OF A NOTICE OF CLAIM IS THE
EQUIVALENT OF THE FILING OF A LAWSUIT. ANY DISPUTE CONCERNING THIS ARBITRATION
PROVISION OR WHETHER A CLAIM IS ARBITRABLE SHALL BE DETERMINED BY THE
ARBITRATOR(S). THE ARBITRATOR(S) SHALL HAVE THE POWER TO AWARD LEGAL FEES
PURSUANT TO THE TERMS OF THIS AGREEMENT.
(g) THIS SECTION DOES NOT LIMIT THE RIGHT OF ANY BORROWER OR ANY
LENDER TO: (i) EXERCISE SELF-HELP REMEDIES, SUCH AS BUT NOT LIMITED TO, SETOFF;
(ii) INITIATE JUDICIAL OR NONJUDICIAL FORECLOSURE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL; (iii) EXERCISE ANY JUDICIAL OR POWER OF SALE RIGHTS, OR
(iv) ACT IN A COURT OF LAW TO OBTAIN AN INTERIM REMEDY, SUCH AS BUT NOT LIMITED
TO, INJUNCTIVE RELIEF, WRIT OF POSSESSION OR APPOINTMENT OF A RECEIVER, OR
ADDITIONAL OR SUPPLEMENTARY REMEDIES.
(h) THE FILING OF A COURT ACTION IS NOT INTENDED TO CONSTITUTE A
WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE SUING PARTY, THEREAFTER TO
REQUIRE SUBMITTAL OF THE CLAIM TO ARBITRATION.
(i) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CLAIM. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO
ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY
AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
SUCH CLAIM. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING
INTO THIS AGREEMENT.
10.14 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify each Borrower in
accordance with the Act.
10.15 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWERS:
INTERSECTIONS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chairman and Chief Executive Officer
CREDITCOM SERVICES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chairman and Chief Executive Officer
INTERSECTIONS HEALTH SERVICES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chairman
CHARTER MARKETING SERVICES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chairman
BANK OF AMERICA, N.A., as the
Administrative Agent, a Lender and L/C Issuer
By:___________________________
Name: _________________________
Title: ________________________