Exhibit 10.31
EXECUTION COPY
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Published CUSIP Number: ____________
SENIOR AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of April 13, 2006
among
COMPBENEFITS CORPORATION,
as Borrower,
THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
Issuing Lender
and Swingline Lender,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Syndication Agent
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................... 1
Section 1.01 Definitions.............................................. 1
Section 1.02 Computation of Time Periods.............................. 38
Section 1.03 Accounting Terms......................................... 38
Section 1.04 Terms Generally.......................................... 38
ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS.............................. 39
Section 2.01 Revolving Loans.......................................... 39
Section 2.02 Letters of Credit........................................ 41
Section 2.03 Tranche B Term Loans..................................... 47
Section 2.04 [INTENTIONALLY OMITTED.]................................. 50
Section 2.05 Swingline Loans.......................................... 50
ARTICLE III OTHER PROVISIONS RELATING TO LOANS............................ 52
Section 3.01 Default Rate............................................. 52
Section 3.02 Extension and Conversion................................. 52
Section 3.03 Prepayments.............................................. 53
Section 3.04 Termination and Reduction of Commitments................. 57
Section 3.05 Fees..................................................... 58
Section 3.06 Increased Cost and Reduced Return........................ 59
Section 3.07 Limitation on Types of Loans............................. 60
Section 3.08 Illegality............................................... 61
Section 3.09 Treatment of Affected Loans.............................. 61
Section 3.10 Taxes.................................................... 62
Section 3.11 Compensation............................................. 63
Section 3.12 Pro Rata Treatment....................................... 64
Section 3.13 Sharing of Payments...................................... 64
Section 3.14 Payments; Allocation of Payments......................... 65
Section 3.15 Evidence of Debt......................................... 67
Section 3.16 Assignment of Commitments Under Certain Circumstances.... 68
Section 3.17 Matters Applicable to all Requests for Compensation...... 68
Section 3.18 Survival................................................. 68
ARTICLE IV CONDITIONS..................................................... 69
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Section 4.01 Closing Conditions....................................... 69
Section 4.02 Conditions to all Extensions of Credit................... 75
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................. 76
Section 5.01 Financial Condition...................................... 76
Section 5.02 No Material Effect and No Internal Control Event......... 77
Section 5.03 Organization and Good Standing........................... 77
Section 5.04 Power; Authorization; Governmental Authorizations; Other
Consents; Enforceable Obligations........................ 78
Section 5.05 No Conflicts............................................. 79
Section 5.06 No Default............................................... 79
Section 5.07 Ownership of Personal Property; Liens.................... 79
Section 5.08 Indebtedness............................................. 79
Section 5.09 Litigation............................................... 79
Section 5.10 Taxes.................................................... 79
Section 5.11 Compliance with Law...................................... 80
Section 5.12 ERISA.................................................... 80
Section 5.13 Subsidiaries............................................. 82
Section 5.14 Governmental Regulations, Etc............................ 82
Section 5.15 Purpose of Loans and Letters of Credit................... 83
Section 5.16 Environmental Matters.................................... 83
Section 5.17 Intellectual Property.................................... 84
Section 5.18 Solvency................................................. 85
Section 5.19 Investments.............................................. 85
Section 5.20 Location of Collateral................................... 85
Section 5.21 Disclosure............................................... 86
Section 5.22 No Burdensome Restrictions; Material Agreements.......... 86
Section 5.23 Labor Matters............................................ 86
Section 5.24 Nature of Business....................................... 87
Section 5.25 Collateral Documents..................................... 87
Section 5.26 Transactions with Affiliates............................. 88
Section 5.27 Ownership of the Borrower, Etc........................... 88
Section 5.28 Insurance................................................ 88
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TABLE OF CONTENTS
Section 5.29 Certain Transactions..................................... 88
Section 5.30 Compliance with HIPAA.................................... 89
Section 5.31 Taxpayer Identification Number........................... 89
ARTICLE VI AFFIRMATIVE COVENANTS.......................................... 89
Section 6.01 Information Covenants.................................... 89
Section 6.02 Preservation of Existence, Franchises and Corporate
Formalities.............................................. 93
Section 6.03 Books and Records........................................ 93
Section 6.04 Compliance with Law...................................... 94
Section 6.05 Payment of Taxes and Other Indebtedness.................. 94
Section 6.06 Insurance; Certain Proceeds.............................. 94
Section 6.07 Maintenance of Property.................................. 96
Section 6.08 Performance of Obligations............................... 96
Section 6.09 Use of Proceeds.......................................... 96
Section 6.10 Audits/Inspections....................................... 96
Section 6.11 Additional Non-Regulated Subsidiaries.................... 97
Section 6.12 Additional Regulated Subsidiaries........................ 97
Section 6.13 Further Assurances with Respect to Collateral............ 98
ARTICLE VII NEGATIVE COVENANTS............................................ 98
Section 7.01 Indebtedness............................................. 98
Section 7.02 Liens.................................................... 99
Section 7.03 Nature of Business....................................... 100
Section 7.04 Consolidation, Merger, Dissolution, etc.................. 100
Section 7.05 Asset Dispositions....................................... 101
Section 7.06 Investments; Acquisitions................................ 101
Section 7.07 Restricted Payments...................................... 102
Section 7.08 Prepayments of Indebtedness, etc......................... 102
Section 7.09 Transactions with Affiliates............................. 103
Section 7.10 Fiscal Year; Organizational and Certain other Documents.. 103
Section 7.11 Limitation on Restricted Actions......................... 103
Section 7.12 Ownership of Subsidiaries; Limitations on the Borrower... 104
Section 7.13 Sale Leasebacks.......................................... 105
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Section 7.14 No Further Negative Pledges.............................. 105
Section 7.15 Operating Lease Obligations.............................. 105
Section 7.16 No Foreign Subsidiaries.................................. 105
Section 7.17 Impairment of Security Interests; Use of Proceeds........ 105
Section 7.18 Sales of Receivables..................................... 106
Section 7.19 Financial Covenants...................................... 106
Section 7.20 Capital Expenditures..................................... 106
ARTICLE VIII EVENTS OF DEFAULT............................................ 107
Section 8.01 Events of Default........................................ 107
Section 8.02 Acceleration; Remedies................................... 109
Section 8.03 Equitable Remedies....................................... 110
ARTICLE IX AGENCY PROVISIONS.............................................. 111
Section 9.01 Appointment and Authorization of the Administrative
Agent.................................................... 111
Section 9.02 Delegation of Duties..................................... 112
Section 9.03 Liability of Agent-Related Persons....................... 112
Section 9.04 Reliance by Agents....................................... 112
Section 9.05 Notice of Default........................................ 113
Section 9.06 Credit Decision; Disclosure of Information by Agents..... 113
Section 9.07 Indemnification of Agents................................ 114
Section 9.08 Agents in their Individual Capacities.................... 114
Section 9.09 Successor Agents......................................... 115
Section 9.10 Administrative Agent May File Proof of Claims............ 115
Section 9.11 Collateral and Guaranty Matters.......................... 116
Section 9.12 Other Agents; Arrangers and Managers..................... 117
ARTICLE X MISCELLANEOUS................................................... 117
Section 10.01 Notices and Other Communications; Facsimile Copies....... 117
Section 10.02 Right of Set-Off......................................... 119
Section 10.03 Successors and Assigns................................... 120
Section 10.04 No Waiver; Remedies Cumulative........................... 124
Section 10.05 Expenses; Indemnification................................ 124
Section 10.06 Amendments, Waivers and Consents......................... 126
Section 10.07 Counterparts............................................. 128
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Section 10.08 Headings................................................. 128
Section 10.09 Survival................................................. 128
Section 10.10 Tax Forms................................................ 129
Section 10.11 Governing Law; Submission to Jurisdiction; Venue......... 130
Section 10.12 Severability............................................. 131
Section 10.13 Confidentiality.......................................... 131
Section 10.14 Source of Funds.......................................... 132
Section 10.15 Conflict................................................. 133
Section 10.16 USA Patriot Act Notice................................... 133
Section 10.17 Interest Rate Limitation................................. 133
Section 10.18 No Advisory or Fiduciary Responsibility.................. 133
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TABLE OF CONTENTS
SCHEDULES
Schedule 1.01A Investments
Schedule 1.01B Liens
Schedule 1.01C Commitments and Pro Rata Shares
Schedule 5.01 Liabilities
Schedule 5.04 Required Consents, Authorizations, Notices and Filings
Schedule 5.11 Compliance with Law
Schedule 5.12 ERISA
Schedule 5.13 Subsidiaries
Schedule 5.14 Governmental Regulations
Schedule 5.16 Environmental Matters
Schedule 5.17 Intellectual Property
Schedule 5.20 Properties
Schedule 5.22 Material Contracts
Schedule 5.23 Labor Matters
Schedule 5.25 Recordings for the First Collateral
Schedule 5.26 Transactions with Affiliates
Schedule 5.27 Ownership
Schedule 5.28 Insurance
Schedule 7.01 Indebtedness
Schedule 10.01 Administrative Agent's Office, Certain Addresses for Notices
Schedule 10.03 Processing and Recordation Fees
EXHIBITS
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Senior Indemnity, Subrogation and Contribution Agreement
Exhibit C [Reserved]
Exhibit D Form of Joinder Agreement
Exhibit E-1 Form of Notice of Borrowing
Exhibit E-2 Form of Swingline Notice of Borrowing
Exhibit F Form of Notice of Extension/Conversion
Exhibit G Form of Solvency Certificate
Exhibit H [Reserved]
Exhibit I Form of Pledge and Security Agreement
Exhibit J Form of Senior Subsidiaries Guarantee Agreement
Exhibit K Form of Revolving Note
Exhibit L Form of Tranche B Term Loan Note
Exhibit M Form of Swingline Note
Exhibit N-1 Form of Legal Opinion (General External Counsel)
Exhibit N-2 Form of Legal Opinion (Local Corporate Counsel)
Exhibit N-3 Form of Legal Opinion (Local Collateral Counsel)
Exhibit O Form of Compliance Certificate
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SENIOR AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 13,
2006 among COMPBENEFITS CORPORATION, the LENDERS referred to herein, and BANK OF
AMERICA, N.A., as Administrative Agent, Issuing Lender and Swingline Lender.
Capitalized terms used herein shall have the meanings assigned thereto in
Section 1.01.
WHEREAS, CompBenefits Corporation has requested the terms and
provisions of the Existing Credit Agreement be amended and restated in its
entirety as provided in this Agreement;
WHEREAS, CompBenefits Corporation will replace CompBenefits Dental and
Vision Company as the borrower under this Agreement;
WHEREAS, the Lenders are willing to do so on the terms and subject to
the conditions hereinafter set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings specified below unless the context otherwise
requires:
"Account Control Agreements" shall have the meaning specified in the
Pledge and Security Agreement.
"Additional Subsidiary Guarantor" shall mean each Person that becomes
a Subsidiary Guarantor after the Closing Date by execution of a Joinder
Agreement.
"Adjusted Base Rate" shall mean on any day (a) in the case of
Revolving Loans and Swingline Loans, the Base Rate for such day plus the
Applicable Percentage, and (b) in the case of the Tranche B Term Loans, (i) the
Base Rate for such day plus 2.00% if the Total Leverage Ratio is greater than or
equal to 4.00 to 1.00 or (ii) the Base Rate for such day plus 1.75% if the Total
Leverage Ratio is less than 4.00 to 1.00.
"Adjusted Eurodollar Rate" shall mean for any Interest Period (a) in
the case of Revolving Loans, the Eurodollar Rate for such Interest Period plus
the Applicable Percentage, and (b) in the case of the Tranche B Term Loans, (i)
the Eurodollar Rate for such Interest Period plus 3.00% if the Total Leverage
Ratio is greater than or equal to 4.00 to 1.00; or (ii) the Eurodollar Rate for
such Interest Period plus 2.75% if the Total Leverage Ratio is less than 4.00 to
1.00.
"Administrative Agent" shall mean Bank of America, in its capacity as
Administrative Agent for the Lenders hereunder and under the other Senior Credit
Documents, and its successor or successors in such capacity.
"Administrative Agent's Office" shall mean the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.01, or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Administrative Questionnaire" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"Affected Loans" shall have the meaning assigned to such term in
Section 3.09.
"Affected Type" shall have the meaning assigned to such term in
Section 3.09.
"Affiliate" shall mean (a) with respect to any Person (including the
Consolidated Parties), any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person and
(b) with respect to any of the Consolidated Parties, any Person directly or
indirectly owning or holding ten percent (10%) or more of the equity interest in
such Person. For purposes of this definition, "control" when used with respect
to any Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agent-Related Persons" shall mean the Administrative Agent, together
with its respective Affiliates (including, Banc of America Securities, in its
capacity as Sole Lead Arranger or otherwise), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agreement" shall mean this Senior Amended and Restated Credit
Agreement, as the same may be amended, modified, amended and restated,
supplemented, extended, renewed or replaced or otherwise modified from time to
time.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the office or offices of such Lender described as such in such
Lender's Administrative Questionnaire, or such other office or offices as to
which a Lender may from time to time notify the Borrower and the Administrative
Agent.
"Applicable Percentage" shall mean, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan or any Swingline
Loan, the appropriate applicable percentage set forth below opposite the Total
Leverage Ratio as of the most recent Calculation Date:
APPLICABLE PERCENTAGE
Revolving Loans and Swingline Loans
-----------------------------------------------------------------------------
Total Base Rate for
Pricing Leverage Eurodollar Rate for Revolving Loans and
Level Ratio Revolving Loans Swingline Loans
------- ----------------------- ------------------- -------------------
I > or = 4.75 to 1.00 3.00% 2.00%
II > or = 4.00 to 1.00 but 2.75% 1.75%
< 4.75 to 1.00
III > or = 3.00 to 1.00 but 2.50% 1.50%
< 4.00 to 1.00
IV < 3.00 to 1.00 2.25% 1.25%
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Each Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five Business Days after the date by which the
Borrower is required to provide the Compliance Certificate in accordance with
the provisions of Section 6.01(c) for the most recently ended fiscal quarter or
year of the Borrower; provided, however, that (a) each initial Applicable
Percentage from the Closing Date until the first quarterly Compliance
Certificate is delivered shall be based on Pricing Level I (as shown above) and,
thereafter, each Applicable Percentage shall be based on the Pricing Level (as
shown above) corresponding to the Total Leverage Ratio as of the last day of the
most recently ended fiscal quarter or year of the Borrower preceding the
applicable Calculation Date, (b) if the Borrower fails to provide the Compliance
Certificate to the Administrative Agent's Office as required by Section 6.01(c)
covering financial statements for the most recently ended fiscal quarter or year
of the Borrower preceding the applicable Calculation Date, each Applicable
Percentage from such Calculation Date shall be based on Pricing Level I (as
shown above) until such time as an appropriate Compliance Certificate is
provided, whereupon each Applicable Percentage shall be based on the Pricing
Level (as shown above) corresponding to the Total Leverage Ratio as of the last
day of the most recently ended fiscal quarter or year of the Borrower preceding
such Calculation Date, and (c) if and for so long as any Default or Event of
Default shall have occurred and be continuing, each Applicable Percentage shall
be based on Pricing Level I (as shown above). Each Applicable Percentage shall
be effective from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentage shall be applicable to all Loans then
outstanding or subsequently made or issued.
"Approved Bank" shall have the meaning assigned to such term in the
definition of "Cash Equivalents" set forth in this Section 1.01.
"Approved Fund" shall mean any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) any entity or an Affiliate of
any entity that administers or manages a Lender.
"Asset Disposition" shall mean the disposition of any or all of the
assets of any Consolidated Party (including the Capital Stock of a Subsidiary),
whether by sale, lease (including any Sale and Leaseback Transaction), transfer,
Casualty, Condemnation or otherwise or other extraordinary receipts (including
indemnity payments (except indemnity payments received solely to pay a third
party obligation or to reimburse any Credit Party for payment made by such
Credit Party of such third party obligation) and pension reversions but
excluding tax refunds); provided that the foregoing definition shall not be
deemed to imply that any such Asset Disposition is permitted under this
Agreement. The term "Asset Disposition" shall not include any Equity Issuance.
"Assignee Group" shall mean two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor or an Affiliate of such investment advisor.
"Assignment and Assumption" shall mean an assignment and assumption
entered into by a Lender and its assignee in the form of Exhibit A or such other
similar form as shall be approved by the Administrative Agent.
3
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Bank of America" shall mean Bank of America, N.A. and its successors.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Bankruptcy Event" shall mean, with respect to any Person, the
occurrence of any of the following with respect to such Person: (a) a court or
governmental agency having jurisdiction in the premises shall enter a decree or
order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or ordering the winding up or liquidation of its affairs; or (b)
there shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (c) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or make any general assignment for the benefit of creditors; or (d)
such Person shall be unable to, or shall admit in writing its inability to, pay
its debts generally as they become due.
"Base Rate" shall mean for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" shall mean CompBenefits Corporation, a Delaware
corporation, and its successors and permitted assigns.
"Borrower Common Stock" shall mean the common stock, par value $.01
per share, of the Borrower.
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"Business Associate Agreement" shall mean the agreement referred to in
Section 4.01(r).
"Business Day" shall mean a 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), except that, when used in connection with a Eurodollar Rate Loan, such
day shall also be a day on which dealings in Dollar deposits are conducted by
and between banks in the London interbank market.
"Businesses" shall have the meaning assigned to such term in Section
5.16.
"Calculation Date" shall have the meaning assigned to such term in the
definition of "Applicable Percentage" set forth in this Section 1.01.
"Capital Lease" shall mean, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of such Person.
"Capital Stock" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and (f) all rights to purchase, warrants, options
and other securities exercisable for, exchangeable for or convertible into any
of the foregoing.
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve (12) months from the date of acquisition, (b) Dollar denominated
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six (6)
months of the date of acquisition, (d) repurchase agreements with a bank or
trust company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of America and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000
5
and the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"Cash Management Bank" shall mean any party to a Cash Management
Services Agreement with the Borrower or any of its Subsidiaries which party was
a Lender or an Affiliate of a Lender under this Agreement at the time it entered
into such Cash Management Services Agreement.
"Cash Management Services Agreement" shall mean any agreement to
provide cash management services, including treasury, depositary, overdraft,
credit or debit card, electronic funds transfer or other cash management
services.
"Casualty" shall mean any casualty or other loss, damage or
destruction.
"Change of Control" shall mean the occurrence of any of the following
events: (a) the Borrower shall beneficially own less than 100% of the Capital
Stock of CompBenefits Dental (on a fully diluted basis); (b) any Person or
"group" (within the meaning of Rule 13d-5 under the Securities Exchange Act of
1934, as amended), together with its Affiliates, other than the Investor Group,
shall beneficially own, directly or indirectly, Capital Stock of the Borrower
entitled to (i) prior to the consummation of an IPO, 35% or more of the Total
Voting Power of the Borrower or (ii) after the consummation of an IPO, 30% or
more of the Total Voting Power of the Borrower; (c) prior to the consummation of
an IPO, the Sponsor Group shall beneficially own, directly or indirectly,
outstanding shares of common stock of the Borrower entitled to less than a
majority of the Total Voting Power of the Borrower or (d)(i) prior to the
consummation of an IPO, the failure at any time of a majority of the seats
(excluding vacant seats) on the board of directors of the Borrower and
CompBenefits Dental to be occupied by persons who were nominated by or on behalf
of the Investor Group or (ii) for a period of one year immediately following the
consummation of an IPO, the failure of representatives of at least 2 members of
the Sponsor Group to maintain seats on the board of directors of the Borrower
and CompBenefits Dental.
"Class", when used with respect to a Loan or a Commitment to make a
Loan, refers to whether such Loan is a Tranche B Term Loan, a Revolving Loan or
a Swingline Loan, each of which constitutes a Class.
"Closing Date" shall mean the first date all conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor sections.
"Collateral" shall mean all the collateral which is identified in, and
at any time is purported to be covered by, the Collateral Documents.
"Collateral Documents" shall mean the Pledge and Security Agreement,
the Perfection Certificate, each Perfection Certificate Supplement, each Account
Control Agreement,
6
each Intellectual Property Security Agreement, each Waiver Agreement and any
other security agreements, pledge agreements or similar instruments delivered to
the Administrative Agent from time to time pursuant to Section 6.11, Section
6.12 and Section 6.13, and each other agreement, instrument or document that
purports to create a Lien in favor of the Administrative Agent for the benefit
of the Secured Parties.
"Commitment" shall mean (a) with respect to each Lender, the Revolving
Commitment of such Lender and/or the Tranche B Term Loan Commitment of such
Lender, in each case as and to the extent applicable, (b) with respect to the
Issuing Lender, the LOC Commitment and (c) with respect to the Swingline Lender,
the Swingline Loan Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 3.05(a).
"Commitment Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.05(a).
"Company Properties" shall have the meaning assigned to such term in
Section 5.16.
"CompBenefits Dental" shall mean CompBenefits Dental and Vision
Company, a Florida corporation, and its successors and permitted assigns.
"Compliance Certificate" shall mean a compliance certificate in the
form of Exhibit O or such other form as shall be approved by the Administrative
Agent.
"Condemnation" shall mean any taking of Property, or any part thereof
or interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner.
"Condemnation Award" shall mean all proceeds of any Condemnation or
transfer in lieu thereof.
"Consolidated Capital Expenditures" shall mean, for any period, the
sum of all amounts that would, in accordance with GAAP, be included as additions
to property, plant and equipment and other capital expenditures on a
consolidated statement of cash flows for the Borrower and its Consolidated
Subsidiaries during such period (including the amount of assets leased under any
Capital Lease). Notwithstanding the foregoing, the term "Consolidated Capital
Expenditures" shall not include (a) capital expenditures in respect of the
reinvestment of Insurance Proceeds and Condemnation Awards received by the
Borrower and its Subsidiaries to the extent that such reinvestment is permitted
under the Senior Credit Documents and (b) capital expenditures for Permitted
Acquisitions.
"Consolidated Cash Dividends" shall mean, for any period, the
aggregate amount of all Restricted Payments paid in cash by the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis in accordance with
GAAP, during such period.
7
"Consolidated Cash Interest Expense" shall mean, for any period,
without duplication, the gross amount of interest expense of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP, during such period, including (a) the portion of any payments or
accruals with respect to Capital Leases that are allocable to interest expense
in accordance with GAAP, (b) net costs under Interest Rate Protection Agreements
during such period and (c) all fees (other than the annual administrative fee
payable to the Administrative Agent in connection with this Agreement), charges,
discounts and other costs paid in respect of Indebtedness during such period;
provided that (i) all non-cash interest expense shall be excluded and (ii) any
interest on Indebtedness of another Person that is guaranteed by the Borrower or
any of its Consolidated Subsidiaries or secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) a Lien on, or payable out of the proceeds of the sale of or production from,
assets of the Borrower or any of its Consolidated Subsidiaries (whether or not
such guarantee or Lien is called upon) shall be included; provided that
Consolidated Cash Interest Expense for any fiscal quarter ending prior to April
1, 2006 shall be deemed to equal $4,100,000.
"Consolidated Cash Taxes" shall mean, for any period, the aggregate
amount of all federal, state, local and foreign income, value added and similar
taxes or any other taxes of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, to the extent the
same are actually paid directly in cash by the Borrower or any of its
Consolidated Subsidiaries during such period or paid through Permitted Tax
Dividends, net of any tax refunds during such period.
"Consolidated EBITDA" shall mean, for any period, the sum (without
duplication) of (a) Consolidated Net Income for such period, plus (b) an amount
which, in the determination of Consolidated Net Income for such period, has been
deducted for (i) interest expense, (ii) total federal, state, local and foreign
income, value added and similar taxes, (iii) depreciation and amortization
expense, and (iv) other non-cash charges or non-cash losses (in each case,
except to the extent that such non-cash charge represents a reserve or accrual
for a future cash charge); minus (c) an amount which, in the determination of
Consolidated Net Income for such period, has been added for any non-cash income
or non-cash gains, all as determined in accordance with GAAP.
"Consolidated Fixed Charges" shall mean, for any period, the sum of
(a) Consolidated Cash Interest Expense for such period, plus (b) Consolidated
Scheduled Debt Payments for such period, plus (c) Consolidated Cash Dividends
for such period, plus (d) Consolidated Cash Taxes for such period.
"Consolidated Net Income" shall mean, for any period, net income (or
loss) after taxes of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP, for such period; provided that
there shall be excluded from such calculation of net income (or loss) (a) the
income of any Person in which any other Person (other than the Borrower or any
of its Subsidiaries) has any equity interest, except to the extent of the amount
of dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Subsidiaries or the
date such Person's assets are acquired by the
8
Borrower or any of its Subsidiaries, except as provided in the definition of Pro
Forma Basis set forth in this Section 1.01, (c) the income of any Subsidiary of
the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Subsidiary, (d) any after-tax gains or losses attributable to sales of
assets out of the ordinary course of business and (e) to the extent not included
in subsections (a) through (d) above, any non-cash extraordinary gains or
non-cash extraordinary losses.
"Consolidated Parties" shall mean the Borrower and its Subsidiaries,
and "Consolidated Party" shall mean any one of them.
"Consolidated Scheduled Debt Payments" shall mean, for any period,
with respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis, the sum of all scheduled payments of principal on Funded Indebtedness for
such period (including the principal component of payments due on Capital Leases
during such period, but excluding payments due on Swingline Loans during such
period); provided that Consolidated Scheduled Debt Payments shall not include
voluntary prepayments of Funded Indebtedness, mandatory prepayments required
pursuant to Section 3.03(b) or other mandatory prepayments of Funded
Indebtedness; provided, further, the amount of Consolidated Scheduled Debt
Payments consisting of the Tranche B Term Loans for the measurement period of
four fiscal quarters ending on each of June 30, 2006, September 30, 2006,
December 31, 2006 and March 31, 2007, shall be deemed to equal $3,750,000.
"Consolidated Subsidiaries" of any Person shall mean all Subsidiaries
of such Person that should be consolidated with such Person for financial
reporting purposes in accordance with GAAP.
"Consolidated Total Assets" shall mean, as of any date, all assets
which would, in accordance with GAAP, be included as assets on a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of such date.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 3.02 or Section 3.09 of one Type of Loan into another Type
of Loan.
"Convertible Non-Voting Common Stock" shall mean the Convertible
Non-Voting Common Stock, par value $.01 per share, of the Borrower.
"Convertible Preferred Stock" shall mean (i) the Series A Convertible
Participating Preferred Stock, par value $.01 per share, of the Borrower and
(ii) the Series B Convertible Participating Preferred Stock, par value $.01 per
share, of the Borrower, collectively.
"Credit Parties" shall mean the Borrower and the Subsidiary
Guarantors, and "Credit Party" shall mean any one of them.
"Credit Party Materials" shall have the meaning set forth in the final
paragraph of Section 6.01.
9
"Debt Issuance" shall mean the issuance of any Indebtedness for
borrowed money by any Consolidated Party; provided that the foregoing definition
shall not be deemed to imply that any such Debt Issuance is permitted under this
Agreement.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender that (a) has failed to fund
any portion of a Loan or participations in LOC Obligations or participations in
Swingline Loans required to be funded by it hereunder within one Business Day of
the date required to be funded by it hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.
"DHMI" shall mean Dental Health Management, Inc., a Delaware
corporation, and a Wholly-Owned Subsidiary of the Borrower.
"Disqualified Stock" of any Person shall mean (a) any Capital Stock of
such Person which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening
of any event or otherwise (i) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund obligation or
otherwise or (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock and (b) if such Person is the Borrower or a
Subsidiary of the Borrower, any Preferred Stock of such Person.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Eligible Assignee" shall mean any Person that meets the requirements
to be an assignee under Section 10.03 (b)(iii), (v) and (vi) (subject to such
consents, if any, as may be required under Section 10.03(b) (iii)).
"Environmental Laws" shall mean any and all applicable federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permit requirements, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the protection of the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes into the environment, including, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes.
10
"Equity Issuance" shall mean any issuance by any Consolidated Party of
any Capital Stock to any Person or the receipt by any such Person of a capital
contribution from any other Person, including the issuance of any of its Capital
Stock pursuant to the exercise of options or warrants and the conversion of any
Indebtedness to equity; provided that the foregoing definition shall not be
deemed to imply that any such issuance is permitted under this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, including the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) under common control with any Consolidated Party within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes relating to Section 412 of the Code).
"ERISA Event" shall mean (a) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (b) the withdrawal by any Consolidated
Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (c) the
distribution of a notice of intent to terminate or the actual termination of a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the institution of
proceedings to terminate or the actual termination of a Plan by the PBGC under
Section 4042 of ERISA; (e) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (f) the complete or partial withdrawal of any
Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (g) the
conditions for imposition of a lien under Section 302(f) of ERISA exist with
respect to any Plan; or (h) the adoption of an amendment to any Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Base Rate" shall have the meaning specified in the
definition of Eurodollar Rate.
"Eurodollar Rate Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean for any Interest Period with respect to
any Eurodollar Rate Loan, a rate per annum determined by the Administrative
Agent pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
"Eurodollar Base Rate" shall mean, for such Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by
11
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
"Eurodollar Base Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
"Eurodollar Reserve Percentage" shall mean, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning assigned to such term in
Section 8.01.
"Excess Cash Flow" shall mean, with respect to any fiscal year of the
Borrower, an amount equal to (a) Consolidated EBITDA for such period, plus (b)
extraordinary cash income, if any, and business interruption insurance proceeds,
if any, of the Borrower and its Consolidated Subsidiaries during such period to
the extent not included in Consolidated EBITDA for such period and not required
to be utilized in connection with a payment made (or to be made) by the Borrower
pursuant to Section 3.03(b)(iii), minus (c) Consolidated Capital Expenditures
paid in cash or Revolving Loans (and not with the proceeds of any other
Indebtedness) during such period, minus (d) Consolidated Cash Interest Expense
actually paid by the Borrower and its Consolidated Subsidiaries during such
period, minus (e) Consolidated Cash Taxes during such period, minus (f) the
aggregate principal amount of all permanent repayments of Funded Indebtedness
during such period, minus (g) cash paid for Permitted Acquisitions, minus (h)
with respect to fiscal year 2006 only, one-time payment of $3,609,000
representing the aggregate amount due and payable on or before December 31, 2006
to certain optometrists for withholds made on claims prior to 1998.
"Excluded Asset Disposition" shall mean (a) any Asset Disposition by
any Consolidated Party to the Borrower or any of the Subsidiary Guarantors if,
after giving effect to such Asset Disposition, no Default or Event of Default
exists and is continuing or is created by such Asset Disposition, (b) the sale
of inventory in the ordinary course of business for fair value, on an arms'
length basis and consistent with past practice, (c) the liquidation or sale of
Cash Equivalents for the account of the Borrower and its Subsidiaries, (d) uses
of cash to the extent not prohibited hereunder, and (e) the sale, lease,
transfer, assignment or other disposition of
12
assets (other than in connection with any Casualty or Condemnation) of the
Borrower or any of its Subsidiaries to any other Person so long as the fair
market value of all property disposed of as provided in this subsection (e) does
not exceed $500,000 in the aggregate in any fiscal year of the Borrower and so
long as no Default or Event of Default exists and is continuing or is created by
such Asset Disposition. The foregoing definition shall not be deemed to imply
any such Asset Disposition is permitted under this Agreement.
"Excluded Debt Issuance" shall mean any issuance of Indebtedness
permitted by Section 7.01.
"Excluded Equity Issuance" shall mean (a) any issuance by any
Subsidiary of the Borrower of its Capital Stock to the Borrower or any
Wholly-Owned Subsidiary of the Borrower, (b) any receipt by any Subsidiary of
the Borrower of a capital contribution from the Borrower or a Wholly-Owned
Subsidiary of the Borrower, (c) the issuance by the Borrower of Capital Stock
issued in accordance with the Stock Option Plan or (d) any Qualifying Equity
Issuance.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which it maintains
a lending office, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is
located, (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Borrower under Section 3.16), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new lending office), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.10(a) and (d) all interest, penalties and additions to tax
relating to Excluded Taxes described in subsections (a) through (c) of this
definition.
"Existing Credit Agreement" shall mean the Credit Agreement dated as
of February 27, 2004 among the Borrower, CompBenefits Dental, the lenders named
therein, Bank of America, N.A., as administrative agent, issuing lender and
swingline lender, and certain other agents thereto, amended to the date hereof.
"Existing Letter of Credit" shall mean that certain standby letter of
credit, issued by the Issuing Lender under the Existing Credit Agreement, with
number 000000003057518, expiry date of June 30, 2006 in the amount of $500,000
for the benefit of Vista Healthplan, Inc.
"Existing Subordinated Debt Agreements" shall mean each of (a) the
Securities Purchase Agreement dated as of July 12, 2000 among the Borrower,
CompBenefits Dental, the Subsidiaries of the Borrower referred to therein and
the Existing Subordinated Noteholder, as amended by that certain First Amendment
to Securities Purchase Agreement and Waiver, dated as of April 4, 2003 and that
certain Second Amendment to Securities Purchase Agreement dated
13
as of February 27, 2004 and (b) the Warrant Agreement dated as of July 12, 2000
between the Borrower and the Existing Subordinated Noteholder, in each case as
the same may be amended, supplemented or modified from time to time in
accordance with the limitations set forth herein, and including the exhibits and
schedules thereto and all other agreements, documents and instruments relating
to the issuance of the Existing Subordinated Notes and related Capital Stock.
"Existing Subordinated Noteholder" shall mean TCW/Crescent Mezzanine
Partners II, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust
II, a Delaware business trust, TCW Leveraged Income Trust, L.P., a Delaware
limited partnership, TCW Leveraged Income Trust II, L.P., a Delaware limited
partnership, and TCW Leveraged Income Trust IV, L.P., a Delaware limited
partnership, collectively, and their respective successors and permitted
assigns, or any other holder or holders from time to time of the Existing
Subordinated Notes.
"Existing Subordinated Notes" shall mean any one of the 12 1/2% Senior
Subordinated Notes issued by CompBenefits Dental in favor of the Existing
Subordinated Noteholder pursuant to the Existing Subordinated Debt Agreements,
as the same may be amended, modified or supplemented from time to time in
accordance with the limitations set forth herein.
"Extend", "Extension", "Extended" and "Extending" shall refer to an
extension pursuant to Section 3.02 or 3.09 of existing Loans into a subsequent
permissible Interest Period.
"Federal Funds Rate" shall mean, 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 FRB on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" shall mean the letter agreement dated as of March 10,
2006 among the Borrower, Bank of America and the Sole Lead Arranger.
"Fees" shall mean all fees payable pursuant to Section 3.05.
"Fixed Charge Coverage Ratio" shall mean, as of any day, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters of
the Borrower ending on, or most recently preceding, such day, minus Consolidated
Capital Expenditures for such period (except capital expenditures financed by
Indebtedness other than Revolving Loans or Swingline Loans) to (b) Consolidated
Fixed Charges for such period.
"Foreign Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such Person.
14
"Foreign Lender" shall have the meaning assigned to such term in
Section 10.10.
"FRB" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Fronting Fee" shall have the meaning assigned to such term in Section
3.05(b)(ii).
"Fund" shall mean any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course.
"Funded Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness of the
types referred to in subsections (e), (f), (g), (i), and (k) of the definition
of "Indebtedness" set forth in this Section 1.01, (b) all Indebtedness of
another Person of the type referred to in subsection (a) above secured by (or
for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (c) all Guaranty
Obligations of such Person with respect to Indebtedness of another Person of the
type referred to in subsection (a) above, and (d) Indebtedness of the type
referred to in subsection (a) above of any partnership or unincorporated joint
venture in which such Person is general partner or for which such Person is
otherwise legally obligated or has a reasonable expectation of being liable.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis, subject to the terms of Section
1.03.
"GTCR Fund V" shall mean Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund V, L.P.,
a Delaware limited partnership, and GTCR Associates V, collectively.
"Government Acts" shall have the meaning assigned to such term in
Section 2.02(h).
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, commission, board, bureau, authority,
instrumentality or judicial or regulatory body or entity.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or having the economic effect of guaranteeing any Indebtedness of
any other Person in any manner, whether direct or indirect, and including any
obligation, whether or not contingent, (a) to purchase any such Indebtedness or
any Property constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet conditions of such
other Person (including keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (c) to lease or purchase Property,
15
securities or services primarily for the purpose of assuring the holder of such
Indebtedness against loss in respect thereof or (d) to otherwise assure or hold
harmless the holder of such Indebtedness against loss in respect thereof. For
purposes hereof, the amount of any Guaranty Obligation shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, of
the Indebtedness in respect of which such Guaranty Obligation is made, or if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guaranteeing Person in good faith.
"HIPAA" shall mean the Health Insurance Portability and Accountability
Act of 1996, as the same may be amended, modified or supplemented from time to
time, and any successor statute thereto, and any rules or regulations
promulgated from time to time thereunder.
"HIPAA Compliance Date" shall have the meaning assigned to such term
in Section 5.30.
"HIPAA Compliant" shall have the meaning assigned to such term in
Section 5.30.
"Inactive Subsidiary" shall mean Employee Relations Services, Inc,
which has, and shall not have, any assets or liabilities.
"Indebtedness" of any Person shall mean (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six (6) months of the
incurrence thereof) which would appear as liabilities on a balance sheet of such
Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person, (h) the principal portion of all obligations of such
Person under Capital Leases, (i) all obligations of such Person under Interest
Rate Protection Agreements or foreign currency exchange agreements, (j) the
maximum amount of all standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (k) all Disqualified Stock
of such Person and (l) the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer.
"Indemnitee" shall have the meaning assigned to such term in Section
10.05(b).
16
"Indemnified Liabilities" shall have the meaning assigned to such term
in Section 10.05(b).
"Information" shall have the meaning assigned to such term in Section
10.13.
"Insolvency or Liquidation Proceeding" shall have the meaning assigned
to such term in Section 3.14(b)(iii).
"Insurance Proceeds" shall mean all insurance proceeds (other than
business interruption insurance proceeds), damages, awards, claims and rights of
action with respect to any Casualty.
"Intellectual Property Security Agreement" shall have the meaning
specified in the Pledge and Security Agreement.
"Intellectual Property Collateral" shall have the meaning specified in
the Pledge and Security Agreement.
"Intellectual Property" shall have the meaning assigned to such term
in Section 5.17.
"Intercompany Notes" shall mean the promissory notes substantially in
the form of Exhibit B to the Perfection Certificate issued as contemplated by
subsection (g) of the definition of "Permitted Investments" set forth in this
Section 1.01.
"Interest Payment Date" shall mean (a) as to a Base Rate Loan, the
last Business Day of each March, June, September and December, (b) as to a
Eurodollar Rate Loan or a Quoted Rate Loan, the last day of each applicable
Interest Period for such Loan and, in addition, where the applicable Interest
Period for such Loan is greater than three months, the date three months from
the beginning of the Interest Period and each three months thereafter and (c) as
to all Loans, the Maturity Date of such Loans.
"Interest Period" shall mean (a) as to Eurodollar Rate Loans, a period
of one, two, three or six months' duration, as the Borrower may elect,
commencing in each case on the date of the borrowing (including Conversions and
Extensions thereof) and (b) as to any Quoted Rate Loan, a period commencing in
each case on the date of the borrowing and ending on the date agreed to by the
Borrower and the Swingline Lender in accordance with the provisions of Section
2.05(c) (such ending date in any event to be not more than fourteen (14)
Business Days from the date of borrowing); provided, however, (i) if any
Interest Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day (except that in the
case of Eurodollar Rate Loans where the next succeeding Business Day falls in
the next succeeding calendar month, then on the immediately preceding Business
Day), (ii) no Interest Period for any Loan shall extend beyond the Maturity Date
for such Loan, (iii) with regard to the Tranche B Term Loans, no Interest Period
shall extend beyond any Principal Amortization Payment Date for Tranche B Term
Loans unless the Tranche B Term Loans comprised of Base Rate Loans together with
the Tranche B Term Loans comprised of Eurodollar Rate Loans with Interest
Periods expiring prior to such Principal Amortization Payment Date, are at least
equal to the amount of the Principal Amortization Payment due for
17
such Tranche B Term Loans on such Principal Amortization Payment Date and (iv)
in the case of Eurodollar Rate Loans, where an Interest Period begins on a day
for which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Interest Rate Protection Agreement" shall mean any interest rate
swap, collar, cap or other arrangement requiring payments contingent upon
interest rates.
"Internal Control Event" shall mean (a) a material weakness in, or (b)
fraud that involves management or other employees who have a significant role
in, the Borrower's internal controls over financial reporting, but only in the
case of clause (a) above, if the same would reasonably be expected to result in
a material and adverse impact on the financial reporting or financial results of
the Borrower.
"Investment" in any Person shall mean (a) the acquisition (whether for
cash, Property, services, assumption of Indebtedness, securities or otherwise)
of assets constituting a business unit or a line of business, Capital Stock,
bonds, notes, debentures or other securities of such other Person or (b) any
deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including (i) any Guaranty Obligations
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person and (ii) any subordination of any claim
against such other Person to other Indebtedness of such other Person.
"Investor Group" shall mean, collectively, the Sponsors, Newstone
Capital Partners, LP (together with one or more affiliated funds), Alpinvest
Mezzanine Partners 2006 C.V., New York Life Investment Management Mezzanine
Partners, LP, NYLIM Mezzanine Partners Parallel Fund, LP, ▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"IPO" shall mean an underwritten initial public offering of the common
stock of the Borrower pursuant to an effective registration statement filed with
the SEC in accordance with the Securities Act of 1933.
"ISP" shall mean 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).
"Issuing Lender" shall mean Bank of America, in its capacity as the
issuer of Letters of Credit, and its successor or successors in such capacity.
"Joinder Agreement" shall mean a Joinder Agreement substantially in
the form of Exhibit D, executed and delivered by an Additional Subsidiary
Guarantor and an additional Subsidiary Grantor in accordance with the provisions
of Section 6.11, Section 6.12 and Section 6.13, as applicable. Upon the
execution and delivery by any Person of a Joinder Agreement, (a) such Person
shall become a Subsidiary Guarantor hereunder to the extent it is not a
Regulated Subsidiary, and each reference in this Agreement and any other Senior
Credit Document to a "Subsidiary Guarantor" shall also be deemed to include a
reference to such Person, (b) such
18
Person shall become and be a Grantor under the Pledge and Security Agreement
granting a pledge of the Capital Stock of any of its Subsidiaries, whether or
not such Subsidiaries are Regulated Subsidiaries, and such Person shall grant a
security interest in its own assets and properties to the extent such grantor is
not a Regulated Subsidiary, and (c) each reference to "this Agreement"
"hereunder" "hereof" or words of like import referring to this Agreement, shall
be a reference to this Agreement, or, as applicable, the Pledge and Security
Agreement or such other Senior Credit Documents, as supplemented by such Joinder
Agreement.
"Lender" shall mean any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their successors
and permitted assigns. Unless the context clearly indicates otherwise, the term
"Lenders" shall include the Swingline Lender and the Issuing Lender.
"Lender Hedging Agreement" shall mean any Interest Rate Protection
Agreement between the Borrower or any of its Subsidiaries and any Person that is
or was a Lender (or an Affiliate of a Lender) at the time it entered into such
Agreement which is entered into to limit exposure to floating rate indebtedness
of the Borrower and its Subsidiaries and not for speculative purposes.
"Letter of Credit" shall mean any standby letter of credit issued by
the Issuing Lender for the account of the Borrower in accordance with the terms
of Section 2.02 and shall include the Existing Letter of Credit.
"Letter of Credit Application" shall mean an application and agreement
for the issuance or amendment of a Letter of Credit in the form from time to
time used by the Issuing Lender.
"Letter of Credit Fee" shall have the meaning assigned to such term in
Section 3.05(b)(i).
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
easement, assignment, deposit arrangement, restriction, restrictive covenant,
lease, sublease, option, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code as adopted and in effect in the relevant jurisdiction or other
similar recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" shall mean, by Class, the Revolving Loans, the
Swingline Loans and/or the Tranche B Term Loans and, by Type, the Base Rate
Loans, the Eurodollar Rate Loans and the Quoted Rate Loans. Loans may be
designated by Class and/or by Type. As the context requires, a "Loan" of a
particular Class and/or Type refers to a portion of the total outstanding Loans
of such Class and/or Type as to which a single Interest Period is in effect.
"LOC Commitment" shall mean the commitment of the Issuing Lender to
issue Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to the
Revolving Commitment.
19
"LOC Obligations" shall mean the Borrower's reimbursement obligations
hereunder (actual or contingent) arising from drawings under Letters of Credit.
The amount of the LOC Obligations outstanding at any time equals the sum of (a)
the maximum aggregate amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such Letters of
Credit, plus (b) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed by the Borrower.
The LOC Obligations of any Lender at any time shall mean its Revolving
Commitment Percentage of the aggregate LOC Obligations at such time.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the condition (financial or otherwise), operations, business, assets,
liabilities (actual or contingent), historical or projected revenues or cash
flows, material relationships, management or prospects of the Consolidated
Parties taken as a whole (determined on a pro forma basis), including
Consolidated EBITDA, (b) the ability of any Credit Party or any Subsidiary
Grantor to perform any material obligation under the Senior Credit Documents to
which it is a party or (c) the legality, validity or binding effect of any
Senior Credit Document or (d) the Lien of any Senior Credit Document or a
material impairment of the rights, powers and remedies of the Administrative
Agent or any Lender under the Senior Credit Documents. In determining whether
any individual event or occurrence of the foregoing types would result in a
Material Adverse Effect, notwithstanding that a particular event or occurrence
does not itself have such effect, a Material Adverse Effect shall be deemed to
have occurred if the cumulative effect of such event or occurrence and all other
events or occurrences of the foregoing types which have occurred would result in
a Material Adverse Effect.
"Material Contracts" shall mean with respect to the Consolidated
Parties, (a) each credit agreement, capital lease or other agreement related to
any Indebtedness (other than the Senior Credit Documents) of any Consolidated
Party in an amount greater than $500,000 (including the Senior Subordinated Note
Purchase Documents), (b) each Interest Rate Protection Agreement to which any
Consolidated Party is a party, (c) each license of Material Intellectual
Property (excluding any license of shrink-wrap software or off-the-shelf
Intellectual Property), (d) each acquisition agreement for the purchase or sale
by any Consolidated Party of equity interests in any Person or other assets
where the aggregate consideration payable thereunder is greater than $500,000,
(e) any voting or shareholder's agreement related to the equity interest in any
Person to which any Consolidated Party is a party, and (f) any other contract to
which any such Person is a party involving aggregate consideration payable to or
by such Person of $5,000,000 or more in any year or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Consolidated Parties, taken as a whole.
"Material Intellectual Property" shall have the meaning assigned to
such term in Section 5.17.
"Material Licensed Intellectual Property" shall have the meaning
assigned to such term in Section 5.17.
20
"Material Owned Intellectual Property" shall have the meaning assigned
to such term in Section 5.17.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous, toxic, radioactive or explosive substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including
asbestos, polychlorinated biphenyls and urea formaldehyde insulation.
"Maturity Date" shall mean (a) as to the Revolving Loans and the
Swingline Loans, the Revolving Loan Termination Date, and (b) as to the Tranche
B Term Loans, the Tranche B Term Loan Maturity Date.
"Maximum Rate" shall have the meaning assigned to such term in Section
10.17.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
to such company in the business of rating securities.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan
as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" shall mean a Plan to which any Consolidated
Party or any ERISA Affiliate and at least one employer other than any
Consolidated Party or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" shall mean (a) with respect to any Asset
Disposition, (i) the gross amount of cash proceeds (including Insurance Proceeds
and Condemnation Awards in the case of any Casualty or Condemnation, except to
the extent and for so long as such Insurance Proceeds or Condemnation Awards are
Reinvestment Funds or unless such Insurance Proceeds or Condemnation Awards are
to be used for repair, restoration or replacement pursuant to plans approved by
the Required Lenders) actually paid to or actually received by any Consolidated
Party in respect of such Asset Disposition (including cash proceeds subsequently
received at any time in respect of such Asset Disposition from non-cash
consideration initially received or otherwise), less (ii) the sum of (A) the
amount, if any, of all taxes (other than income taxes and franchise taxes
incurred in lieu of income taxes) and the Borrower's good-faith best estimate of
all income taxes of the Borrower and its Subsidiaries (to the extent that such
amount shall have been set aside for the purpose of paying such taxes when due),
that are incurred in connection with such Asset Disposition and are payable by
any Consolidated Party, assuming such Asset Disposition was the only transaction
in which the Borrower and its Subsidiaries engaged during the relevant period
without giving effect to any carryforwards, carrybacks or credits, (B) the
amount, if any, of customary fees, brokerage fees, commissions, costs and other
expenses (other than those payable to any Consolidated Party or any Affiliate of
any such Person) that are incurred in connection with such Asset Disposition and
are payable by the seller or the transferor of the assets or Property to which
such Asset Disposition relates, but only to the extent not already deducted in
arriving at the amount referred to in clause (a)(i) above, (C) amounts escrowed
or set aside as a reserve in accordance with GAAP against any liabilities
associated with such Asset Disposition and (D) if applicable, the amount of
Indebtedness (other than
21
Indebtedness outstanding under the Senior Credit Documents) secured by a
Permitted Lien that has been repaid or refinanced as required in accordance with
its terms with the proceeds of such Asset Disposition; and (b) with respect to
any Equity Issuance or Debt Issuance, the gross amount of cash proceeds paid to
or received by any Consolidated Party in respect of such Equity Issuance or Debt
Issuance, as the case may be (including cash proceeds subsequently received at
any time in respect of such Equity Issuance or Debt Issuance from non-cash
consideration initially received or otherwise), net of underwriting discounts
and commissions or placement fees, investment banking fees, legal fees,
consulting fees, accounting fees and other customary fees and expenses incurred
by any Consolidated Party in connection therewith (other than those payable to
any Consolidated Party or any Affiliate of any such Person).
"Note" or "Notes" shall mean the Revolving Notes, the Swingline Notes
and/or the Tranche B Term Loan Notes, individually or collectively, as
appropriate.
"Notice of Borrowing" shall mean a written notice of borrowing in
substantially the form of Exhibit E, as required by Section 2.01(b)(i), Section
2.03(b), Section 2.04(b) or Section 2.05(b)(i).
"Notice of Extension/Conversion" shall mean the written notice of
Extension or Conversion in substantially the form of Exhibit F, as required by
Section 3.02.
"Operating Lease" shall mean, as applied to any Person, any lease
(including leases which may be terminated by the lessee at any time) of any
Property (whether real, personal or mixed) by such Person as lessee which is not
a Capital Lease.
"Other Taxes" shall have the meaning assigned to such term in Section
3.10(b).
"Participant" shall have the meaning assigned to such term in Section
10.03(d).
"Participation Interest" shall mean a purchase by a Lender with a
Revolving Commitment of a participation in Letters of Credit or LOC Obligations
as provided in Section 2.02, in Swingline Loans as provided in Section 2.05(c)
or of a Lender in any Loans or other obligations as provided in Section 3.13.
"Patriot Act" shall have the meaning assigned thereto in Section
10.16.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereof.
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"Perfection Certificate" shall have the meaning specified in the
Pledge and Security Agreement.
"Perfection Certificate Supplement" shall have the meaning specified
in the Pledge and Security Agreement.
22
"Permitted Acquisition" shall mean an acquisition by the Borrower or
any Subsidiary of the Borrower of the Capital Stock or all (or any substantial
part for which audited financial statements or other financial information
satisfactory to the Administrative Agent is available) of the Property (all of
which Property shall be located in the United States) of another Person
(including by merger or consolidation or by incorporation of a new Subsidiary)
for up to the fair market value of the Capital Stock or Property acquired;
provided that (a) the Capital Stock or Property acquired in such acquisition
relates to a line of business similar to the business of the Borrower or any of
its Subsidiaries engaged in on the Closing Date and if acquired by the Borrower
directly shall be a new Wholly-Owned Subsidiary of CompBenefits Dental or one of
CompBenefits Dental's Wholly-Owned Subsidiaries, (b) the representations and
warranties made by the Credit Parties and each Subsidiary Grantor in each Senior
Credit Document shall be true and correct in all material respects at and as of
the date of such acquisition (as if made on such date after giving effect to
such acquisition), except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects at and as of such
earlier date), (c) the Administrative Agent shall have received all items in
respect of the Capital Stock or Property acquired in such acquisition (and/or
the seller thereof) required to be delivered by the terms of Section 6.11,
Section 6.12 and Section 6.13, (d) in the case of an acquisition of the Capital
Stock of another Person, (i) except in the case of the incorporation of a new
Subsidiary, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such acquisition and (ii) the Capital
Stock acquired shall constitute 100% of the Total Voting Power and ownership
interest of the issuer thereof, (e) no Default or Event of Default shall have
occurred and be continuing immediately before or immediately after giving effect
to such acquisition and the Borrower shall have delivered to the Administrative
Agent in accordance with Section 7.04(d), a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such acquisition on a Pro Forma Basis,
the Borrower shall be in compliance with all of the financial covenants set
forth in Section 7.19 as of the last day of the most recent period of four
consecutive fiscal quarters of the Borrower which precedes or ends on the date
of such acquisition and with respect to which the Administrative Agent has
received the Required Financial Information, (f) after giving effect to such
acquisition, the Revolving Committed Amount shall be at least $5,000,000 greater
than the total outstanding Revolving Credit Facility Obligations and (g) the
aggregate cash consideration for all such acquisitions occurring after the
Closing Date shall not exceed $10,000,000 or (h) the Required Lenders shall have
consented to or agreed to waive the limitations of this Agreement with respect
to such acquisition, in each case, in writing and in accordance with the
provisions set forth in Section 10.06.
"Permitted Investments" shall mean Investments which consist of (a)
cash held in a deposit account with the Administrative Agent; (b)(i) Cash
Equivalents and (ii) securities issued directly by the United States of America
having maturities of not more than five (5) years from the date of acquisition
held by the Borrower or any of its Subsidiaries; (c) accounts receivable
created, acquired or made by the Borrower and its Subsidiaries in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; (d) Investments consisting of Capital Stock, obligations,
securities or other Property received by the Borrower and its Subsidiaries in
settlement of accounts receivable (created in the ordinary course of business)
from bankrupt account obligors; (e) Investments existing as of the Closing Date
and set forth in Schedule 1.01A; (f) advances to employees of the Borrower and
its Subsidiaries for moving and travel expenses in the ordinary course of
business consistent with past practices, not
23
to exceed $400,000 in the aggregate at any time outstanding; (g) Investments (i)
in the Borrower to the extent not otherwise prohibited by this Agreement or any
other Senior Credit Document so long as such Investments in the Borrower shall
be made in cash and shall consist of common stock (or additional capital
contributions in respect of outstanding common stock) or (ii) in any
Wholly-Owned Subsidiary of the Borrower to the extent such Investments are not
otherwise prohibited pursuant to this Agreement or any other Senior Credit
Document, so long as (A) all such Investments in Subsidiaries of the Borrower
shall be made by the Borrower or any other Subsidiary of the Borrower, and (B)
all such Investments in Subsidiaries of the Borrower shall (x) in the case of
the initial capitalization of any such Subsidiary, consist of common stock which
is issued for consideration at least equal to the par value of such shares and
which is pledged to the Administrative Agent on behalf of the Secured Parties or
(y) in all other cases, be evidenced by Intercompany Notes executed by a
Subsidiary of the Borrower who is a Subsidiary Guarantor pledged to the
Administrative Agent on behalf of the Secured Parties; (h) deposits made in the
ordinary course of business consistent with past practices to secure the
performance of leases; (i) loans by the Borrower to one or more officers or
other employees of the Borrower or its Subsidiaries in connection with such
officers' or employees' acquisition of shares of Capital Stock of the Borrower
or options to purchase shares of Capital Stock of the Borrower so long as no
cash is paid by the Borrower or any of the Borrower's Subsidiaries in connection
with the acquisition of any such Capital Stock and so long as the aggregate
amount of all such loans do not exceed $1,000,000; (j) in addition to
Investments permitted above, additional loans, advances and Investments to or in
a Person so long as the aggregate amount of all such loans, advances or
investments do not exceed $1,000,000 at any time; and (k) Permitted
Acquisitions.
"Permitted Liens" shall mean (a) Liens permitted pursuant to the
Senior Credit Documents; (b) Liens (other than Liens created or imposed under
ERISA) for taxes or other governmental charges, assessments or levies which are
not yet due or are being contested in good faith by appropriate proceedings
diligently pursued and for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account thereof); (c)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts which are not yet due and
payable (or, if due and payable, are unfiled and no other action has been taken
to enforce the same) or are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof); (d) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by any of the Subsidiaries of the Borrower in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of Indebtedness); (e) Liens in connection with
attachments or judgments (including judgment or appeal bonds), provided that the
judgments secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal (and shall have been
discharged within 30 days after the expiration of any such stay); (f) easements,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect,
24
impairing the use of the encumbered Property for its intended purposes; (g)
Liens on Property securing purchase money Indebtedness (including Capital
Leases) to the extent permitted under Section 7.01(c), provided that (i) any
such Indebtedness is incurred and such Lien attaches to such Property
concurrently with or within 90 days after the acquisition thereof (with recourse
only against such assets) and (ii) such Indebtedness is not secured by a Lien
on, and any such Lien does not extend to or cover, any other assets; (h) leases
or subleases granted to others not interfering in any material respect with the
business of the Borrower and its Subsidiaries; (i) 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 (excluding Capital Leases) permitted by this Agreement; (j) normal and
customary rights of set-off upon deposit accounts of cash in favor of the
depositary institution where the account is maintained; and (k) Liens existing
as of the Closing Date and set forth on Schedule 1.01B; provided that (i) no
such Lien shall at any time be extended to or cover any Property other than the
Property subject thereto on the Closing Date and (ii) the principal amount of
the Indebtedness or other obligations secured by such Liens shall not be
extended, renewed, refunded or refinanced on terms any less favorable to the
Borrower or its Subsidiaries; and (l) Liens of a target assumed in connection
with a Permitted Acquisition, provided that (i) such Liens were not created in
contemplation of such Permitted Acquisition, (ii) if such Permitted Acquisition
is effected by a merger or consolidation with a Credit Party or Subsidiary
Grantor, such Liens do not encumber any assets or property previously owned by
such Credit Party or Subsidiary Grantor, and (iii) if such Liens secure any
Indebtedness, such Indebtedness is otherwise permitted under Section 7.01(k).
"Permitted Tax Dividends" shall mean any distribution made by the
Subsidiaries of the Borrower to the Borrower for purposes of the Borrower paying
taxes on a consolidated basis, the amount of any such distribution to be equal
to the tax liability of the Borrower and its Subsidiaries as a single entity.
"Perpetual Preferred Stock" shall mean the Perpetual Preferred Stock,
par value $.01 per share, of the Borrower, issued in connection with the
conversion of the Convertible Preferred Stock in accordance with its terms.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority or any other entity.
"Personnel" shall have the meaning assigned to such term in Section
5.17.
"Platform" shall have the meaning set forth in the final paragraph of
Section 6.01.
"Plan" shall mean any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Pledge and Security Agreement" shall mean the Pledge and Security
Agreement dated as of the Closing Date in the form of Exhibit I to be executed
in favor of the Administrative Agent on behalf of the Secured Parties by the
Borrower and each of the
25
Subsidiary Grantors, as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"Preferred Stock", as applied to the Capital Stock of any Person,
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Capital Stock of any other class of such
Person.
"Prepayment Account" shall have the meaning assigned to such term in
Section 3.03(b)(vii).
"Principal Amortization Payment" shall mean a scheduled principal
payment on a Tranche B Term Loan pursuant to Section 2.03(d).
"Principal Amortization Payment Date" shall mean the date a Principal
Amortization Payment is due.
"Pro Forma Basis" shall mean that, for purposes of determining
compliance in respect of any transaction with each of the financial covenants
set forth in Section 7.19, such transaction (and any other transaction which
occurred during the relevant four fiscal quarter period) shall be deemed to have
occurred as of the first day of the most recent period of four consecutive
fiscal quarters of the Borrower which precedes or ends on the date of such
transaction with respect to which the Administrative Agent has received the
Required Financial Information. As used in this definition, "transaction" shall
mean (a) any incurrence or assumption of Indebtedness (and the concurrent
retirement of any other Indebtedness) as referred to in Section 7.01(f), (b) any
merger or consolidation as referred to in Section 7.04(b), (c) or (d), (c) any
Asset Disposition of a business or business unit as referred to in Section
7.05(b), or (d) any Permitted Acquisition as referred to in subsection (e) of
the definition of "Permitted Acquisition" set forth in this Section 1.01. In
connection with any calculation of the financial covenants set forth in Section
7.19 upon giving effect to a transaction (and any other transaction which
occurred during the relevant four fiscal quarter period) on a Pro Forma Basis
for purposes of Section 7.01(f), Section 7.04, Section 7.05 or the definition of
"Permitted Acquisition" set forth in this Section 1.01, as applicable:
(i) for purposes of any such calculation in respect of any
incurrence or assumption of Indebtedness as referred to in Section 7.01(f),
(A) if such Indebtedness has a floating or formula rate, the rate of
interest for such Indebtedness for the applicable period for purposes of
the calculations contemplated by this definition shall be determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of such calculations and (B) any other
Indebtedness which is retired concurrently with such incurrence or
assumption shall be excluded and deemed to have been retired as of the
first day of the relevant four fiscal-quarter period;
(ii) for purposes of any such calculation in respect of any Asset
Disposition of a business or business unit as referred to in Section 7.05,
(1) income statement items (whether positive or negative) attributable to
the Property disposed of in
26
such Asset Disposition shall be excluded to the extent relating to any
period prior to the date of such transaction and (2) any Indebtedness which
is retired in connection with such Asset Disposition shall be excluded and
deemed to have been retired as of the first day of the relevant four fiscal
quarter period; and
(iii) for purposes of any such calculation in respect of any
merger or consolidation as referred to in Section 7.04(b), (c) or (d) or
subsection (e) of the definition of "Permitted Acquisition" set forth in
this Section 1.01, (A) any Indebtedness incurred by the Borrower or any of
its Subsidiaries in connection with such transaction shall be deemed to
have been incurred as of the first day of the relevant four fiscal quarter
period (B) if such Indebtedness has a floating or formula rate, then the
rate of interest for such Indebtedness for the applicable period for
purposes of the calculations contemplated by this definition shall be
determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of such calculations
and (C) income statement items (whether positive or negative) attributable
to the Property acquired in such transaction or to the Investment
comprising such transaction, as applicable, shall be included as if such
transaction had occurred as of the first day of the relevant four fiscal
quarter period and shall be calculated (any such calculations to be
reasonably acceptable to the Administrative Agent) to include the income of
the acquired entities on a pro forma basis after giving effect to cost
savings resulting from employee terminations, facilities consolidations and
closing, standardization of employee benefits and compensation policies,
consolidation of property, casualty and other insurance coverage and
policies, standardization of sales and distribution methods, reductions in
taxes other than income taxes and other cost savings reasonably expected to
be realized from such acquisition.
"Pro Forma Compliance Certificate" shall mean a certificate of the
chief financial officer of the Borrower delivered to the Administrative Agent in
connection with (a) any incurrence or assumption of Indebtedness (and the
concurrent retirement of any other Indebtedness) as referred to in Section
7.01(f), (b) any merger or consolidation as referred to in Section 7.04(b), (c)
or (d), (c) any Asset Disposition as referred to in Section 7.05(a), or (d) any
Permitted Acquisition referred to in subsection (e) of the definition of
"Permitted Acquisition" set forth in this Section 1.01, as applicable, and
containing reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, the Fixed Charge Coverage Ratio,
the Total Leverage Ratio and the Senior Leverage Ratio as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which
precede or end on the date of the applicable transaction and with respect to
which the Administrative Agent shall have received the Required Financial
Information.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Public Lender" shall have the meaning set forth in the final
paragraph of Section 6.01.
"Put and Call Agreements" shall mean (a) the Put and Call Agreement,
dated April 13, 2006 by and between Newstone Capital Partners, LLC and Alpinvest
Partners
27
Mezzanine 2006 C.V., (b) the Put and Call Agreement, dated April 13, 2006 by and
between Newstone Capital Partners, LLC and New York Life Investment Management
Mezzanine Partners, LP and (c) the Put and Call Agreement, dated April 13, 2006
by and between Newstone Capital Partners, LLC and NYLIM Mezzanine Partners
Parallel Fund, LP.
"Qualifying Equity Issuance" shall mean (a) a new issuance after the
Closing Date by the Borrower of the Borrower Common Stock or the Convertible
Non-Voting Common Stock of the Borrower to the Investor Group or any other
Person for cash; provided that these issuances constitute Qualifying Equity
Issuances only to the extent that (i) no Default or Event of Default shall be
continuing after giving effect thereto, (ii) 100% of the net cash proceeds of
such issuance shall be immediately contributed by the Borrower to its
Subsidiaries, (iii) after giving effect thereto, no Change of Control shall have
occurred, (iv) such stock shall be issued in a private placement exempt from
registration under the Securities Act of 1933, (v) the proceeds thereof shall
not be used, directly or indirectly, to prepay any Indebtedness of the
Subsidiaries of the Borrower, except as permitted pursuant to Section 7.08
(other than Senior Credit Obligations), or to make any Restricted Payment,
except as permitted pursuant to Section 7.07, (vi) within five Business Days
after such issuance, the Borrower shall have delivered to the Administrative
Agent a certificate of a Responsible Officer of the Borrower attesting to the
satisfaction of the foregoing conditions, describing the uses of the proceeds of
such issuance and attesting that such uses shall not constitute a Default or an
Event of Default and (vii) such proceeds shall be used within 30 days after such
issuance as described in such certificate; and (b) an IPO by the Borrower;
provided that an IPO constitutes a Qualifying Equity Issuance only to the extent
that (i) no Default of Event of Default shall be continuing after giving effect
thereto; (ii) only up to $131,325,000 of the net cash proceeds from such IPO may
be utilized by the Borrower, with any excess to be utilized for mandatory
prepayments of the Senior Credit Obligations in accordance with Section 3.03(b);
(iii) only up to the first $131,325,000 of such net cash proceeds may be
utilized by the Borrower solely to redeem its Convertible Preferred Stock; (iv)
after giving effect thereto, no Change of Control shall have occurred; (v)
within five Business Days after such issuance, the Borrower shall have delivered
to the Administrative Agent a certificate of a Responsible Officer of the
Borrower attesting to the satisfaction of the foregoing conditions, confirming
the use of proceeds of such issuance and attesting that such uses shall not
constitute a Default or an Event of Default; and (vi) such proceeds shall be
used within 60 days after such issuance.
"Quoted Rate" shall mean, with respect to any Quoted Rate Loan, the
fixed percentage rate per annum offered by the Swingline Lender and accepted by
the Borrower with respect to such Loan as provided in accordance with the
provisions of Section 2.05(b)(i).
"Quoted Rate Loan" shall mean a Swingline Loan bearing interest at a
Quoted Rate.
"Register" shall have the meaning assigned to such term in Section
10.03(c).
"Registered Public Accounting Firm" shall have the meaning specified
in the Securities Laws and shall be independent of the Borrower as prescribed by
the Securities Laws.
28
"Registration Rights Agreement" shall mean the Amended and Restated
Registration Agreement dated as of July 12, 2000 among TAGTCR Acquisition, Inc.,
the Sponsors, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, the ▇▇▇▇▇▇▇ Fund,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Abbot
Capital Management, Wolverine Investment Pte Ltd, GE Financial Assurance
Holdings, Inc. and the Existing Subordinated Noteholder, as amended pursuant to
a consent, amendment and joinder agreement to the Registration Rights Agreement
and Shareholders Agreement dated as of April 13, 2006, and as may be further
amended or modified from time to time in accordance with the terms thereof and
hereof.
"Regulated Subsidiary" shall mean any Subsidiary of the Borrower which
is subject to regulation by state departments of insurance or some other
Governmental Authority such that such Subsidiary must apply statutory accounting
rules to the preparation of its financial statements filed with such
Governmental Authority.
"Reinvestment Funds" shall mean, with respect to any Insurance
Proceeds from a Casualty or any Condemnation Award from a Condemnation, that
portion of such funds as shall, according to a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent within 30 days
(and in any case prior to the receipt thereof by any Consolidated Party) after
the occurrence of such Casualty or Condemnation, be reinvested in the repair,
restoration or replacement of the Properties that were the subject of such
Casualty or Condemnation; provided that (a) the aggregate amount of such
proceeds with respect to any such event or series of related events shall not
exceed $5,000,000 without the prior written consent of the Required Lenders, (b)
such certificate shall be accompanied by evidence reasonably satisfactory to the
Administrative Agent that any Property subject to such Casualty or Condemnation
has been or will be repaired, restored or replaced to its condition immediately
prior to such Casualty or Condemnation, (c) from and after the date of delivery
of such certificate, the Borrower shall diligently proceed, and in all events
within 180 days to the extent such completion is commercially practicable within
180 days, complete the repair, restoration or replacement of the Properties that
were the subject of such Casualty or Condemnation as described in such
certificate, and (d) no Default or Event of Default shall have occurred and be
continuing; and provided further that, if any of the foregoing conditions shall
cease to be satisfied at any time, such funds shall no longer be deemed
Reinvestment Funds and such funds shall immediately be applied to prepayment of
the Senior Credit Obligations in accordance with Section 3.03(b).
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles containing any Materials of
Environmental Concern).
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
29
"Required Financial Information" shall mean, with respect to any
period, the financial statements of the Borrower with respect to such period
required under Section 6.01(a) and (b).
"Required Lenders" shall mean, as of any date of determination,
Lenders holding in the aggregate at least a majority of the sum of (a) the
Revolving Commitments (or, if the Revolving Commitments have been terminated in
whole, the outstanding Revolving Loans and Participation Interests in
outstanding Letters of Credit and Swingline Loans) and (b) the outstanding
Tranche B Term Loans; provided that the Commitment of, and the portion of the
aggregate amount of outstanding Senior Credit Obligations held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Required Revolving Lenders" shall mean, as of the date of
determination, Lenders holding in the aggregate at least a majority of the
Revolving Commitments (or, if the Revolving Commitments have been terminated in
whole, the outstanding Revolving Loans and Participation Interests in
outstanding Letters of Credit and Swingline Loans); provided that the Commitment
of, and the portion of the aggregate amount of the outstanding Revolving
Commitment of, and the portion of the outstanding Revolving Loans and
Participation Interests, in outstanding Letters of Credit and Swingline Loans,
held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making the determination of Required Revolving Lenders.
"Required Tranche B Term Lenders" shall mean Lenders holding in the
aggregate at least a majority of the outstanding Tranche B Term Loans, provided
that the portion of the aggregate amount of outstanding Tranche B Term Loans
held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making the determination of Required Tranche B Term Lenders.
"Requirement of Law" shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation, order, writ, judgment,
injunction, decree, permit or determination of an arbitrator or a court or other
Governmental Authority or other restriction imposed by any Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its Property is subject.
"Responsible Officer" shall mean, as to any Person, the president,
chief executive officer, chief operating officer, any financial officer, any
vice president or the general counsel of such Person (or, in the case of a
partnership, of the managing general partner of such Person).
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any class of Capital Stock of
any Consolidated Party, now or hereafter outstanding, (b) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (c) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire any class of Capital Stock of any
30
Consolidated Party, now or hereafter outstanding, and (d) any loan, advance, tax
sharing payment or indemnification payment to, or other investment in the
Borrower.
"Revolver Debt" shall mean the Senior Credit Obligations in respect of
the aggregate Revolving Commitments and/or Revolving Loans (including any
unreimbursed drawings under Letters of Credit that become Revolving Loans)
Letters of Credit, Swingline Loans and any Participation Interests in
outstanding Letters of Credit and Swingline Loans, as the same may be amended,
modified, restated, supplemented, extended, renewed or replaced from time to
time.
"Revolving Commitment" shall mean, with respect to any Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (a) to make Revolving Loans in accordance with the
provisions of Section 2.01(a), (b) to purchase Participation Interests in
Letters of Credit in accordance with the provisions of Section 2.02(c), and (c)
to purchase Participation Interests in Swingline Loans in accordance with the
provisions of Section 2.05(c).
"Revolving Commitment Percentage" shall mean, for any Lender, the
percentage, if any, identified as its Revolving Commitment Percentage on
Schedule 1.01C (or in the Assignment and Assumption pursuant to which such
Lender assumed its Revolving Commitment), as such percentage may be modified in
connection with any assignment made in accordance with the provisions of this
Agreement.
"Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.01(a).
"Revolving Credit Facility Obligations" shall mean, collectively,
Revolving Loans, Swingline Loans and LOC Obligations.
"Revolving Loan Termination Date" shall mean April 13, 2011.
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.01(a).
"Revolving Note" or "Revolving Notes" shall mean the promissory notes
of the Borrower in favor of each of the applicable Lenders evidencing the
Revolving Loans provided pursuant to Section 2.01(e), individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" shall mean any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Consolidated Party of any Property, whether owned by any
Consolidated Party as of the Closing
31
Date or later acquired, which has been or is to be sold or transferred by any
Consolidated Party to such Person or to any other Person from whom funds have
been, or are to be, advanced by such Person on the security of such Property.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" shall mean the Securities and Exchange Commission, or other
Governmental Authority succeeding to any of its principal functions.
"Securities Laws" shall mean 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 PCAOB as each of the foregoing may be amended and in
effect on any applicable date hereunder.
"Secured Cash Management Services Agreement" shall mean any Cash
Management Services Agreement that is entered into by and between any Credit
Party and any Cash Management Bank.
"Secured Lender Hedging Agreement" shall mean a Lender Hedging
Agreement permitted under this Agreement that is entered into by and between the
Borrower, any Credit Party and a Lender (or an Affiliate of a Lender).
"Secured Parties" shall mean (a) the Lenders holding Revolving
Commitments and Revolving Loans and the Lenders holding the Tranche B Term
Loans, (b) the Administrative Agent, in its capacity as such under each Senior
Credit Document to which it is a party, (c) each Lender or Affiliate thereof
with which the Borrower or any of its Subsidiaries enters into a Secured Lender
Hedging Agreement with respect to Tranche B Term Loans and the Revolving Loans
or a Secured Cash Management Services Agreement as permitted hereunder, in its
capacity as a party to such Secured Lender Hedging Agreement, (d) the
beneficiaries of each indemnification obligation relating to the Revolving
Commitment and Revolving Loans or Tranche B Term Loans undertaken by any
Consolidated Party under any Credit Document and (e) the successors and assigns
of the foregoing.
"Senior Credit Documents" shall mean a collective reference to this
Agreement, the Notes, each Letter of Credit Application, each Joinder Agreement,
the Collateral Documents, the Senior Subsidiaries Guarantee Agreement, the
Senior Indemnity, Subrogation and Contribution Agreement, the Intercompany Notes
and all other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto (in each case as the same may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time), and "Senior Credit Document" shall mean any one of them.
"Senior Credit Obligations" shall mean, without duplication, (a) all
advances to, and debts, liabilities, obligations, covenants and duties of any
Credit Party arising under this Agreement or any other Senior Credit Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including acquired by assumption), absolute or contingent, due or to
become due, now or hereafter existing, (including interest and fees accruing
after the occurrence of a Bankruptcy Event with respect to any Credit Party or
Affiliate thereof, regardless of whether such interest and fees are allowed or
allowable as claims under the Bankruptcy Code)
32
and (b) all liabilities and obligations, whenever arising, owing from the
Borrower or any of its Subsidiaries under any Secured Lender Hedging Agreement
and any Secured Cash Management Services Agreement. Without limiting the
generality of the foregoing, the Senior Credit Obligations under the Senior
Credit Documents shall include the obligation to pay principal, interest, Letter
of Credit fees, charges, expenses, fees, Attorney Costs and disbursements,
indemnities and other amounts payable under any of the Senior Credit Documents.
"Senior Indemnity, Subrogation and Contribution Agreement" shall mean
the Senior Indemnity, Subrogation and Contribution Agreement dated as of the
Closing Date in the form of Exhibit B to be executed by the Subsidiary
Guarantors, the Borrower and the Administrative Agent, as the same may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time.
"Senior Leverage Ratio" shall mean, as of any day, the ratio of (a)
the sum of Total Debt as of such day minus the aggregate principal amount of the
Senior Subordinated Notes (including any such obligations arising from a
permitted refinancing thereof) outstanding on such day to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of the Borrower ending
on, or most recently preceding, such day.
"Senior Preferred Stock" shall mean (a) the Series A Senior Preferred
Stock, par value $.01 per share, of the Borrower issued to Wolverine Investment
Pte Ltd and ▇▇▇▇▇▇ Capital 1330 Investors I, L.P. on June 17, 1999 and (b) the
Series B Senior Preferred Stock, par value $.01 per share, of the Borrower
issued to GE Financial Assurance Holdings, Inc. on June 17, 1999, and
subsequently transferred to GE Capital Equity Investments, Inc. on August 26,
2002, it being understood and agreed that no Senior Preferred Stock shall exist
after the Closing Date.
"Senior Subordinated Notes" shall mean those certain unsecured, 11.75%
senior subordinated notes issued by the Borrower to the Senior Subordinated Note
Holders which mature on April 13, 2016 pursuant to that certain Senior
Subordinated Note Purchase Agreement, as the same may be amended, modified or
supplemented from time to time in accordance with the terms of this Agreement.
"Senior Subordinated Note Holders" shall initially be Alpinvest
Partners Mezzanine 2006 C.V., New York Life Investment Management Mezzanine
Partners, LP and NYLIM Mezzanine Partners Parallel Fund, LP and other holders of
the Senior Subordinated Notes from time to time as permitted in the Senior
Subordinated Note Purchase Documents.
"Senior Subordinated Note Purchase Agreement" shall mean the Senior
Subordinated Note Purchase Agreement, dated as of the date hereof, among the
Credit Parties, the Subordinated Note Holders party thereto, and any other
persons party thereto, as such agreement may be amended, restated, supplemented
or otherwise modified from time to time in accordance with the terms of this
Agreement.
"Senior Subordinated Note Purchase Documents" shall mean the Senior
Subordinated Note Purchase Agreement, the Senior Subordinated Notes, the
Shareholders Agreement, the Registration Rights Agreement, the Stock Purchase
Agreements and the Put and Call Agreements, in each case as the same may be
amended, supplemented or modified from
33
time to time in accordance with the limitations set forth herein, and including
the exhibits and schedules thereto and all other agreements, documents and
instruments relating to issuance of the Senior Subordinated Notes and related
Capital Stock.
"Senior Subsidiaries Guarantee Agreement" shall mean the Senior
Subsidiaries Guarantee Agreement dated as of the Closing Date in the form of
Exhibit J to be executed in favor of the Administrative Agent by the Subsidiary
Guarantors, as the same may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time.
"Shareholders Agreement" shall mean the Amended and Restated
Stockholders Agreement dated as of July 12, 2000 among the Borrower, the
Sponsors, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, the ▇▇▇▇▇▇▇▇
Fund, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ Capital Management, Wolverine Investment Pte Ltd, GE Financial Assurance
Holdings, Inc. and the Existing Subordinated Noteholder, as amended pursuant to
a consent, amendment and joinder agreement to the Shareholders Agreement and
Registration Rights Agreement dated as of April 13, 2006, and as may be further
amended or modified from time to time in accordance with the terms thereof and
hereof.
"Single Employer Plan" shall mean any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Sole Lead Arranger" shall mean Banc of America Securities LLC, in its
capacity as sole and exclusive senior lead arranger and sole and exclusive
senior book running manager for the Senior Credit Documents.
"Solvent" or "Solvency" shall mean, with respect to any Person as of a
particular date, that on such date (a) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities as
they mature in their ordinary course, taking into account the timing of and
amounts of cash to be received by such Person and the timing of and amounts of
cash to be payable on or in respect of debts and liabilities of such Person, (c)
such Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the assets of such Person on a going concern basis
is greater than the total amount of its debt and liabilities, including
contingent liabilities, of such Person and (e) the present fair salable value of
the assets of such Person on a going concern basis is not less than the amount
that will be required to pay the probable liability of such Person on its debts
and liabilities as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual
34
or matured liability. In computing the amount of assets at any time, the
Person's assets shall include rights of indemnity and contribution.
"Sponsor Group" shall mean the Sponsors and certain of their
respective Affiliates.
"Sponsors" shall mean, collectively, TA Associates, GTCR Fund V,
Nautic Partners LLC and NMS Capital, L.P.
"Stock Option Plan" shall mean the CompDent Corporation Stock Option
adopted by the Board of Directors of CompDent Corporation (n/k/a CompBenefits
Corporation) on June 17, 1999, August 20, 2003, and August 25, 2004, which is
now referred to as the CompBenefits Corporation Amended and Restated Stock
Option Plan.
"Stock Purchase Agreements" shall mean Stock Purchase Agreements dated
as of April 13, 2006, by and between each of Alpinevest Partners Mezzanine 2006
C.V., New York Life Investment Management Mezzanine Partners, LP and NYLIM
Mezzanine Partners Parallel Fund, LP, and (a) Golder, Thoma, ▇▇▇▇▇▇▇, Raunder
Fund V, L.P. and GTCR Associates V, L.P. and (b) Wolverine Investment Pte Ltd,
respectively.
"Subsidiary" shall mean, as to any Person, (a) any corporation more
than 50% of whose Capital Stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association, joint
venture, limited liability company or other business entity in which such Person
directly or indirectly through Subsidiaries has more than 50% of the equity
interests at any time.
"Subsidiary Grantor" shall mean each Subsidiary Guarantor and other
Domestic Subsidiary of the Borrower on the Closing Date, and each Additional
Subsidiary Guarantor and additional Domestic Subsidiary which may thereafter
execute a Joinder Agreement, together with their successors and permitted
assigns, and "Subsidiary Grantor" shall mean any one of them.
"Subsidiary Guarantors" shall mean each of the Domestic Subsidiaries
of the Borrower on the Closing Date which is not a Regulated Subsidiary, and
each Additional Subsidiary Guarantor which may thereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and "Subsidiary
Guarantor" shall mean any one of them.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Loans pursuant to Section 2.05.
"Swingline Lender" shall mean Bank of America, in its capacity as the
maker of Swingline Loans, and its successor or successors in such capacity.
"Swingline Loans" shall have the meaning assigned to such term in
Section 2.05(a).
35
"Swingline Note" shall mean the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans provided pursuant
to Section 2.05(e), as such promissory note may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"TA/Associates" shall mean TA/Advent VIII L.P., a Delaware limited
partnership, Advent Atlantic and Pacific III L.P., TA Executives Fund LLC and TA
Investors LLC, collectively.
"Taxes" shall have the meaning assigned to such term in Section 3.10.
"Total Debt" shall mean, as of any day, the total amount of Funded
Indebtedness of the Borrower and its Consolidated Subsidiaries on a consolidated
basis as of such day.
"Total Leverage Ratio" shall mean, as of any day, the ratio of (a)
Total Debt as of such day to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ending on, or most recently
preceding, such day for which financial statements have been delivered under
Section 6.01(a) or (b).
"Total Voting Power" with respect to any Person on any date shall mean
the total number of votes which may be cast in the election of directors of such
Person at any meeting of stockholders of such Person if all securities entitled
to vote in the election of directors of such Person (on a fully diluted basis,
assuming the exercise, conversion or exchange of all rights, warrants, options
and securities outstanding on such date which are or may thereafter become
exercisable for, exchangeable for or convertible into, such voting securities)
were present and voted at such meeting (other than votes that may be cast only
upon the happening of a contingency).
"Tranche B Term Debt" shall mean the Senior Credit Obligations in
respect of the aggregate Tranche B Term Loans, as the same may be amended,
modified, restated, supplemented, extended, renewed or replaced from time to
time.
"Tranche B Term Loan" shall have the meaning assigned to such term in
Section 2.03(a).
"Tranche B Term Loan Commitment" shall mean, with respect to any
Lender, the commitment of such Lender to make a Tranche B Term Loan on the
Closing Date (and shall include all of the Tranche B term loans outstanding
under the Existing Credit Agreement which are continued and remain outstanding
as Tranche B Term Loans under this Agreement) in a principal amount equal to
such Lender's Tranche B Term Loan Commitment Percentage of the Tranche B Term
Loan Committed Amount.
"Tranche B Term Loan Commitment Percentage" shall mean, for any
Lender, the percentage, if any, identified as its Tranche B Term Loan Commitment
Percentage on Schedule 1.01C.
"Tranche B Term Loan Committed Amount" shall have the meaning assigned
to such term in Section 2.03(a).
36
"Tranche B Term Loan Maturity Date" shall mean April 12, 2012.
"Tranche B Term Loan Note" or "Tranche B Term Loan Notes" shall mean
the promissory notes of the Borrower in favor of each of the applicable Lenders
evidencing the Tranche B Term Loans provided pursuant to Section 2.03(f),
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time.
"Transaction" shall mean collectively, (a) the refinancing of the
credit facilities under the Existing Credit Agreement, (b) the execution and
delivery of the Senior Credit Documents and the Senior Subordinated Note
Purchase Documents by the parties thereto and the initial funding of the loans
hereunder and thereunder, (c) the prepayment of all Existing Subordinated Notes
of CompBenefits Dental in a principal amount of no more than $25 million and
termination of the Existing Subordinated Debt Agreements, (d) the redemption of
all the Senior Preferred Stock of the Borrower in an aggregate amount of no more
than $57.3 million, and execution and delivery of documents evidencing such
redemption and the termination of all documents related to the Senior Preferred
Stock, (e) the payment of fees and expenses incurred in connection with the
Transaction, (f) the amendment, consent and joinder to the Registration Rights
Agreement and Shareholders Agreement and (g) the consummation of all the other
transactions contemplated by the Transaction Documents.
"Transaction Documents" shall mean the Senior Credit Documents, the
Senior Subordinated Note Purchase Documents, the documents evidencing the
payment in full of the Existing Subordinated Notes of CompBenefits Dental, the
termination of the Existing Subordinated Debt Agreements, the amendment consent
and joinder to the Registration Rights Agreement and the Shareholders Agreement,
and the documents evidencing the redemption of all the Senior Preferred Stock
and the termination of all documents related to the Senior Preferred Stock.
"Type", with respect to a Loan, refers to whether such Loan is a
Eurodollar Rate Loan, Base Rate Loan or Quoted Rate Loan.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time.
"Unused Revolving Committed Amount" shall mean, for any period, the
amount by which (a) the then applicable Revolving Committed Amount exceeds (b)
the daily average sum for such period of (i) the aggregate principal amount of
all outstanding Revolving Loans plus (ii) the aggregate principal amount of all
outstanding LOC Obligations. For the avoidance of doubt, in calculating the
Unused Revolving Committed Amount, no deduction shall be made on account of
outstanding Swingline Loans.
"Waiver Agreement" shall have the meaning specified in the Pledge and
Security Agreement.
"Wholly-Owned Subsidiary" of any Person shall mean any Subsidiary 100%
of whose Capital Stock (on a fully diluted basis) is at the time owned by such
Person directly or indirectly through other Wholly-Owned Subsidiaries.
37
SECTION 1.02 COMPUTATION OF TIME PERIODS. For purposes of computation
of periods of time hereunder, the word "from" shall mean "from and including"
and the words "to" and "until" each shall mean "to but excluding."
SECTION 1.03 ACCOUNTING TERMS. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 6.01 (or, prior to the delivery of the first financial statements
pursuant to Section 6.01, consistent with the financial statements as at
December 31, 2005); provided, however, that if (i) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto after the Closing Date or (ii) the Administrative Agent or the
Required Lenders shall so object in writing within 90 days after delivery of
such financial statements, then such calculations shall be made, at the option
of the Borrower, on a basis consistent with either (i) the most recent financial
statements delivered by the Borrower to the Lenders as to which no such
objection shall have been made or (ii) GAAP as then in effect. Notwithstanding
anything to the contrary herein, the parties hereto acknowledge and agree that,
for purposes of all calculations made under the financial covenants set forth in
Section 7.19 (including, without limitation, for purposes of the definitions of
"Applicable Percentage" and "Pro Forma Basis" set forth in Section 1.01), income
statement items (whether positive or negative) attributable to any Person or
Property acquired in any Permitted Acquisition shall, to the extent not
otherwise included in such income statement items for the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP or in accordance
with any defined terms set forth in Section 1.01, be included to the extent
relating to any period applicable in such calculations and pro forma adjustments
may be included to the extent such adjustments give effect to items that are (x)
directly attributable to a Permitted Acquisition, (y) expected to continue to be
applicable to the Borrower and its Subsidiaries and (z) factually supportable.
SECTION 1.04 TERMS GENERALLY.
(a) The definitions in Section 1.01 shall apply equally to both 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". Unless otherwise expressly
provided herein, the word "day" means a calendar day.
(b) Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including this
Agreement, any organization document and any definition incorporated by
reference in another document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified and, in the case of any such agreement,
instrument or
38
document relating to any Indebtedness, together with any other agreement or
agreements pursuant to which such Indebtedness may be refinanced, restructured,
renewed, extended, refunded or replaced, in each case, in whole or in part
(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
permitted under this Agreement, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Senior Credit
Document, shall be construed to refer to such Senior Credit Document in its
entirety and not to any particular provision thereof, (iv) all references in a
Senior Credit Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
such Senior Credit Document, (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.
(c) 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."
ARTICLE II
COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01 REVOLVING LOANS.
(a) Revolving Commitment. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein, each
Lender with a Revolving Commitment severally agrees to make available to the
Borrower such Lender's Revolving Commitment Percentage of revolving credit loans
requested by the Borrower in Dollars ("Revolving Loans") from time to time from
the Closing Date until the Revolving Loan Termination Date, or such earlier date
as the Revolving Commitments shall have been terminated as provided herein for
the purposes hereinafter set forth; provided, however, that the sum of the
aggregate outstanding Revolving Credit Facility Obligations shall not at any
time exceed FIFTEEN MILLION DOLLARS ($15,000,000) (as such aggregate maximum
amount may be reduced from time to time as provided in Section 3.04, the
"Revolving Committed Amount"); provided, further, with regard to each Lender
with a Revolving Commitment individually, that such Lender's outstanding
Revolving Loans plus Participation Interests in outstanding LOC Obligations plus
Participation Interests in outstanding Swingline Loans shall not at any time
exceed such Lender's Revolving Commitment Percentage of the Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar Rate Loans,
or a combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however, that the
Revolving Loans outstanding at any time shall consist of no more than six (6)
separate Eurodollar Rate Loans. For purposes hereof, Eurodollar Rate Loans with
different Interest Periods shall be considered as separate Eurodollar Rate
Loans, even if they begin on the same date, although borrowings of Eurodollar
Rate Loans of any Class may, in accordance with the provisions
39
hereof, be combined through Extensions or Conversions at the end of existing
Interest Periods to constitute a single new Eurodollar Rate Loan of such Class
with the same Interest Period. Revolving Loans hereunder may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephonic notice promptly confirmed
in writing) to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day prior to the date of
the requested borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in the case of
Eurodollar Rate Loans. Each such request for borrowing shall be irrevocable
and shall specify (A) that a Revolving Loan is requested, (B) the date of
the requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Rate Loans or a combination
thereof, and (E) if Eurodollar Rate Loans are requested, the Interest
Period(s) therefor. If the Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period, in the case of a
Eurodollar Rate Loan, then such notice shall be deemed to be a request for
an Interest Period of one month or (II) the Type of Revolving Loan
requested, then such notice shall be deemed to be a request for a Base Rate
Loan hereunder. Promptly upon receipt of each Notice of Borrowing pursuant
to this Section 2.01(b)(i), the Administrative Agent shall notify each
affected Lender with a Revolving Commitment of the contents thereof and
each such Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each (A) Eurodollar Rate Loan that
comprises part of the Revolving Loans shall be in a minimum aggregate
principal amount (for the applicable Lenders with Revolving Credit
Commitments, collectively) of $1,000,000 and integral multiples of $100,000
in excess thereof (or the then remaining amount of the Revolving Committed
Amount, if less) and (B) Base Rate Loan that comprises part of the
Revolving Loans shall be in a minimum aggregate principal amount (for the
applicable Lenders with Revolving Commitments, collectively) of $1,000,000
and integral multiples of $100,000 in excess thereof (or the then remaining
amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender with a Revolving Commitment will make
its Revolving Commitment Percentage of each Revolving Loan borrowing
available to the Administrative Agent for the account of the Borrower at
the Administrative Agent's Office, or in such other manner as the
Administrative Agent may designate in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent by crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders with Revolving
Commitments and in like funds as received by the Administrative Agent.
40
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Revolving Loan Termination Date, unless
accelerated sooner pursuant to Section 8.02.
(d) Interest. Subject to the provisions of Section 3.01:
(i) Base Rate Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Rate Loans. During such periods as Revolving
Loans shall be comprised in whole or in part of Eurodollar Rate Loans, such
Eurodollar Rate Loans shall bear interest at a per annum rate equal to the
Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (and at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender with a
Revolving Commitment shall be evidenced by a duly executed promissory note of
the Borrower to any Lender requesting a promissory note in substantially the
form of Exhibit K and in a principal amount equal to such Lender's Revolving
Commitment Percentage of the Revolving Committed Amount.
SECTION 2.02 LETTERS OF CREDIT.
(a) Issuance. Subject to the terms and conditions hereof and of the
Letter of Credit Applications, if any, and any other terms and conditions which
the Issuing Lender may reasonably require and in reliance upon the agreements of
the other Lenders with Revolving Commitments set forth in this Section 2.02, the
Issuing Lender agrees to issue, and each Lender with a Revolving Commitment
severally agrees to participate on the terms set forth in this Section 2.02 in
the issuance by the Issuing Lender of, Letters of Credit in Dollars from time to
time from the Closing Date until the Revolving Loan Termination Date as the
Borrower may request, in a form acceptable to the Issuing Lender; provided,
however, that (i) the LOC Obligations outstanding shall not at any time exceed
the Revolving Committed Amount at such time and (ii) the sum of the aggregate
outstanding Revolving Credit Facility Obligations shall not at any time exceed
the Revolving Committed Amount. No Letter of Credit shall (x) have an original
expiry date more than one year from the date of issuance unless cash
collateralized by cash deposits in a manner reasonably satisfactory to the
Administrative Agent or (y) as originally issued or as extended, have an expiry
date extending beyond the Revolving Loan Termination Date. The issuance date of
each Letter of Credit shall each be a Business Day. The Existing Letter of
Credit shall be deemed to have been issued pursuant hereto, and from and after
the Closing Date shall be subject to and governed by the terms and conditions
hereof.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance. The Administrative
Agent will, at least quarterly and more frequently upon request, disseminate to
each of the affected Lenders a detailed report specifying the Letters of Credit
which are then issued and outstanding and any activity with respect thereto
41
which may have occurred since the date of the most recent prior report, and
including therein, among other things, the beneficiary, the face amount and the
expiry date, as well as any payments or expirations which may have occurred.
(c) Participation. Each Lender with a Revolving Commitment, upon
issuance of a Letter of Credit, shall be deemed to have purchased without
recourse from the Issuing Lender a Participation Interest in such Letter of
Credit and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its Revolving Commitment Percentage
of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume and be obligated to pay to the Issuing
Lender and discharge when due its Revolving Commitment Percentage of the
obligations arising under such Letter of Credit. Without limiting the scope and
nature of each such Lender's Participation Interest in any Letter of Credit, to
the extent that the Issuing Lender has not been reimbursed as required hereunder
or under any such Letter of Credit, each Lender with a Revolving Commitment
shall pay to the Issuing Lender its Revolving Commitment Percentage of such
unreimbursed drawing pursuant to subsection (d) below. The obligation of each
Lender with a Revolving Commitment to so reimburse the Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event, except to the
extent such reimbursement obligation is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from the Issuing
Lender's gross negligence or willful misconduct. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent. The Borrower promises to reimburse the Issuing Lender on
the day of drawing under any Letter of Credit (either with the proceeds of a
Revolving Loan obtained as provided in subsection (e) below or with funds from
other sources) in same day funds. Unless the Borrower shall immediately notify
the Issuing Lender that the Borrower intends to reimburse the Issuing Lender for
such drawing from other sources of funds, the Borrower shall be deemed to have
requested that the Lenders with Revolving Commitments make a Revolving Loan as
provided in subsection (e) below in the amount of the drawing on the related
Letter of Credit and the proceeds of such Loan will be used to reimburse the
Issuing Lender for such drawing. If the Borrower has notified the Issuing Lender
that the Borrower intends to reimburse the Issuing Lender for such drawing from
other sources of funds and shall fail to reimburse the Issuing Lender as
provided hereinabove, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Adjusted Base Rate for Revolving Loans
plus 2%. The Borrower's reimbursement obligations hereunder shall be absolute
and unconditional under all circumstances irrespective of any rights of set-off,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Agent-Related Parties, the Lenders with Revolving
Commitments, the beneficiary of the Letter of Credit drawn upon or any other
Person, including any defense based on any failure of the Borrower or any other
Credit Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit, except to the extent such
reimbursement obligation is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Person's gross negligence
or willful misconduct. The Administrative Agent will promptly notify the other
affected Lenders
42
with Revolving Commitments of the amount of any unreimbursed drawing and each
Lender with a Revolving Commitment shall promptly pay to the Administrative
Agent for the account of the Issuing Lender, in Dollars and in immediately
available funds, the amount of such Lender's Revolving Commitment Percentage of
such unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Lender from the Administrative Agent if such notice is received
at or before 2:00 P.M. (Charlotte, North Carolina time) and otherwise such
payment shall be made at or before 12:00 Noon (Charlotte, North Carolina time)
on the Business Day next succeeding the day such notice is received. If such
Lender with a Revolving Commitment does not pay such amount to the Issuing
Lender through the Administrative Agent in full upon such request, such Lender
with a Revolving Commitment shall, on demand, pay to the Administrative Agent
for the account of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Lender with a Revolving
Commitment pays such amount to the Issuing Lender in full at a rate per annum
equal to, if paid within two (2) Business Days of the date that such Lender with
a Revolving Commitment is required to make payment of such amount pursuant to
the preceding sentence, the Federal Funds Rate and, if paid thereafter, the Base
Rate. The obligation of each Lender with a Revolving Commitment to make such
payment to the Issuing Lender, and the right of the Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever, shall be satisfied without regard to the termination of
this Agreement or the Commitments hereunder, the existence of a Default or Event
of Default or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever, except to the extent such reimbursement obligation is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the Issuing Lender's gross negligence or willful misconduct.
Simultaneously with the making of each such payment by a Lender with a Revolving
Commitment to the Issuing Lender, such Lender shall, automatically and without
any further action on the part of the Issuing Lender or such Lender, acquire a
Participation Interest in an amount equal to such payment (excluding the portion
of such payment constituting interest owing to the Issuing Lender) in the
unreimbursed drawn portion of the related Letter of Credit, in the interest on
the LOC Obligations in respect thereof, and shall have a claim against the
Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan advance
to reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the affected Lenders that a Revolving Loan has been requested or
deemed requested by the Borrower to be made in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan advance comprised of Base Rate
Loans shall be immediately made to the Borrower by all Lenders (notwithstanding
any termination of the Commitments pursuant to Section 8.02) pro rata based on
the respective Revolving Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
8.02) and the proceeds thereof shall be paid directly to the Issuing Lender for
application to the related LOC Obligations. Each such Lender with a Revolving
Commitment hereby irrevocably agrees to make its Revolving Commitment Percentage
of each such Revolving Loan immediately upon any such request or deemed request
in the amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.02 are then satisfied, (iii)
whether a Default or an Event of
43
Default then exists, (iv) failure of any such request or deemed request for a
Revolving Loan to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (vi) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such borrowing.
In the event that any Revolving Loan cannot for any reason be made on the date
otherwise required above (including as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower or any other
Credit Party or Subsidiary Grantor), then each such Lender with a Revolving
Commitment hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Issuing Lender such Participation Interests in the outstanding LOC Obligations
as shall be necessary to cause each such Lender with a Revolving Commitment to
share in such LOC Obligations ratably based upon the respective Revolving
Commitment Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 8.02); provided that at the
time any purchase of Participation Interests pursuant to this sentence is
actually made, the purchasing Lender with a Revolving Commitment shall be
required to pay to the Issuing Lender, to the extent not paid to the Issuing
Lender by the Borrower in accordance with the terms of subsection (d) above,
interest on the principal amount of Participation Interests purchased for each
day from and including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such Participation Interests,
at the rate equal to, if paid within two (2) Business Days of the date as of
which the Revolving Loan advance was required, the Federal Funds Rate, and, if
paid thereafter, the Base Rate.
(f) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Applicability of ISP. Unless otherwise expressly agreed by the
Issuing Lender and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to the Existing Letter of Credit), the rules of the
ISP shall apply to each Letter of Credit.
(h) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.02,
the Borrower hereby agrees to pay, and protect, indemnify and save each
Lender with a Revolving Commitment harmless from and against, any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorney fees) that such Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of such Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Borrower and the Lenders with Revolving
Commitments (including the Issuing Lender), the Borrower shall assume all
risks of the
44
acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. No Lender with a Revolving Commitment (including the Issuing
Lender) shall be responsible: (A) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be written; (D) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (E) for any consequences arising
from causes beyond the control of such Lender with a Revolving Commitment,
including any Government Acts. None of the above shall affect, impair, or
prevent the vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Lender
with a Revolving Commitment (including the Issuing Lender) under or in
connection with any Letter of Credit or the related certificates, if taken
or omitted in good faith, shall not put such Lender under any resulting
liability to the Borrower or any other Credit Party or Subsidiary Grantor.
It is the intention of the parties that this Agreement shall be construed
and applied to protect and indemnify each Lender with a Revolving
Commitment (including the Issuing Lender) against any and all risks
involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower (on behalf of itself and each of the other
Credit Parties and Subsidiary Grantors), including any and all Government
Acts. No Lender with a Revolving Commitment (including the Issuing Lender)
shall, in any way, be liable for any failure by such Lender with a
Revolving Commitment or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause beyond the
control of such Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. No act or omission of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the Lenders with
Revolving Commitments (including the Issuing Lender) to enforce any right,
power or benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify any
Lender with a Revolving Commitment (including the Issuing Lender) in
respect of any liability incurred by such Lender (A) arising solely out of
the gross negligence or willful misconduct of such Lender with a Revolving
Commitment, as determined by a court of competent jurisdiction, or (B)
caused by such Lender's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment
45
is prohibited by any law, regulation, court order or decree or such failure
to pay is a result of any Government Act.
(i) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders with
Revolving Commitments are only those expressly set forth in this Agreement and
that the Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 4.02 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 2.02 shall
be deemed to prejudice the right of any Lender with a Revolving Commitment to
recover from the Issuing Lender any amounts made available by such Lender to the
Issuing Lender pursuant to this Section 2.02 in the event that it is determined
by a court of competent jurisdiction that the payment with respect to a Letter
of Credit constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(j) Conflict with Letter of Credit Applications. In the event of any
conflict between this Agreement and any Letter of Credit Application, this
Agreement shall control.
(k) Cash Collateral. In the event that the Borrower is required
pursuant to the terms of this Agreement or any other Senior Credit Document to
cash collateralize any LOC Obligations, the Borrower shall deposit in an account
with the Administrative Agent an amount in cash equal to 100% of such LOC
Obligations. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the LOC Obligations. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. The Administrative Agent will,
at the request of the Borrower, invest amounts deposited in such account in Cash
Equivalents; provided, however, that (i) amounts deposited in such account in
connection with any prepayment of Eurodollar Rate Loans of any Class shall be
invested in Cash Equivalents that mature prior to the last day of the applicable
Interest Periods of the Eurodollar Rate Loans of such Class to be prepaid, (ii)
the Administrative Agent shall not be required to make any investment that, in
its sole judgment, would require or cause the Administrative Agent to be in, or
would result in any, violation of any law, statute, rule or regulation, (iii)
such Cash Equivalents shall be subjected to a first priority perfected security
interest in favor of the Administrative Agent and (iv) if an Event of Default
shall have occurred and be continuing, the selection of such Cash Equivalents
shall be in the sole discretion of the Administrative Agent. The Borrower shall
indemnify the Administrative Agent for any losses relating to such investments
in Cash Equivalents. Other than any interest or profits earned on such
investments, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Lender
immediately for drawings under Letters of Credit and, if the maturity of the
Loans has been accelerated, to satisfy the LOC Obligations. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived. If the Borrower is required to provide an amount of
cash collateral hereunder pursuant to Section 3.03(b)(i), such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower upon demand;
provided that, after giving effect to such return, (i) the sum of the aggregate
amount of outstanding Revolving Credit Facility Obligations would not
46
exceed the aggregate Revolving Committed Amount and (ii) no Default or Event of
Default shall have occurred and be continuing. If the Borrower is required to
deposit an amount of cash collateral hereunder pursuant to Section 3.03(b)(ii),
(iii), (iv) or (v) interest or profits thereon (to the extent not applied as
aforesaid) shall be returned to the Borrower after the full amount of such
deposit has been applied by the Administrative Agent to reimburse the Issuing
Lender for drawings under Letters of Credit. The Borrower hereby pledges and
assigns to the Administrative Agent, for its benefit and the benefit of the
Lenders with Revolving Commitments, the cash collateral account established
hereunder (and all monies and investments held therein) to secure the payment
and performance of the LOC Obligations and any indemnities or other obligations
in this Section 2.02(k).
SECTION 2.03 TRANCHE B TERM LOANS.
(a) Tranche B Term Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth herein
each Lender severally agrees to make available to the Borrower on the Closing
Date such Lender's Tranche B Term Loan Commitment Percentage of a term loan
(including all of the tranche B term loans outstanding under the Existing Credit
Agreement which are continued and remain outstanding as Tranche B Term Loans
under this Agreement) in Dollars (the "Tranche B Term Loan" of such Lender) in
the aggregate principal amount of ONE HUNDRED FIFTY MILLION ($150,000,000) (the
"Tranche B Term Loan Committed Amount") for the purposes hereinafter set forth.
The Tranche B Term Loans may consist of Base Rate Loans or Eurodollar Rate
Loans, or a combination thereof, as the Borrower may request; provided, however,
that the Tranche B Term Loans outstanding at any time shall consist of no more
than six (6) separate Eurodollar Rate Loans. For purposes hereof, Eurodollar
Rate Loans with different Interest Periods shall be considered as separate
Eurodollar Rate Loans, even if they begin on the same date, although borrowings
of Eurodollar Rate Loans of any Class may, in accordance with the provisions
hereof, be combined through Extensions or Conversions at the end of existing
Interest Periods to constitute a single new Eurodollar Rate Loan of such Class
with the same Interest Period. Amounts repaid or prepaid on the Tranche B Term
Loans may not be reborrowed.
(b) Borrowing Procedures. The Borrower shall submit an appropriate
Notice of Borrowing to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Closing Date, with respect to the
portion of the Tranche B Term Loans initially consisting of Base Rate Loans, or
on the third Business Day prior to the Closing Date, with respect to the portion
of the Tranche B Term Loans initially consisting of one or more Eurodollar Rate
Loans, which Notice of Borrowing shall be irrevocable and shall specify (i) that
the funding of the Tranche B Term Loans is requested and (ii) whether the
funding of the Tranche B Term Loans shall be comprised of Base Rate Loans,
Eurodollar Rate Loans or a combination thereof, and if Eurodollar Rate Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail to
deliver such Notice of Borrowing to the Administrative Agent by 11:00 A.M.
(Charlotte, North Carolina time) on the third Business Day prior to the Closing
Date, then the full amount of the Tranche B Term Loans shall be disbursed on the
Closing Date as a Base Rate Loan. Each Lender shall make its Tranche B Term Loan
Commitment Percentage of the Tranche B Term Loan Committed Amount available to
the Administrative Agent for the account of the Borrower at the Administrative
Agent's Office by 1:00 P.M. (Charlotte, North Carolina time) on the Closing Date
in Dollars and in funds immediately available to the Administrative Agent.
47
(c) Minimum Amounts. Each (A) Eurodollar Rate Loan that comprises part
of the Tranche B Term Loans shall be in a minimum aggregate principal amount
(for the applicable Lenders, collectively) of $2,000,000 and integral multiples
of $125,000 in excess thereof (or the then remaining principal balance of the
Tranche B Term Loans, if less) and (B) Base Rate Loan that comprises part of the
Tranche B Term Loans shall be in a minimum aggregate principal amount (for the
applicable Lenders, collectively) of $1,000,000 and integral multiples of
$100,000 in excess thereof (or the then remaining principal balance of the
Tranche B Term Loans, if less).
(d) Repayment of Tranche B Term Loans. The principal amount of the
Tranche B Term Loans shall be repaid in twenty-three (23) consecutive quarterly
installments with the remaining principal balance due on the Tranche B Term Loan
Maturity Date as follows, subject to adjustment as provided in Section 3.03 and
unless accelerated sooner pursuant to Section 8.02:
48
PRINCIPAL AMORTIZATION TRANCHE B TERM LOAN
PAYMENT DATES PRINCIPAL AMORTIZATION PAYMENT
---------------------- ------------------------------
June 30, 2006 $ 937,500
September 30, 2006 $ 937,500
December 31, 2006 $ 937,500
March 31, 2007 $ 937,500
June 30, 2007 $ 937,500
September 30, 2007 $ 937,500
December 31, 2007 $ 937,500
March 31, 2008 $ 937,500
June 30, 2008 $ 1,875,000
September 30, 2008 $ 1,875,000
December 31, 2008 $ 1,875,000
March 31, 2009 $ 1,875,000
June 30, 2009 $ 3,750,000
September 30, 2009 $ 3,750,000
December 31, 2009 $ 3,750,000
March 31, 2010 $ 3,750,000
June 30, 2010 $ 7,500,000
September 30, 2010 $ 7,500,000
December 31, 2010 $ 7,500,000
March 31, 2011 $ 7,500,000
June 30, 2011 $22,500,000
September 30, 2011 $22,500,000
December 31, 2011 $22,500,000
Tranche B Term Loan Maturity Date $22,500,000
49
(e) Interest. Subject to the provisions of Section 3.01:
(i) Base Rate Loans. During such periods as the Tranche B Term
Loans shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Rate Loans. During such periods as the Tranche B
Term Loans shall be comprised in whole or in part of Eurodollar Rate Loans,
such Eurodollar Rate Loans shall bear interest at a per annum rate equal to
the Adjusted Eurodollar Rate.
Interest on the Tranche B Term Loans shall be payable in arrears on each
applicable Interest Payment Date (and at such other times as may be specified
herein).
(f) Tranche B Term Loan Notes. The Tranche B Term Loan made by each
Lender shall be evidenced by a duly executed promissory note of the Borrower to
any Lender requesting a promissory note in substantially the form of Exhibit L
and in a principal amount equal to (i) in the case of any such note issued on
the Closing Date, such Lender's Tranche B Term Loan Commitment Percentage of the
Tranche B Term Loan Committed Amount and (ii) in the case of any such note
issued after the Closing Date, the Tranche B Term Loans evidenced thereby at the
time of issuance.
SECTION 2.04 [INTENTIONALLY OMITTED.]
SECTION 2.05 SWINGLINE LOANS.
(a) Swingline Commitment. Subject to the terms and conditions hereof
and in reliance upon the agreements of the other Lenders with Revolving
Commitments set forth in this Section 2.05, the Swingline Lender agrees to make
certain revolving credit loans in Dollars ("Swingline Loans") to the Borrower
from time to time from the Closing Date until the Revolving Loan Termination
Date or such earlier date as the Revolving Commitments shall have been
terminated as provided herein for the purposes hereinafter set forth; provided
that (i) the aggregate principal amount of Swingline Loans shall not at any time
exceed the Revolving Committed Amount at such time, (ii) with regard to each
Lender with a Revolving Commitment individually, such Lender's outstanding
Revolving Loans plus Participation Interests in outstanding Swingline Loans plus
Participation Interests in outstanding LOC Obligations shall not at any time
exceed such Lender's Revolving Committed Amount and (iii) with regard to the
Lenders with Revolving Commitments collectively, the sum of the aggregate
outstanding Revolving Credit Facility Obligations shall not at any time exceed
the Revolving Committed Amount. Swingline Loans hereunder shall be made as Base
Rate Loans or Quoted Rate Loans, as the Borrower may request in accordance with
the provisions of this Section 2.05, and may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. The Borrower shall request a Swingline
Loan borrowing by submitting an appropriate Notice of Borrowing to the
Swingline Lender not later than 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day of
50
the requested Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is requested, (B) the
date of the requested Swingline Loan advance (which shall be a Business
Day) and (C) the principal amount of the Swingline Loan advance requested.
Each Swingline Loan shall be made as a Base Rate Loan or a Quoted Rate Loan
as agreed to by the Swingline Lender and the Borrower at the time of such
Swingline Loan and (subject to subsection (c) below) shall have such
maturity date (and, in the case of a Quoted Rate Loan, such Interest
Period) as agreed to by the Swingline Lender and the Borrower upon receipt
by the Swingline Lender of any such notice from the Borrower. The Swingline
Lender shall initiate the transfer of funds representing the Swingline Loan
advance to the Borrower by 1:00 P.M. (Charlotte, North Carolina time) on
the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan shall be in a minimum
aggregate principal amount of $100,000 and integral multiples of $100,000
in excess thereof (or the then remaining amount of the Revolving Committed
Amount, if less); provided, however, the Swingline Lender shall make
Swingline Loans in lesser amounts in the event the proceeds of any such
Swingline Loans are used to reimburse Letters of Credit pursuant to Section
2.02(d).
(c) Repayment. The principal amount of all Swingline Loans shall be
due and payable on the earlier of (A) the maturity date agreed to by the
Swingline Lender and the Borrower with respect to such Swingline Loan (which
maturity date shall not be a date more than fourteen (14) Business Days from the
date of advance (or deemed date of advance) thereof) or (B) the Revolving Loan
Termination Date. If the Borrower shall fail to make provision for repayment of
a Swingline Loan (including any Quoted Rate Loan) prior to the maturity date
therefor, the Borrower shall be deemed to have requested another Swingline Loan
which is a Base Rate Loan with a maturity fourteen (14) Business Days thereafter
in the amount of the Swingline Loans coming due. The Swingline Lender may, at
any time, in its sole discretion, by written notice to the Borrower and the
Lenders with Revolving Commitments, demand repayment of its Swingline Loans by
way of a Revolving Loan advance, in which case the Borrower shall be deemed to
have requested a Revolving Loan advance comprised solely of Base Rate Loans in
the aggregate principal amount of such Swingline Loans; provided, however, that
such a demand shall be deemed to have been given one Business Day prior to the
Revolving Loan Termination Date and on the date of the occurrence of any Event
of Default described in Section 8.01 and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the provisions of
Section 8.02. Each Lender with a Revolving Commitment hereby irrevocably agrees
to make its Revolving Commitment Percentage of each such Revolving Loan in the
amount, in the manner and on the date specified in the preceding sentence,
regardless of (I) the failure of the amount of such borrowing to comply with the
minimum amount for advances of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Section 4.02 are then satisfied, (III)
whether a Default or Event of Default then exists, (IV) the failure of any such
request or deemed request for a Revolving Loan to be made by the time otherwise
required hereunder, (V) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (VI) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including as
a result of the commencement of a proceeding
51
under the Bankruptcy Code with respect to the Borrower or any other Credit Party
or Subsidiary Grantor), then each Lender with a Revolving Commitment hereby
agrees that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such Participation Interest in the outstanding Swingline Loans as shall
be necessary to cause each such Lender to share in such Swingline Loans ratably
based upon its Revolving Commitment Percentage (determined before giving effect
to any termination of the Commitments pursuant to Section 8.02), provided that
(A) all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective Participation
Interest is funded and (B) if such Participation Interest is not funded on the
date such purchase is deemed to have occurred, the purchasing Lender shall pay
to the Swingline Lender interest on the unfunded portion of such Participation
Interest at a rate per annum equal to, if paid within two (2) Business Days of
the date such purchase is deemed to have occurred, the Federal Funds Rate, and
thereafter, the Base Rate.
(d) Interest on Swingline Loans. Subject to the provisions of Section
3.01:
(i) Base Rate Loans. Each Swingline Loan that is a Base Rate Loan
shall bear interest at a per annum rate equal to the Adjusted Base Rate for
Swingline Loans.
(ii) Quoted Rate Loans. Each Swingline Loan that is a Quoted Rate
Loan shall bear interest at a per annum rate equal to the Quoted Rate
applicable thereto.
Interest on Swingline Loans shall be payable in arrears on each applicable
Interest Payment Date (and at such other times as may be specified herein).
(e) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed Swingline Note of the Borrower in favor of the Swingline Lender, if the
Swingline Lender so requests, in an original principal amount equal to the
Revolving Committed Amount and substantially in the form of Exhibit M.
ARTICLE III
OTHER PROVISIONS RELATING TO LOANS
SECTION 3.01 DEFAULT RATE. Upon the occurrence, and during the
continuance, of an Event of Default as described in Section 8.01(a), the
principal of and, to the extent permitted by law, interest on the Loans and any
other amounts owing hereunder or under the other Senior Credit Documents shall
bear interest, payable on demand, at a per annum rate equal to (a) in the case
of principal of any Loan, the rate applicable to such Loan during such period
pursuant to Article II plus 2.00%, (b) in the case of interest on any Loan, the
Adjusted Base Rate for such Class of Loan during such period plus 2.00%, (c) in
the case of Letter of Credit Fees, the rate applicable to such Letter of Credit
plus 2.00%, and (d) in the case of any other amount, the Adjusted Base Rate for
Revolving Loans during such period plus 2.00%.
SECTION 3.02 EXTENSION AND CONVERSION. Subject to the terms of Section
4.02, the Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another type; provided,
52
however, that (i) except pursuant to Section 3.08, Eurodollar Rate Loans may be
converted into Base Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Rate Loans may be Extended, and Base Rate
Loans may be Converted into Eurodollar Rate Loans, only if no Default or Event
of Default is in existence on the date of Extension or Conversion, (iii) Loans
Extended as, or Converted into, Eurodollar Rate Loans shall be subject to the
terms of the definition of "Interest Period" set forth in Section 1.01 and shall
be in such minimum amounts as provided in, with respect to Revolving Loans,
Section 2.01(b)(ii), or, with respect to Tranche B Term Loans, Section 2.03(c),
(iv) the total number of Eurodollar Rate Loans of any Class outstanding at any
time shall be no greater than the maximum number provided in, with respect to
Revolving Loans, Section 2.01(a), and, with respect to Tranche B Term Loans,
Section 2.03(a) (it being understood that, for purposes hereof, Eurodollar Rate
Loans with different Interest Periods shall be considered as separate Eurodollar
Rate Loans, even if they begin on the same date, although borrowings of any
Class may, in accordance with the provisions hereof, be combined through
Extensions or Conversions at the end of existing Interest Periods to constitute
a single new Eurodollar Rate Loan of such Class with the same Interest Period),
(v) any request for Extension or Conversion of a Eurodollar Rate Loan which
shall fail to specify an Interest Period shall be deemed to be a request for an
Interest Period of one month, and (vi) Swingline Loans may not be extended or
converted pursuant to this Section 3.02. Each such Extension or Conversion shall
be effected by the Borrower by giving a Notice of Extension/Conversion (or
telephonic notice promptly confirmed in writing) to the Administrative Agent's
Office, or at such other office as the Administrative Agent may designate in
writing, prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business
Day of, in the case of the conversion of a Eurodollar Rate Loan into a Base Rate
Loan, and on the third Business Day prior to, in the case of the Extension of a
Eurodollar Rate Loan as, or Conversion of a Base Rate Loan into, a Eurodollar
Rate Loan, the date of the proposed Extension or Conversion, specifying the date
of the proposed Extension or Conversion, the Loans to be so Extended or
Converted, the Types of Loans into which such Loans are to be Converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for Extension or Conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
subsections (b), (c), (d), (e) and (f) of Section 4.02. In the event the
Borrower fails to request an Extension or Conversion of any Eurodollar Rate Loan
in accordance with this Section 3.02 or any such requested Conversion or
Extension is not permitted by this Agreement, then such Eurodollar Rate Loan
shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Administrative Agent shall give each
affected Lender notice as promptly as practicable of any such proposed Extension
or Conversion of any Loan. Each Extension or Conversion shall be effected by
each Lender and the Administrative Agent by recording for the account of such
Lender the new Loan of such Lender resulting from such Extension or Conversion
and reducing the Loan (or portion thereof) of such Lender being Extended or
Converted by an equivalent principal amount. Accrued interest on a Loan (or
portion thereof) being Extended or Converted shall be paid by the Borrower (A)
with respect to any Base Rate Loan being Converted to a Eurodollar Rate Loan, on
the last day of the first fiscal quarter of the Borrower ending on or after the
date of Conversion and (B) otherwise, on the date of Extension or Conversion.
53
SECTION 3.03 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Revolving Loans and Tranche B Term Loans in whole or in part from time to time,
in each case subject to Section 3.11, but otherwise without premium or penalty;
provided, however, that (i) each partial prepayment of Loans (except Swingline
Loans) shall be in a minimum principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof, and each partial prepayment of
Swingline Loans shall be in a minimum principal amount of $100,000; and (ii) the
Borrower shall have given prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent,
in the case of any Revolving Loan which is a Base Rate Loan or any Swingline
Loan which is a Base Rate Loan or a Quoted Rate Loan by 11:00 A.M. (Charlotte,
North Carolina time), on the date of prepayment, and, in the case of any other
Loan, by 10:00 A.M. (Charlotte, North Carolina time), at least three (3)
Business Days prior to the date of prepayment. Each notice of prepayment shall
specify the prepayment date, the principal amount to be prepaid, whether the
Loan to be prepaid is a Revolving Loan, a Swingline Loan or a Tranche B Term
Loan, whether the Loan to be prepaid is a Eurodollar Rate Loan, Base Rate Loan
or Quoted Rate Loan, and, in the case of a Eurodollar Rate Loan or a Quoted Rate
Loan, the Interest Period of such Loan. Each prepayment of the Tranche B Term
Loans shall be applied in the direct order of the remaining scheduled Principal
Amorization. Each notice of prepayment shall be irrevocable and shall commit the
Borrower to prepay such Loan by the amount stated therein on the date stated
therein. If the Borrower fails to specify the application of a voluntary
prepayment then such prepayment shall be applied first to the Swingline Loans,
then to the Revolving Loans, then to Participation Interests in Letters of
Credit and Swingline Loans to the extent such Participation Interests have been
funded, then to the Tranche B Term Loans (and in the case of the Tranche B Term
Loans in direct order of the remaining scheduled Principal Amortization Payments
thereof, and in each case, first to Base Rate Loans and Quoted Rate Loans and
then to Eurodollar Rate Loans in the direct order of Interest Period
maturities). All prepayments under this Section 3.03(a) shall be subject to
Section 3.11. All prepayments under this Section 3.03(a) shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time, the sum of the
aggregate amount of outstanding Revolving Credit Facility Obligations shall
exceed the Revolving Committed Amount at such time, the Borrower
immediately shall prepay the Swingline Loans, the Revolving Loans, and the
Participation Interests (as set forth in clause (vi)(A) below) and/or cash
collateralize the Letters of Credit comprised of the aggregate undrawn
amount of Letters of Credit, in an aggregate amount sufficient to eliminate
such excess. Any such cash collateral shall reduce the amount of
outstanding Revolving Credit Facility Obligations for purposes of
calculations of whether mandatory prepayments are required under this
Section 3.03(b)(i) only.
(ii) Excess Cash Flow. Within 90 days after the end of each
fiscal year of the Borrower (commencing with the fiscal year ending
December 31, 2006), the Borrower shall prepay the Loans and the
Participation Interests (as set forth in clause (vi)(C) below) and/or cash
collateralize the Letters of Credit comprised of the aggregate
54
undrawn amount of Letters of Credit in an amount equal to the sum of (A)
50% of the Excess Cash Flow for such prior fiscal year if the Total
Leverage Ratio is greater than 4.00 to 1.00 or (B) 25% of Excess Cash Flow
for the prior fiscal year if the Total Leverage Ratio is less than or equal
to 4.00 to 1.00; provided, however, that there shall be no mandatory
prepayment pursuant to this clause (ii) if the Total Leverage Ratio is less
than or equal to 2.75 to 1.00.
(iii) Asset Dispositions. Within 5 (five) Business Days of
receipt by any Consolidated Party of proceeds from any Asset Disposition
(other than any Excluded Asset Disposition), the Borrower shall prepay the
Loans and the Participation Interests (as set forth in clause (vi)(C)
below) and/or cash collateralize the Letters of Credit comprised of the
aggregate undrawn amount of Letters of Credit in an aggregate amount equal
to 100% of the Net Cash Proceeds of such Asset Disposition.
(iv) Debt Issuances. Within 5 (five) Business Days of receipt by
any Consolidated Party of proceeds from any Debt Issuance (other than any
Excluded Debt Issuance), the Borrower shall prepay the Loans and the
Participation Interests (as set forth in clause (vi)(C) below) and/or cash
collateralize the Letters of Credit comprised of the aggregate undrawn
amount of Letters of Credit in an aggregate amount equal to 100% of the Net
Cash Proceeds of such Debt Issuance.
(v) Issuances of Equity. Within 5 (five) Business Days of receipt
by any Consolidated Party of proceeds from any Equity Issuance (other than
any Excluded Equity Issuance), the Borrower shall prepay the Loans and the
Participation Interests (as set forth in clause (vi)(C) below) and/or cash
collateralize the Letters of Credit comprised of the aggregate undrawn
amount of Letters of Credit in an aggregate amount equal to 50% of the Net
Cash Proceeds of such Equity Issuance.
(vi) Application of Mandatory Prepayments. All amounts required
to be paid pursuant to this Section 3.03(b) shall be applied as follows:
(A) with respect to all amounts paid pursuant to Section
3.03(b)(i), to the Revolving Credit Facility Obligations. All amounts
allocated to Revolving Credit Facility Obligations as provided in this
subsection shall be applied, first, to Swingline Loans, until all
outstanding Swingline Loans have been repaid, second, to Revolving
Loans until all outstanding Revolving Loans have been repaid, third,
to Participation Interests in Letters of Credit and Swingline Loans to
the extent such Participation Interests have been funded, and fourth,
then, to cash collateralize that portion of the Letters of Credit
comprised of the aggregate undrawn amounts of Letters of Credit;
(B) with respect to all amounts paid pursuant to Section
3.03(b)(ii), (iii), (iv) or (v) to the Tranche B Term Loans (ratably
based on the remaining scheduled Principal Amortization Payments);
(C) in the event the Tranche B Term Loans have been paid in
full, with respect to all amounts paid pursuant to Section
3.03(b)(ii), (iii), (iv) or
55
(v), to the Revolving Credit Facility Obligations (with a
corresponding reduction in the Revolving Committed Amount pursuant to
Section 3.04(b)). All amounts allocated to Revolving Credit Facility
Obligations as provided in this subsection shall be applied, first, to
Swingline Loans, until all outstanding Swingline Loans have been
repaid, second, to Revolving Loans until all outstanding Revolving
Loans have been repaid, third, to Participation Interests in Letters
of Credit and Swingline Loans to the extent such Participation
Interests have been funded, and, fourth, then to cash collateralize
that portion of the Letters of Credit comprised of the aggregate
undrawn amounts of Letters of Credit;
(D) within the parameters of the applications set forth
above, the prepayment of Loans of any Class shall be applied first to
Base Rate Loans and Quoted Rate Loans and then, subject to clause
(viii) below, to Eurodollar Rate Loans in direct order of Interest
Period maturities; and
(E) all prepayments under this Section 3.03(b) shall be
subject to Section 3.11 and shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
(vii) Prepayment Accounts. At the option of the Borrower, any
amounts applied to prepay Eurodollar Rate Loans in accordance with clause
(vi) above shall be applied immediately to prepay Eurodollar Rate Loans of
such Class and/or shall be deposited in a separate Prepayment Account (as
defined below) for the Loans of such Class. The Administrative Agent shall
apply any cash deposited in the Prepayment Account for any Class of Loans
to prepay Eurodollar Rate Loans of such Class on the last day of their
respective Interest Periods (or, at the direction of the Borrower, on any
earlier date) until all outstanding Loans of such Class have been prepaid
or until all the allocable cash on deposit in the Prepayment Account for
such Class has been exhausted. For purposes of this Agreement, the term
"Prepayment Account" for any Class of Loans shall mean an account
established by the Borrower with the Administrative Agent and over which
the Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal for application in accordance
with this subsection. The Administrative Agent will, at the request of the
Borrower, invest amounts on deposit in the Prepayment Account for any Class
of Loans in Cash Equivalents that mature prior to the last day of the
applicable Interest Periods of the Eurodollar Rate Loans of such Class to
be prepaid; provided, however, that (i) the Administrative Agent shall not
be required to make any investment that, in its sole judgment, would
require or cause the Administrative Agent to be in, or would result in any,
violation of any law, statute, rule or regulation, (ii) such Cash
Equivalents shall be subjected to a first priority perfected security
interest in favor of the Administrative Agent and (iii) if an Event of
Default shall have occurred and be continuing, the selection of such Cash
Equivalents shall be in the sole discretion of the Administrative Agent.
The Borrower shall indemnify the Administrative Agent for any losses
relating to such investments in Cash Equivalents so that the amount
available to prepay Eurodollar Rate Loans on the last day of the applicable
Interest Periods is not less than the amount that would have been available
had no investments been made pursuant thereto. Other than any interest or
profits earned on such investments, the Prepayment Accounts shall not bear
interest. Interest or profits, if
56
any, on the investments in any Prepayment Account shall accumulate in such
Prepayment Account. If the maturity of the Loans has been accelerated
pursuant to Section 8.02, the Administrative Agent may, in its sole
discretion, apply all amounts on deposit in the Prepayment Account for any
Class of Loans to satisfy any of the Senior Credit Obligations related to
such Class of Loans. The Borrower hereby pledges and assigns to the
Administrative Agent, for its benefit on behalf of the Lenders, each
Prepayment Account established hereunder to secure the Senior Credit
Obligations related to any such Class of Loans.
(viii) Notice. The Borrower shall use all reasonable efforts to
give to the Administrative Agent and the Lenders at least five (5) Business
Days' prior written or telecopy notice of each and every event or
occurrence requiring a prepayment under Section 3.03(b)(ii), (iii), (iv) or
(v), including the amount of Net Cash Proceeds expected to be received
therefrom and the expected schedule for receiving such proceeds; provided,
however, that in the case of any prepayment event consisting of a Casualty
or Condemnation, the Borrower shall give such notice within five (5)
Business Days after the occurrence of such event.
SECTION 3.04 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole or in
part (in minimum aggregate amounts of $1,000,000 or in integral multiples of
$500,000 in excess thereof (or, if less, the full remaining amount of the then
applicable Revolving Committed Amount)) upon five (5) Business Days' prior
written or telecopy notice to the Administrative Agent; provided, however, no
such termination or reduction shall be made which would cause the sum at any
time of the aggregate outstanding Revolving Credit Facility Obligations to
exceed the Revolving Committed Amount as so terminated or reduced, unless,
concurrently with such termination or reduction, the Revolving Credit Facility
Obligations are repaid in accordance with Section 3.03(b)(i) to the extent
necessary to eliminate such excess. The Administrative Agent shall promptly
notify each affected Lender of the receipt by the Administrative Agent of any
notice from the Borrower pursuant to this Section 3.04(a).
(b) Mandatory Reductions. On any date that any Swingline Loans are
required to be prepaid, any Revolving Loans are required to be prepaid, any
Participation Interests (as set forth above) are required to be prepaid and/or
undrawn Letters of Credit are required to be cash collateralized pursuant to the
terms of Section 3.03(b)(ii), (iii), (iv) or (v) (or would be so required if any
Revolving Credit Facility Obligations were outstanding), the Revolving Committed
Amount shall be automatically and permanently reduced by the total amount of
such required prepayments and cash collateral (and, in the event that the amount
of any payment referred to in Section 3.03(b)(ii), (iii), (iv) or (v) which is
allocable to the Revolving Credit Facility Obligations exceeds the amount of all
outstanding Revolving Credit Facility Obligations, the Revolving Committed
Amount shall be further reduced by 100% of such excess).
(c) Termination. The Revolving Commitments of the Lenders, the
Swingline Commitment of the Swingline Lender and the LOC Commitment of the
Issuing Lender shall
57
automatically terminate on the Revolving Loan Termination Date. The Commitments
to make Tranche B Term Loans shall automatically terminate immediately after the
making of the Tranche B Term Loans that are made on the Closing Date and be
reduced to $0 on the Closing Date.
(d) General. The Borrower shall pay to the Administrative Agent for
the account of the Lenders in accordance with the terms of Section 3.05(a), on
the date of each termination or reduction of the Revolving Committed Amount, the
Commitment Fee accrued through the date of such termination or reduction on the
amount of the Revolving Committed Amount so terminated or reduced.
SECTION 3.05 FEES.
(a) Commitment Fee. In consideration of the Revolving Commitments of
the Lenders hereunder, the Borrower agrees to pay to the Administrative Agent
for the account of each Lender a fee (the "Commitment Fee") on such Lender's
Revolving Commitment Percentage of the Unused Revolving Committed Amount,
computed at a per annum rate for each day during the applicable Commitment Fee
Calculation Period at a rate equal to 0.50%. The Commitment Fee shall commence
to accrue on the Closing Date and shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date (and any date that the
Revolving Committed Amount is reduced as provided in Section 3.04(a) or (b) and
the Revolving Loan Termination Date) (each such quarter or portion thereof being
herein referred to as a "Commitment Fee Calculation Period").
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender, based on such Lender's
Revolving Commitment Percentage, a fee (the "Letter of Credit Fee") equal
to the Applicable Percentage for Revolving Loans which are Eurodollar Rate
Loans times the actual daily maximum amount available to be drawn under
each such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit). If there is any change in the
Applicable Percentage for Revolving Loans which are Eurodollar Rate Loans
during any quarter, the daily maximum amount of each Letter of Credit shall
be computed and multiplied by the Applicable Percentage for Revolving Loans
which are Eurodollar Rate Loans for each period during such quarter that
such Applicable Percentage was in effect. The Letter of Credit Fee shall be
(i) computed on a quarterly basis in arrears and (ii) due and payable on
the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of the
Letter of Credit, the expiry date of any such Letter of Credit and
thereafter on demand. Notwithstanding anything to the contrary contained
herein, while any Event of Default exists, all letter of credit fees shall
accrue at the default rate set forth in Section 3.01.
(ii) Fronting Fee and Other Fees. The Borrower shall pay directly
to the Issuing Lender for its own account a fronting fee (the "Fronting
Fee") with respect to
58
each Letter of Credit in the amounts and at the time specified in the Fee
Letter. In addition, the Borrower shall pay directly to the Issuing Bank
for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the Issuing
Bank relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.
(c) Other Fees. The Borrower agrees to pay to each of the
Administrative Agent or any Lender and their respective Affiliates, any other
fees payable to such party pursuant to any separate letter agreements related to
this Agreement, including, without limitation, pursuant to the Fee Letter.
SECTION 3.06 INCREASED COST AND REDUCED RETURN. (a) If, after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty or other charge with respect to any Eurodollar Rate Loans
or any Quoted Rate Loans, any of its Notes or its obligation to make
Eurodollar Rate Loans or any Quoted Rate Loans, or change the basis of
taxation of any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or any of its Notes in respect of any
Eurodollar Rate Loans or any Quoted Rate Loans (other than taxes imposed on
the overall net income of such Lender or such Applicable Lending Office);
(ii) shall impose, modify or deem applicable any reserve, special
deposit, assessment, compulsory loan or similar requirement (other than the
Eurodollar Reserve Percentage utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including any of the Commitments of
such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting
this Agreement or any of its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Extending, or
maintaining any Eurodollar Rate Loans or any Quoted Rate Loans or to reduce any
sum received or receivable by such Lender (or its Applicable Lending Office)
under this Agreement or any of its Notes with respect to any Eurodollar Rate
Loans or any Quoted Rate Loans, then the Borrower shall pay to such Lender
within 5 (five) Business Days of demand such amount or amounts as will
compensate such Lender for such increased cost or reduction; provided that the
Borrower shall have no obligation to the extent any such increased cost or
reduction was actually incurred more than 180 days
59
immediately preceding any such demand. If any Lender requests compensation by
the Borrower under this Section 3.06, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or Extend Loans of the Type with respect to which such compensation is
requested, or to Convert Loans of any other Type into Loans of such Type, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 3.09 shall be applicable); provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any Person controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such Person
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy and such
Lender's desired return on capital), then from time to time within 5 (five)
Business Days of demand the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction; provided
that the Borrower shall have no obligation to the extent any such reduction was
actually incurred more than 180 days immediately preceding any such demand,
provided that the date of such reduction was not due to any retroactive effect
of applicable law, rule or regulation or any change therein or in the
interpretation or administration thereof in which case, such 180 day period
shall be extended to include the period of retroactive effect thereof.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits, additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan;
provided the Borrower shall have received at least 15 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice.
(d) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 3.06 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
it. Any Lender claiming compensation under this Section 3.06 shall furnish to
the Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
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SECTION 3.07 LIMITATION ON TYPES OF LOANS. If on or prior to the first
day of any Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines in good faith (which
determination shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine in good faith (which determination
shall be conclusive) and notify the Administrative Agent that the Adjusted
Eurodollar Rate will not adequately and fairly reflect the cost to the Lenders
of funding Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make additional
Eurodollar Rate Loans, Extend Eurodollar Rate Loans or to Convert Base Rate
Loans into Eurodollar Rate Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Rate Loans,
either prepay such Loans or Convert such Loans into Base Rate Loans in
accordance with the terms of this Agreement.
SECTION 3.08 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Lender determines that any law, regulation or statute has made
it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its Applicable Lending Office to make, maintain, or
fund Eurodollar Rate Loans hereunder, or to determine or charge interest rates
based upon the Eurodollar Rate, then such Lender shall promptly notify the
Borrower thereof and such Lender's obligation to make or Extend Eurodollar Rate
Loans and to Convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended until such time as such Lender may again make, maintain and fund
Eurodollar Rate Loans (in which case the provisions of Section 3.09 shall be
applicable). Each Lender agrees to designate a different Applicable Lending
Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
SECTION 3.09 TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make Eurodollar Rate Loans or to Extend, or to Convert Base Rate Loans
into, Eurodollar Rate Loans shall be suspended pursuant to Section 3.06 or 3.08
hereof (Loans of such Type being herein called "Affected Loans" and such Type
being herein called the "Affected Type"), such Lender's Affected Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 3.08 hereof, on such earlier date as such Lender may specify
to the Borrower with a copy to the Administrative Agent), the Borrower shall pay
all accrued interest on the amount so Converted and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 3.06 or 3.08 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its Base
Rate Loans; and
61
(b) all Loans that would otherwise be made or Extended by such Lender
as Loans of the Affected Type shall be made or Extended instead as Base Rate
Loans, and all Loans of such Lender that would otherwise be Converted into Loans
of the Affected Type shall be Converted instead into (or shall remain as) Base
Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.06 or 3.08 hereof that gave
rise to the Conversion of such Lender's Affected Loans pursuant to this Section
3.09 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of a particular Class of the Affected Type and by such Lender are
held pro rata (as to principal amounts, Types, and Interest Periods) in
accordance with their respective Commitments of such Class.
SECTION 3.10 TAXES. (a) Subject to Section 10.10, any and all payments
by the Borrower to or for the account of the Administrative Agent or any Lender
under any Senior Credit Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of the Administrative
Agent and each Lender, all Excluded Taxes (all such taxes, other than Excluded
Taxes, duties, levies, imposts, deductions, fees, withholdings or similar
charges and liabilities being hereinafter referred to as "Taxes"). Subject to
Section 10.10, if the Borrower shall be required by any laws to deduct any Taxes
from or in respect of any sum payable under any Senior Credit Document to the
Administrative Agent or any Lender, (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 3.10), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Senior
Credit Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Senior Credit Document
(hereinafter referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay (i) any Taxes
or Other Taxes from or in respect of any sum payable under any Senior Credit
Document to the Administrative Agent or any Lender or (ii) Other Taxes from or
in respect of any sum payable under any Senior Credit Document to the
Administrative Agent, the Borrower shall also pay to the Administrative Agent or
such Lender, as the case may be, at the time interest is paid, such additional
amount that the Administrative Agent or such Lender specifies is necessary to
62
preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) that the Administrative Agent or such
Lender would have received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes, as applicable
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent or such
Lender, (ii) amounts payable under this Section 3.10 and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. Payment under this subsection (d) shall be made within 30 days after
the date the Lender or the Administrative Agent makes a demand therefor.
SECTION 3.11 COMPENSATION. Within 5 (five) Business Days of the
request of any Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense (including loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain such
Loan or from fees payable to terminate the deposits from which such funds were
obtained) incurred by it as a result of:
(a) any payment, prepayment, or Extension of a Eurodollar Rate Loan or
a Quoted Rate Loan for any reason (including the acceleration of the Loans
pursuant to Section 8.02) on a date other than the last day of the Interest
Period for such Loan;
(b) any failure by the Borrower for any reason (including the failure
of any condition precedent specified in Article IV to be satisfied) to borrow,
Convert, Extend or prepay a Eurodollar Rate Loan or a Quoted Rate Loan on the
date for such borrowing, Conversion, Extension or prepayment specified in the
relevant notice of borrowing, prepayment, Extension or Conversion under this
Agreement;
(c) the repayment of any Indebtedness outstanding on the Closing Date
under the Existing Credit Agreement that is not continued under this Agreement;
or
(d) any customary administrative fees charged by such Lender in
connection with the foregoing subsections (a) through (c).
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.11, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded. Any Lender claiming compensation
under this Section 3.06 shall furnish to the Borrower and the Administrative
Agent a statement setting forth the additional amount or amounts to be paid to
it hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender shall use any reasonable averaging and
attribution methods.
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SECTION 3.12 PRO RATA TREATMENT. Except to the extent otherwise
provided herein:
(a) Loans. Each Loan, each payment or prepayment of principal of any
Loan or reimbursement obligations arising from drawings under Letters of Credit,
each payment of interest on the Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Commitment Fees, each payment
of the Letter of Credit Fee, each reduction of the Revolving Committed Amount
and each Conversion or Extension of any Loan, shall be allocated pro rata among
the Lenders in a Class in accordance with the respective principal amounts of
their outstanding Loans and Participation Interests of the relevant Class.
(b) Advances. No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of any requested borrowing that such Lender does not
intend to make available to the Administrative Agent its ratable share of such
borrowing to be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on the date of
such borrowing, and the Administrative Agent in reliance upon such assumption,
may (in its sole discretion but without any obligation to do so) make available
to the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent shall
be able to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent at a per
annum rate equal to (i) from the Borrower, the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender,
if paid within two (2) Business Days of the date such corresponding amount was
made available by the Administrative Agent to the Borrower, the Federal Funds
Rate and, if paid thereafter, the Base Rate.
SECTION 3.13 SHARING OF PAYMENTS. The Lenders agree among themselves
that, in the event that any Lender shall obtain payment in respect of any Loan,
LOC Obligation or any other obligation owing to such Lender under this Agreement
through the exercise of a right of set-off, banker's lien or counterclaim, or
pursuant to a secured claim under Section 506 of the Bankruptcy Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means (whether voluntarily or involuntarily by
set-off or otherwise), in excess of its pro rata share of such payment as
provided for in this Agreement, such Lender shall promptly purchase from the
other Lenders a Participation Interest in such Loan, LOC Obligation or other
obligation in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Lenders
64
further agree among themselves that if payment to a Lender obtained by such
Lender through the exercise of a right of set-off, banker's lien, counterclaim
or other event as aforesaid shall be rescinded or must otherwise be restored,
each Lender which shall have shared the benefit of such payment shall, by
repurchase of a Participation Interest theretofore sold, return its share of
that benefit (together with its share of any accrued interest payable with
respect thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such a
Participation Interest pursuant to this Section 3.13 may, to the fullest extent
permitted by law, exercise all rights of payment, including set-off, banker's
lien or counterclaim, with respect to such Participation Interest as fully as if
such Lender were a holder of such Loan, LOC Obligations or other obligation in
the amount of such Participation Interest. Except as otherwise expressly
provided in this Agreement, if any Lender or the Administrative Agent shall fail
to remit to the Administrative Agent or any other Lender an amount payable by
such Lender or the Administrative Agent to the Administrative Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each day from the
date such amount is due until the date such amount is paid to the Administrative
Agent or such other Lender at a rate per annum equal to the Federal Funds Rate.
If under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a set-off to which this Section 3.13
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.13 to share in the benefits of any recovery on such
secured claim.
SECTION 3.14 PAYMENTS; ALLOCATION OF PAYMENTS. (a) Payments Generally.
Except as otherwise specifically provided herein, all payments hereunder shall
be made to the Administrative Agent in Dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any kind, at the
Administrative Agent's Office not later than 2:00 P.M. (Charlotte, North
Carolina time) on the date when due. Payments received after such time shall be
deemed to have been received on the next succeeding Business Day. The
Administrative Agent may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account of
the Borrower maintained with the Administrative Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment under this
Agreement, specify to the Administrative Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms of this Agreement, the
Administrative Agent shall distribute such payment to the Lenders in such manner
as the Administrative Agent may determine to be appropriate in respect of
obligations owing by the Borrower hereunder, subject to the terms hereof). The
Administrative Agent will distribute such payments to such Lenders, if any such
payment is received prior to 12:00 Noon (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such Business Day,
and otherwise the Administrative Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of Eurodollar Rate Loans, if the extension would cause the payment to
be made in the next following calendar month, then such payment shall instead be
made on the immediately preceding Business Day. Except as expressly provided
otherwise herein, all computations of
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interest and Fees shall be made on the basis of actual number of days elapsed
over a year of 360 days (or 365 or 366 days, as the case may be, in the case of
Base Rate Loans). Interest shall accrue from and include the date of borrowing,
but shall exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Agreement to the contrary, after the occurrence and
during the continuance of any Event of Default under Section 8.01(a) or after
the exercise of any of the remedies provided under Section 8.02 (or after the
occurrence of any Event of Default specified in Section 8.01(e) and the
automatic occurrence of the events specified in the first sentence of the final
paragraph in Section 8.02), all amounts collected or received by the
Administrative Agent on account of the Senior Credit Obligations, shall be
applied in the following order:
FIRST, to the payment of that portion of the Senior Credit Obligations
constituting fees, indemnities, costs and expenses (including Attorney
Costs and other amounts payable under Article III) payable to the
Administrative Agent in proportion to the amounts described in this clause
FIRST payable to them;
SECOND, to the payment of that portion of the Senior Credit Obligations
constituting fees, indemnities, costs and expenses (including Attorney
Costs and other amounts payable under Article III) payable to Lenders
holding the Tranche B Term Loans and Revolving Commitments and/or Revolving
Loans, Letters of Credit, Swingline Loans and Participation Interests in
outstanding Swingline Loans and Letters of Credit (to the extent such
Participation Interests have been funded), ratably among them in proportion
to the amounts described in this clause SECOND payable to them;
THIRD, to the payment of that portion of the Senior Credit Obligations
constituting unpaid interest on the Tranche B Term Loans, the Revolving
Loans (for purposes of clarification, including unreimbursed obligations
arising from drawings under Letters of Credit which have become Revolving
Loans), the Swingline Loans and Participation Interests in outstanding
Swingline Loans and Letters of Credit (to the extent such Participation
Interests have been funded), ratably to the Lenders holding such Senior
Credit Obligations in proportion to the respective amounts described in
this clause THIRD payable to them;
FOURTH, ratably (i) to the payment of that portion of the Senior Credit
Obligations constituting unpaid principal on the Tranche B Term Loans, the
Revolving Loans (for purposes of clarification, including unreimbursed
obligations arising from drawings under Letters of Credit which have become
Revolving Loans), the Swingline Loans and any Participation Interests in
outstanding Swingline Loans and Letters of Credit (to the extent such
Participation Interests have been funded), ratably to the Lenders holding
such Senior Credit Obligations in proportion to the respective amounts
described in this clause (i) to this clause FOURTH payable to them and (ii)
to payment of that portion of the Senior Credit Obligations constituting
amounts owing under or with respect to Secured Lender Hedging Agreements
and Secured Cash Management Agreements ratably among the Lender or
Affiliate thereof who entered into the
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Secured Lender Hedging Agreement and the Secured Cash Management Bank in
proportion to the respective amounts described in this clause "FOURTH" held
by them;
FIFTH, to the Administrative Agent for the account of the Issuing Lender,
to cash collateralize that portion of the Letters of Credit comprised of
the aggregate undrawn amount of Letters of Credit;
SIXTH, to all other amounts owing with respect to the Senior Credit
Obligations constituting the Tranche B Term Debt, Revolver Debt and any
remaining debt under Secured Lender Hedging Agreements and Secured Cash
Management Agreements which shall not have been paid pursuant to clauses
"FIRST" through "FIFTH" above, ratably among them in proportion to any such
amounts payable to them pursuant to this clause SIXTH; and
SEVENTH, the balance, if any after all the Senior Credit Obligations have
indefeasibly been paid in full, to the Borrower or as otherwise required by
law.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) to the extent that any amounts available for
distribution pursuant to clause FIFTH above are attributed to the issued but
undrawn Letters of Credit, such amounts shall be held by the Administrative
Agent in a cash collateral account pursuant to Section 2.02(k) and shall be
applied to satisfy drawings under the 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 Senior Credit Obligations, if any, in the order set forth above.
Notwithstanding the foregoing provisions of this Section 3.14(b), amounts on
deposit in a Prepayment Account for any Class of Loans upon the occurrence of
any Event of Default shall be applied, first, to pay Loans of such Class and,
second, after all the Loans of such Class have been paid in full, to the other
Senior Credit Obligations in the manner provided in this Section 3.14(b).
SECTION 3.15 EVIDENCE OF DEBT. (a) Each Lender shall maintain an
account or accounts evidencing each Loan made by such Lender to the Borrower
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Agreement. Each Lender will
make reasonable efforts to maintain the accuracy of its account or accounts and
to promptly update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.03(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the subaccounts
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referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Lender in
accordance with the terms hereof.
SECTION 3.16 ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES. In
the event at any time after the Closing Date (a) any Lender requests
compensation pursuant to Section 3.06, (b) any Lender delivers a notice
described in Section 3.08 or (c) the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority on account of any Lender
pursuant to Section 3.10, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 10.03), upon notice to such Lender and the Administrative Agent, require
such Lender to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 10.03), all of its interests,
rights and obligations under this Agreement to an Eligible Assignee that shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (A) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (B) no Event of Default shall have
occurred and be continuing and (C) the Borrower or such assignee shall have paid
to the affected Lender in immediately available funds an amount equal to the sum
of 100% of the principal of and interest accrued to the date of such payment on
the outstanding Loans of such Lender, respectively, plus all Fees and other
amounts accrued for the account of such Lender hereunder (including any amounts
under Section 3.06, 3.10 and Section 3.11); provided further that if prior to
any such assignment the circumstances or event that resulted in such Lender's
request or notice under Section 3.06 or 3.08 or demand for additional amounts
under Section 3.10, as the case may be, shall cease to exist or become
inapplicable for any reason or if such Lender shall waive its rights in respect
of such circumstances or event under Section 3.06, 3.08 or 3.10, as the case may
be, then such Lender shall not thereafter be required to make such assignment
hereunder.
SECTION 3.17 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, the Administrative Agent or such Lender shall use any
reasonable averaging and attribution methods.
SECTION 3.18 SURVIVAL. All of the Borrower's obligations under this
Article III shall survive termination of the Commitments and repayment of all
other Senior Credit Obligations hereunder.
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ARTICLE IV
CONDITIONS
SECTION 4.01 CLOSING CONDITIONS. The obligations of the Lenders to
make the initial Loans under this Agreement shall be subject to satisfaction of
the following conditions:
(a) Executed Senior Credit Documents. The Administrative Agent's
receipt of the following, each of which shall be originals or facsimiles
(followed promptly by delivery of originals), unless otherwise specified, each
properly executed by a duly authorized officer of the signing Credit Party and
Subsidiary Grantor, and each in form and substance satisfactory to the Lenders:
(i) executed counterparts of this Agreement; (ii) executed original Notes; (iii)
executed counterparts of the Collateral Documents; and (iv) executed
counterparts of all other Senior Credit Documents.
(b) Corporate Documents. The Administrative Agent shall have received
the following:
(i) Charter Documents. Copies of the articles or certificates of
incorporation or other organizational or constitutive documents of each
Credit Party and Subsidiary Grantor certified to be true and complete as of
a recent date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation and certified by a secretary or
assistant secretary of such Credit Party or Subsidiary Grantor to be true
and correct as of the Closing Date;
(ii) Bylaws. A copy of the bylaws of each Credit Party and
Subsidiary Grantor certified by a secretary or assistant secretary of such
Credit Party or Subsidiary Grantor to be true and correct as of the Closing
Date;
(iii) Resolutions. Copies of resolutions of the Board of
Directors of each Credit Party and Subsidiary Grantor approving and
adopting the Transaction Documents to which it is a party and the
transactions contemplated therein and authorizing the execution, delivery
and performance thereof, certified by a secretary or assistant secretary of
such Credit Party or Subsidiary Grantor to be true and correct and in full
force and effect as of the Closing Date;
(iv) Good Standing. Copies of certificates of good standing,
existence or the equivalent with respect to each Credit Party and
Subsidiary Grantor certified as of a recent date by the appropriate
Governmental Authority of its state or other jurisdiction of incorporation
and each other jurisdiction in which the failure to be qualified to do
business and in good standing could reasonably be expected to have a
Material Adverse Effect; and
(v) Incumbency. A certificate of each Credit Party and Subsidiary
Grantor as to the incumbency and specimen signature of each officer
executing any Senior Credit Document or any other document delivered in
connection herewith on behalf of such Credit Party, certified by a
secretary or assistant secretary of such Credit Party or Subsidiary Grantor
to be true and correct as of the Closing Date.
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(c) Officer's Certificate. A certificate of an authorized officer of
the Borrower certifying as to the following matters in a manner satisfactory in
each case to the Administrative Agent and the Lenders:
(i) either attaching copies of all consents, licenses and
approvals of Governmental Authorities, shareholders and other Persons
required in connection with the execution, delivery and performance by such
Credit Party and Subsidiary Grantor and the validity against such Credit
Party and Subsidiary Grantor of the Senior Credit Documents and the other
Transaction Documents to which it is a party and, required in connection
with the Senior Credit Documents, the other Transaction Documents and the
transactions contemplated thereby, and such consents, licenses and
approvals shall be in full force and effect, or stating that no such
consents, licenses or approvals are so required;
(ii) attaching copies of the following financial and other
statements: (A) the consolidated and consolidating financial statements of
the Borrower and its Consolidated Subsidiaries and CompBenefits Dental and
its Consolidated Subsidiaries for fiscal years 2003, 2004 and 2005,
including a consolidated and consolidating balance sheet and the related
statements of income, changes in shareholders' equity and cash flow for
such period audited by Ernst & Young LLP and prepared in conformity with
GAAP; (B) interim quarterly consolidated and consolidating financial
statements for the Borrower and its Consolidated Subsidiaries and
CompBenefits Dental and its Consolidated Subsidiaries for each calendar
quarter ending after December 31, 2005 and not less than 45 days prior to
the Closing Date; (C) quarterly projections for the Borrower and its
Consolidated Subsidiaries for each calendar quarter in fiscal year 2006,
including consolidated balance sheets and the related statements of income
and cash flow for such periods; and (D) annual projections for the Borrower
and its Consolidated Subsidiaries for fiscal years 2006, 2007, 2008, 2009
and 2010, including consolidated balance sheets and the related statements
of income and cash flow for such periods, in each case in the form
previously delivered to the Administrative Agent;
(iii) certifying that the conditions specified in Section 4.02
have been satisfied ; and
(iv) certifying on the Closing Date after giving effect to the
Transaction, the Total Leverage Ratio will not exceed 5.10 to 1.00 and the
Senior Leverage Ratio will not exceed 4.00 to 1.00, and attaching the
calculations of the foregoing, prepared and certified by a senior financial
officer of the Borrower.
(d) Undrawn Availability. On the Closing Date, after giving effect to
the initial loans and the Transaction, the aggregate unused Revolving
Commitments shall be $10 million, except for the undrawn Existing Letter of
Credit that is being continued as a Letter of Credit hereunder.
(e) Corporate Structure, Senior Subordinated Note Purchase Agreement.
After giving effect to the Transaction, the Administrative Agent and the Lenders
shall be reasonably satisfied with, (i) the corporate, capital and ownership
structure of the Credit Parties,
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the Subsidiary Grantors and their respective Subsidiaries (including any
shareholders' and management agreements) and (b) the amount, tenor, ranking and
other terms and conditions of any other existing equity and debt financings
(including the Senior Subordinated Notes and any equity issued under the Senior
Subordinated Note Purchase Agreement and the terms and provisions of the Senior
Subordinated Note Purchase Documents which have been duly executed and delivered
on the Closing Date, and any intercompany debt).
(f) Transaction. On the Closing Date after giving effect to the
transactions contemplated by the Transaction Documents, the Borrower or
CompBenefits Dental shall have received proceeds of no more than $36 million
from the Senior Subordinated Notes, which, when aggregated with the proceeds of
the Tranche B Term Loans, shall be sufficient to, and shall be used to
consummate the transactions contemplated in the Transaction Documents to be
consummated on the Closing Date, including satisfactory evidence of the
following: (i) the prepayment of all the Existing Subordinated Notes of
CompBenefits Dental in a principal amount of no more than $25 million and
termination of the Existing Subordinated Debt Agreements; (ii) the redemption of
all the Senior Preferred Stock of the Borrower in an aggregate amount of no more
than $57.3 million, and the termination of all documents related to the Senior
Preferred Stock; (iii) the repayment of outstanding loans under the Existing
Credit Agreement in accordance with Section 4.01(q); (iv) the amendment, consent
and joinder to the Registration Rights Agreement and Shareholders Agreement; and
(v) the payment of all fees and expenses incurred in connection with the
Transaction.
(g) Perfection of Security Interests. The Perfection Certificate, duly
executed by the Borrower with the schedules thereto completed for all Credit
Parties and Subsidiary Grantors (excluding the Inactive Subsidiary), together
with the following:
(i) Pledged Equity. Original certificates evidencing all of the
issued and outstanding shares of Capital Stock required to be pledged to
the Administrative Agent pursuant to the terms of the Pledge and Security
Agreement, which certificates shall be accompanied by undated stock powers
duly executed in blank by each relevant Credit Party and Subsidiary
Grantor, as applicable;
(ii) Pledged Debt. The original Intercompany Notes and other
instruments required to be pledged to the Administrative Agent pursuant to
the terms of the Pledge and Security Agreement, duly endorsed in blank by
each relevant Credit Party and Subsidiary Grantor, as applicable;
(iii) UCC, Tax Liens Judgments Search Reports. Copies of Uniform
Commercial Code Requests for Information or Copies or similar search
reports, dated a date reasonably near (but prior to) the Closing Date,
listing all effective UCC financing statements, tax liens and judgment
liens which name any Credit Party or Subsidiary Grantor, as the debtor, and
which are filed in the jurisdiction in which the Credit Parties and
Subsidiary Grantors are organized or have any material property or assets,
and in such other jurisdictions as the Administrative Agent may reasonably
request, together with copies of such financing statements (none of which
shall cover any of the Collateral, other than Liens existing on the date
hereof and which are identified on Schedule 1.03 of
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the Perfection Certificate and which the Administrative Agent have agreed
may continue in effect following the Closing Date):
(iv) Intellectual Property Search Results. With respect to all
the Intellectual Property Collateral, any search results from any search
performed by the Administrative Agent's counsel in the United States Patent
and Trademark Office and United States Copyright Office;
(v) Termination Statements. UCC-3 termination statements or other
releases in respect of Liens reflected in such search reports (including
Liens under the Existing Credit Agreement if requested by Administrative
Agent in its sole discretion) other than Permitted Liens;
(vi) Financing Statements. Acknowledgment copies of UCC financing
statements (or delivery of such financing statements in proper form for
filings) naming the Borrower and each other Credit Party or Subsidiary
Grantor, as applicable, as the debtor, and the Administrative Agent as the
secured party, which UCC financing statements have been filed, or have been
delivered for filing, under the UCC of all jurisdictions as specified on
Schedule 1.04 of the Perfection Certificate;
(vii) Senior Intellectual Property Security Agreements. Evidence
satisfactory to the Administrative Agent of the filing (or delivery for
filing to the Administrative Agent) of the Intellectual Property Security
Agreements with the United States Patent and Trademark Office and United
States Copyright Office;
(viii) Account Control Agreements. Account Control Agreements
with the banks or security intermediaries to the extent required in Section
3.04 of the Perfection Certificate as requested by the Administrative
Agent, in each case, duly executed and delivered or authenticated by the
parties thereto;
(ix) Waiver Agreements. The Borrower shall use reasonable efforts
to obtain a Waiver Agreement duly executed by the landlord with control
over the location identified in Section 2.05 of the Perfection Certificate;
(h) Opinions of Counsel. The Administrative Agent shall have received
on its behalf and on behalf of the Lenders, in each case dated as of the Closing
Date:
(i) a legal opinion of ▇▇▇▇▇▇▇ Procter LLP, special counsel to
the Credit Parties and the Subsidiary Grantors, including Credit Parties
and Subsidiary Grantors incorporated in the States of Delaware and New
York, acceptable to the Administrative Agent (including, without
limitation, opinions with respect to the Collateral), in substantially the
form of Exhibit N-1;
(ii) a legal opinion of special local counsel for each Credit
Party and Subsidiary Grantor incorporated in the State of Florida, in
substantially the form of Exhibit N-2;
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(iii) a legal opinion of in-house counsel for each Credit Party
and Subsidiary Grantor acceptable to the Administrative Agent, in
substantially the form of Exhibit N-3; and
(iv) copies of any other opinions of counsel to any Credit Party
delivered in respect of the Transaction, accompanied in each case by a
letter from such counsel stating that the Administrative Agent and the
Lenders are entitled to rely on such opinions as if they were addressed to
such parties.
(i) Evidence of Insurance. The Administrative Agent shall have
received (A) evidence satisfactory to it in its reasonable discretion, to the
effect that insurance satisfying the requirements set forth in the Senior Credit
Documents is in full force, (B) delivery of endorsements and certificates naming
the Administrative Agent as loss payee on all property insurance and the
Administrative Agent and the Lenders as additional insured under all liability
insurance; and (C) copies of all policies of insurance to the extent requested
by the Administrative Agent.
(j) Solvency Certificate. The Administrative Agent shall have received
certification, substantially in the form of Exhibit G hereto, from the chief
financial officer of the Borrower, as to the financial condition and Solvency of
each Credit Party and each Subsidiary Grantor after giving effect to the
incurrence of the Indebtedness related to the execution, delivery and
performance of the Senior Credit Documents and the Transaction (subject, in the
case of each Credit Party which is a Subsidiary and each Subsidiary Grantor, to
maximum dollar parameters).
(k) ERISA. The Administrative Agent shall be reasonably satisfied that
(A) the Borrower and its Subsidiaries will be able to meet their obligations
under all employee and retiree welfare plans, (B) the Plans of the Borrower and
its ERISA Affiliates are, in all material respects, funded in accordance with
minimum statutory requirements, (C) no Reportable Event, but excluding events
for which reporting has been waived, has occurred as to any such Plan and (D) no
termination of, or withdrawal from, any such Plan has occurred or is
contemplated that could reasonably be expected to result in any material
liability. The delivery of a Notice of Borrowing with respect to the initial
Loans shall constitute a representation and warranty by Borrower of the
correctness of matters specified in this subsection (k).
(l) Litigation. There shall not exist (i) any order, decree, judgment,
ruling or injunction which restrains the consummation of the Transaction or (b)
any pending or threatened (in writing) action, suit, investigation or proceeding
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect. The delivery of a Notice of Borrowing with respect to the
initial Loans shall constitute a representation and warranty by the Borrower of
the correctness of the matters specified in this subsection (l).
(m) Compliance with Laws. The Administrative Agent shall have received
satisfactory evidence that the Borrower and its Subsidiaries and Affiliates have
complied in all material respects with, and be validly existing under all
applicable laws, rules and regulations (including ERISA and Regulation U issued
by the FRB) after giving effect to the Transaction. The delivery of the Notice
of Borrowing with respect to the initial Loans shall constitute a
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representation and warranty by the Borrower of the correctness of the matters
specified in this subsection (m).
(n) Material Contracts. The Administrative Agent shall have received
satisfactory evidence that each Consolidated Party has complied in all material
respects with all Material Contracts after giving effect to the Transaction. The
delivery of the Notice of Borrowing with respect to the initial Loans shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in this subsection (n). The Borrower shall deliver on the
Closing Date certified copies of the Senior Subordinated Note Purchase Documents
and, if requested by the Administrative Agent or their counsel, copies of all
other Material Contracts.
(o) Fees and Expenses. The Credit Parties shall have paid all fees and
expenses owed by them to the Lenders or their Affiliates and the Administrative
Agent, including the reimbursement of the legal fees and expenses of
McGuireWoods LLP directly to McGuireWoods LLP, and any recording, filing or
similar fees.
(p) Material Adverse Effect. From December 31, 2005 to the Closing
Date, nothing shall have occurred (and neither the Lenders nor the
Administrative Agent shall have become aware of any facts or circumstances not
previously known) which had, or could reasonably be expected to have, a Material
Adverse Effect.
(q) Existing Credit Agreement. The Lenders shall be satisfied that,
concurrently with the Closing Date, the Existing Credit Agreement has been
amended and restated in its entirety, all outstanding loans under the Existing
Credit Agreement which were provided by Lenders under the Existing Credit
Agreement who have not agreed to make Loans under this Agreement have been
repaid in full (together with any premium or breakage costs for such loans and
commitments as provided in the Existing Credit Agreement), and all accrued and
unpaid interests and fees under the Existing Credit Agreement have been paid in
full. In addition, the Lenders shall be satisfied that all Liens granted
pursuant to the collateral documents under the Existing Credit Agreement shall
with respect to the revolving loans or tranche B term loans thereunder continue
in full force and effect under this Agreement and all lender hedging agreements
under the Existing Credit Agreement with respect to the revolving loans or
tranche B term loans shall continue to be secured for purposes of this Agreement
and the other Senior Credit Documents (or at the sole option of the
Administrative Agent be terminated and new filings made hereunder).
(r) Business Associate Agreement. The Borrower agrees to deliver on or
prior to the Closing Date, an agreement to allow for the Borrower's and its
Subsidiaries' compliance with the federal privacy regulations issued pursuant to
HIPAA with respect to the Administrative Agent's and Lenders' access to and/or
use or disclosure of "Protected Health Information" (as defined in HIPAA) in
connection with this Agreement and the other Senior Credit Documents (the
"Business Associate Agreement").
(s) Commitment Letter, Fee Letter. The Fee Letter and the commitment
letter related thereto shall be in full force and effect and each of the Credit
Parties shall have complied with all of their respective obligations thereunder.
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(t) Other. The Administrative Agent shall have received, in form and
substance satisfactory to it, environmental reports and assessments and such
other reports, audits, assessments or certifications as it may reasonably
request.
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 hereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
SECTION 4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The obligations
of each Lender to make any Loan (including the initial Loans), Convert any
existing Base Rate Loan into a Loan of another Type or Extend any existing
Eurodollar Rate Loan into a subsequent Interest Period and of the Issuing Lender
to issue or extend any Letter of Credit are subject, on the date such Loan is
made, Converted or Extended or the date such Letter of Credit is issued or
extended, as applicable, to satisfaction of the following conditions:
(a) The Borrower shall have delivered to the Administrative Agent
and/or the Issuing Lender, as appropriate, (i) in the case of any Revolving
Loan, any Tranche B Term Loan or Swingline Loan, an appropriate Notice of
Borrowing or Notice of Extension/Conversion or (ii) in the case of any Letter of
Credit, an appropriate request for issuance or extension in accordance with the
provisions of Section 2.02(b);
(b) The representations and warranties set forth in Article V and in
each of the other Senior Credit Documents shall be true and correct in all
material respects as of such date (except for those which expressly relate to an
earlier date, in which case such representations and warranties shall be true
and correct in all material respects on and as of such earlier date) and
references to Schedules shall be deemed to refer to the most updated supplements
to Schedules to be delivered on the next scheduled delivery date, as to which
the Borrower has notified the Administrative Agent in writing.
(c) There shall not have been commenced against any Credit Party or
Subsidiary Grantor an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any case,
proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or liquidation
of its affairs, which involuntary case or other case, proceeding or other action
shall remain undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be continuing
either prior to the making, Conversion or Extension of such Loan or the issuance
or extension of such Letter of Credit or after giving effect thereto;
(e) No material adverse change shall have occurred or become known
since the Closing Date in the condition (financial or otherwise), business,
assets, liabilities (actual or contingent), results of operations, cash flows,
operations, condition (financial or otherwise) or
75
prospects of the Borrower its Subsidiaries, taken as a whole, or the Borrower
and its Subsidiaries, taken as a whole (determined on a pro forma basis), and
there shall exist no conditions, events or occurrences that, individually or in
the aggregate, would reasonably be expected to result in such a material adverse
change; and
(f) Immediately after giving effect to the making, Conversion or
Extension of such Loan (and the application of the proceeds thereof) or to the
issuance or extension of such Letter of Credit, as applicable, the aggregate
outstanding Revolving Credit Facility Obligations and the aggregate principal
amount of outstanding Tranche B Term Loans shall not exceed any of the
limitations applicable thereto set forth in Article II.
The delivery of each Notice of Borrowing, each Notice of Extension of Eurodollar
Rate Loans or Conversion of Base Rate Loans and each request for the issuance or
extension of a Letter of Credit pursuant to Section 2.02(b) shall constitute a
representation and warranty by the Borrower of the correctness of the matters
specified in subsections (b), (c), (d), (e) and (f) above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants, to the Administrative
Agent and each Lender that:
SECTION 5.01 FINANCIAL CONDITION. (a) The audited financial statements
referred to in Section 4.01(c)(ii)(A) have heretofore been furnished to each
Lender. Such financial statements (including the notes thereto) (i) have been
audited by Ernst & Young LLP, (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and (iii) present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated and consolidating financial condition, results of operations
and cash flows of the Borrower and its Consolidated Subsidiaries or CompBenefits
Dental and its Consolidated Subsidiaries, as applicable, as of such dates and
for such periods. The unaudited interim balance sheets of the Borrower and its
Consolidated Subsidiaries or CompBenefits Dental and its Consolidated
Subsidiaries, in each case as at the end of, and the related unaudited interim
statements of earnings and of cash flows for, each fiscal quarter ended after
December 31, 2005 and prior to the Closing Date have heretofore been furnished
to each Lender. Such interim financial statements (i) have been prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby, except for the absence of footnotes and (ii) present fairly the
consolidated and consolidating financial condition, results of operations and
cash flows of the Borrower and its Consolidated Subsidiaries or CompBenefits
Dental and its Consolidated Subsidiaries, as applicable, as of such dates and
for such periods, except for annual audit adjustments. During the period from
December 31, 2005, to and including the Closing Date, there has been no sale,
transfer or other disposition by any Consolidated Party of any material part of
the business or property of the Consolidated Parties, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Consolidated Parties, taken as a whole,
in each case, which is not reflected in the foregoing financial statements or in
the notes thereto. The balance sheets and the notes thereto included in the
foregoing financial statements disclose all material liabilities, actual or
contingent, of the
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Borrower, CompBenefits Dental and their respective Consolidated Subsidiaries as
of the dates thereof.
(b) As of the Closing Date, the Consolidated Parties do not have any
material liabilities, actual or contingent, or Preferred Stock except (i) as
disclosed in the most recent interim financial statements referred to in
subsection (a) above, (ii) for items disclosed in Schedule 5.01, (iii) for
accounts payable incurred in the ordinary course of business consistent with
past practice since the date of the most recent interim financial statements
referred to in subsection (a) above, (iv) Indebtedness under the Senior Credit
Documents and the Senior Subordinated Note Purchase Documents and (v)
Indebtedness set forth on Schedule 7.01.
(c) The projections referred to in Section 4.01(c)(ii)(C) have
heretofore been furnished to each Lender. Such projections have been prepared on
a basis consistent with the financial statements of the Borrower and its
Consolidated Subsidiaries referred to in subsection (a) above and are based on
good faith estimates and assumptions made by management of the Borrower. On the
Closing Date, such management believed that such projections were reasonable and
attainable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by such projections may differ from the projected
results and that such differences may be material. There is no fact known of the
Borrower or any of its Subsidiaries which would reasonably be expected to have a
Material Adverse Effect which has not been disclosed herein or in the financial
statements delivered in connection herewith.
(d) The financial statements delivered to the Lenders pursuant to
Section 6.01(a) and (b), if any, (i) have been prepared in accordance with GAAP
(except as may otherwise be permitted under Section 6.01(a) and (b), and (ii)
present fairly (on the basis disclosed in the footnotes to such financial
statements, if any) the consolidated and consolidating financial condition,
results of operations and cash flows of the Borrower and its Consolidated
Subsidiaries as of the respective dates thereof and for the respective periods
covered thereby.
SECTION 5.02 NO MATERIAL EFFECT AND NO INTERNAL CONTROL EVENT. (a)
Since December 31, 2005, there has been no development or event relating to or
affecting a Consolidated Party which has had or could reasonably be expected to
have a Material Adverse Effect.
(b) To the best knowledge of the Borrower, no Internal Control Event
exists or has occurred since the date of the last audited financial statements
delivered pursuant to Section 6.01(a) 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
Borrower and its Consolidated Parties on a consolidated basis.
SECTION 5.03 ORGANIZATION AND GOOD STANDING. Each of the Consolidated
Parties (a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization, (b) has the
corporate or other necessary power and authority, and the legal right, to own
and operate its Property, to lease the Property it
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operates as lessee and to conduct the business in which it is currently engaged
and (c) is duly qualified as a foreign entity and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of Property or
the conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not reasonably be expected to have a Material Adverse Effect.
SECTION 5.04 POWER; AUTHORIZATION; GOVERNMENTAL AUTHORIZATIONS; OTHER
CONSENTS; ENFORCEABLE OBLIGATIONS. (a) Each of the Credit Parties and Subsidiary
Grantors has the corporate or other necessary power and authority, and the legal
right, to execute, deliver and perform the Transaction Documents to which it is
a party and, in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of the
Transaction Documents to which it is a party.
(b) No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other Person
is required to be obtained or made by or on behalf of any Consolidated Party to
any Transaction Document in connection with the borrowings or other extensions
of credit hereunder or with (i) the execution, delivery, performance by,
validity or enforceability of any Senior Credit Document or other Transaction
Document to which such Person is a party (other than those obtained), (ii) the
validity or enforceability of this Agreement or any other Senior Credit Document
or other Transaction Document against the Consolidated Parties (except such
filings as are necessary in connection with the perfection of Liens created by
such Senior Credit Documents) or (iii) the consummation of the transactions
contemplated thereby, including the consummation of the Transaction and all
other transactions contemplated by the Transaction Documents, other than the
following approvals, consents, exemptions, authorizations actions, filings,
registrations and qualifications:
(i) the following approvals, filings and consents: (A) the filing
of financing statements in the UCC filing offices and the UCC termination
statements and other Lien releases in the applicable UCC or other offices,
(B) the filing of Intellectual Property Security Agreements in favor of the
respective Administrative Agent with the United States Patent and Trademark
Office, or the United States Copyright Office, as applicable, (C) the
execution of the Account Control Agreements, and (D) the execution of the
Waiver Agreements; and
(ii) the approvals, consents and authorizations listed on
Schedule 5.04 hereto, all of which have been obtained.
(c) This Agreement has been, and each other Senior Credit Document and
other Transaction Document to which any Consolidated Party is a party will be,
duly executed and delivered on behalf of such Consolidated Party.
(d) This Agreement constitutes, and each other Senior Credit Document
and other Transaction Document when executed and delivered will constitute, a
legal, valid and binding obligation of each Consolidated Party thereto,
enforceable against such Person in accordance with its terms, except as such
enforceability may be limited by applicable
78
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 5.05 NO CONFLICTS. Neither the execution and delivery by any
Consolidated Party of this Agreement, the other Senior Credit Documents or other
Transaction Documents to which such Person is a party, nor the consummation of
the transactions contemplated therein, nor performance of and compliance with
the terms and provisions thereof by such Person, nor the exercise of remedies by
the Secured Parties under the Senior Credit Documents, will (a) violate or
conflict with any provision of its articles or certificate of incorporation or
bylaws or other organizational or governing documents, (b) violate, contravene
or conflict with any Requirement of Law (including Regulation U) applicable to
it or its Properties, (c) violate, contravene or conflict with contractual
provisions of, cause an event of default under, or give rise to material
increased, additional, accelerated or guaranteed rights of any Person under, any
indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which such Person is a party or by which it may be bound, the
violation of which could reasonably be expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien (except Liens
created under the Collateral Documents) upon or with respect to its Properties.
SECTION 5.06 NO DEFAULT. No Consolidated Party is in default in any
respect under (a) any loan agreement, indenture, mortgage, security agreement or
other agreement relating to Indebtedness or any other contract, lease, agreement
or obligation to which it is a party or by which any of its Properties is bound
which default could reasonably be expected to have a Material Adverse Effect or
(b) as of the Closing Date, any Existing Subordinated Debt Agreement. No Default
or Event of Default has occurred or exists.
SECTION 5.07 OWNERSHIP OF PERSONAL PROPERTY; LIENS. Each Consolidated
Party is the owner of, and has good and marketable title to, all of its
respective properties, assets (including, without limitation, the Collateral),
and none of such assets (including, without limitation, the Collateral), is
subject to any Lien other than Permitted Liens and as of the Closing Date the
Liens under the Existing Credit Agreement which are being continued on the
Closing Date for the benefit of the Secured Parties.
SECTION 5.08 INDEBTEDNESS. Except as permitted under Section 7.01, the
Consolidated Parties have no Indebtedness, other than as of the Closing Date,
Indebtedness under the Existing Credit Agreement which shall be paid off or
continued as Loans hereunder concurrently with the Closing Date.
SECTION 5.09 LITIGATION. There are no actions, suits, investigations
or legal, equitable, arbitration or administrative proceedings pending for which
service of process or other written notice has been received or, to the
knowledge of any Credit Party, threatened against or affecting any Consolidated
Party which could reasonably be expected to have a Material Adverse Effect.
SECTION 5.10 TAXES. Each Consolidated Party has filed, or caused to be
filed, all tax returns (including federal, state, local and foreign tax returns)
required to be filed and paid (a)
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all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
by it, except for such taxes (i) which are not yet delinquent, (ii) that are
being contested in good faith and by proper proceedings diligently pursued, and
against which adequate reserves are being maintained in accordance with GAAP or
(iii) in the case of clause (b), those in an aggregate amount not to exceed
$50,000. No Credit Party knows of any pending investigation of such party by any
taxing authority or proposed tax assessments in writing proposed against it or
any other Consolidated Party.
SECTION 5.11 COMPLIANCE WITH LAW. Each Consolidated Party is in
compliance with all Requirements of Law (including Environmental Laws)
applicable to it or to its Properties, except for any such failure to comply
which could not reasonably be expected to have a Material Adverse Effect. No
Requirement of Law could reasonably be expected to cause a Material Adverse
Effect. To the knowledge of the Credit Parties, as of the Closing Date, none of
the Consolidated Parties or any of their respective material Properties or
assets is subject to or in default with respect to any judgment, writ,
injunction, decree or order of any court or other Governmental Authority. Except
as disclosed in Schedule 5.11, none of the Consolidated Parties has received any
written communication prior to the Closing Date from any Governmental Authority
that alleges that any of the Consolidated Parties is not in compliance in any
material respect with any Requirement of Law, except for allegations that have
been satisfactorily resolved and are no longer outstanding.
SECTION 5.12 ERISA. Except as disclosed in Schedule 5.12:
(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 (i) has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto or
(ii) is established pursuant to a prototype or master plan which has received a
favorable opinion letter from the IRS, and in the case of either clause (i) or
(ii), to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably 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) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Single
Employer Plan and, to the knowledge of the Credit Parties, each Multiemployer
Plan has been maintained, operated, and funded in compliance with its own terms
and in material compliance with the
80
provisions of ERISA, the Code, and any other applicable federal or state laws;
and (iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(d) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(e) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the knowledge of the Credit Parties, could be reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. Neither any Consolidated Party nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA if any
Consolidated Party or any ERISA Affiliate were to withdraw completely from all
Multiemployer Plans and Multiple Employer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made.
Neither any Consolidated Party nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the meaning of Section
4245 of ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the knowledge of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(f) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA Affiliate to any material liability under
Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Consolidated Party
or any ERISA Affiliate has agreed or is required to indemnify any Person against
any such liability.
(g) Neither any Consolidated Party nor any ERISA Affiliate has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601 through 609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material respects with such
sections.
(h) Neither the execution and delivery of this Agreement nor the
consummation of the financing transactions contemplated hereunder will involve
any transaction which is subject to the prohibitions of Sections 406 or 407 of
ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Code. The representation by the Credit Parties and the Subsidiary
Grantors in the preceding sentence is made in reliance upon and subject to the
accuracy of the Lenders' representation in Section 10.14 with respect to their
source of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance company's
general asset account, to the application of Prohibited Transaction Class
Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
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compliance with the regulations issued under Section 401(c)(1)(A) of ERISA, or
the issuance of any other prohibited transaction exemption or similar relief, to
the effect that assets in an insurance company's general asset account do not
constitute assets of an "employee benefit plan" within the meaning of Section
3(3) of ERISA or of a "plan" within the meaning of Section 4975(e)(1) of the
Code.
SECTION 5.13 SUBSIDIARIES. Schedule 5.13 sets forth a complete and
accurate list as of the Closing Date of all Subsidiaries (excluding the Inactive
Subsidiary) of the Borrower. Schedule 5.13 sets forth as of the Closing Date,
the jurisdiction of incorporation of each such Subsidiary, the number of
authorized shares of each class of Capital Stock of each such Subsidiary, the
number of outstanding shares of each class of Capital Stock, the number and
percentage of outstanding shares of each class of Capital Stock of each such
Subsidiary owned (directly or indirectly) by any Person, and the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion
or purchase and all other similar rights with respect to Capital Stock of each
such Subsidiary. All the outstanding Capital Stock of each Subsidiary of the
Borrower is validly issued, fully paid and non-assessable and, as of the Closing
Date, is owned by the Borrower, directly or indirectly, free and clear of all
Liens (other than those arising under the Collateral Documents). Other than as
set forth in Schedule 5.13, as of the Closing Date no such Subsidiary has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its Capital Stock. As of the Closing Date, the
Borrower has no Subsidiaries, other than CompBenefits Dental, DHMI and their
respective Subsidiaries. The Subsidiary Guarantors constitute all of the
Subsidiaries of the Borrower which are not Regulated Subsidiaries.
SECTION 5.14 GOVERNMENTAL REGULATIONS, ETC. (a) None of the
Consolidated Parties is engaged or will 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, and no proceeds of any Loans
or drawings under any Letter of Credit will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying margin stock.
(b) No Consolidated Party is subject to regulation under the Federal
Power Act or the Investment Company Act of 1940, each as amended. In addition,
no Consolidated Party is (i) an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended or (ii)
controlled by such a company.
(c) To the knowledge of any Credit Party, except as set forth on
Schedule 5.14, no director, executive officer or principal holder of Capital
Stock of any Consolidated Party is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O issued by
the Board of Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in full force and
effect all material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations,
82
easements, rights of way and other rights, consents and approvals which are
necessary for the ownership of its respective Property and to the conduct of its
respective businesses as presently conducted.
(e) Each Consolidated Party is current with all material reports and
documents, if any, required to be filed with any state or federal securities
commission or similar agency and is in full compliance in all material respects
with all applicable rules and regulations of such commissions.
SECTION 5.15 PURPOSE OF LOANS AND LETTERS OF CREDIT. The proceeds of
the Tranche B Term Loans will be used solely (i) to repay any Indebtedness
outstanding under the Existing Credit Agreement which is not continued as Loans
under this Agreement as of the Closing Date, (ii) to repay a portion of the
Existing Subordinated Notes of CompBenefits Dental, all of which Existing
Subordinated Notes shall be repaid on the Closing Date in an aggregate amount of
no more than $25 million as part of the Transaction, (iii) to redeem a portion
of the Senior Preferred Stock of the Borrower, all of which Senior Preferred
Stock shall be redeemed on the Closing Date in an aggregate amount of no more
than $57.3 million as part of the Transaction and (iv) to pay a portion of the
fees and expenses incurred in connection with the Transaction. The proceeds of
the Revolving Loans and the Swingline Loans made after the Closing Date will be
used solely to provide for the working capital requirements of the Borrower and
its Subsidiaries and for the general corporate purposes of the Borrower and its
Subsidiaries, including Permitted Acquisitions. The Letters of Credit shall be
used only for or in connection with appeal bonds, reimbursement obligations
arising in connection with surety and reclamation bonds, reinsurance, and other
obligations relating to transactions entered into by the Borrower and its
Subsidiaries in the ordinary course of business.
SECTION 5.16 ENVIRONMENTAL MATTERS. To our knowledge, except as
disclosed in Schedule 5.16 or except as could not reasonably be expected to have
a Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by
the Consolidated Parties (the "Company Properties") and all operations at the
Company Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Company
Properties or the businesses operated by the Consolidated Parties (the
"Businesses"), and there are no conditions or circumstances relating to the
Businesses or Company Properties or any former facilities, properties or
businesses of the Consolidated Parties that could give rise to liability of any
Consolidated Party under any applicable Environmental Laws or under any
agreement or other instrument pursuant to which any Consolidated Party has
agreed or is required to indemnify any Person against any such liability.
(b) None of the Company Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the Company
Properties in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability of any Consolidated Party under,
Environmental Laws or under any agreement or other instrument pursuant to which
any Consolidated Party has agreed or is required to indemnify any Person against
any such liability.
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(c) No Consolidated Party has received prior to the Closing Date any
written notice of, or written inquiry from any Governmental Authority regarding,
any violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Company Properties or the Businesses, nor does any
Consolidated Party have knowledge or reason to believe as of the Closing Date
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Company Properties, or generated, treated, stored or
disposed of at, on or under any of the Company Properties or any other location,
in each case by or on behalf of any Consolidated Party in violation of, or in a
manner that could give rise to liability of any Consolidated Party under, any
applicable Environmental Law or under any agreement or other instrument pursuant
to which any Consolidated Party has agreed or is required to indemnify any
Person against any such liability.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of any Credit Party, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees, consent orders, administrative orders,
other decrees or orders or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Consolidated
Parties, the Company Properties or the Businesses.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Company Properties, or arising from or
related to the operations (including disposal) of any Consolidated Party in
connection with the Company Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could reasonably
be expected to give rise to liability under Environmental Laws or under any
agreement or other instrument pursuant to which any Consolidated Party has
agreed or is required to indemnify any Person against any such liability.
SECTION 5.17 INTELLECTUAL PROPERTY. (a) Each Consolidated Party owns,
or has the legal right to use, all trademarks, tradenames, copyrights, service
marks, proprietary techniques, patents, patent applications, trade secrets,
technology, know-how and processes (the "Intellectual Property") necessary for
each of them to conduct its business as currently conducted, except for those
the failure to own or have such legal right to use could not reasonably be
expected to have a Material Adverse Effect. All material Intellectual Property
owned by any Consolidated Party is referred to herein as the "Material Owned
Intellectual Property" and all material Intellectual Property that any
Consolidated Party has the right to use, but not ownership of, is referred to
herein as "Material Licensed Intellectual Property." The Material Owned
Intellectual Property and the Material Licensed Intellectual Property is
referred to collectively as the "Material Intellectual Property". Schedule 5.17
sets forth a complete and accurate list as of the Closing Date of each of the
Material Owned Intellectual Property and the Material Licensed Intellectual
Property. None of the Consolidated Parties has granted any options, licenses or
agreements of any kind relating to Material Intellectual Property.
(b) No claim has been asserted and is pending by any Person
challenging or questioning the use, ownership or enforceability of any Material
Owned Intellectual Property or
84
the validity or effectiveness of any Material Intellectual Property, nor does
any Credit Party know of any such claim, and to the Credit Parties' knowledge
the use of the Material Intellectual Property by any Consolidated Party does not
infringe on the rights of any Person. None of the Consolidated Parties is in
breach of any material provision of any license, sublicense or other agreement
which relates to any of the Material Licensed Intellectual Property, and, to the
knowledge of the Credit Parties, none of the Consolidated Parties has taken any
action which would impair or otherwise adversely affect its rights in any of the
Material Intellectual Property. To the knowledge of the Credit Parties, all the
Material Owned Intellectual Property is valid and enforceable, except that, with
respect to the applications to register any unregistered Intellectual Property
(but not with respect to the underlying Intellectual Property rights that are
the subject of such applications), the Credit Parties only represent and warrant
that such applications are pending and in good standing all without material
challenge of any kind.
(c) All proprietary information owned by each Consolidated Party has
been maintained in confidence by the Consolidated Parties and their respective
former and current employees, agents, consultants and independent contractors in
accordance with protection procedures customarily used to protect confidential
information. The Consolidated Parties have taken all commercially reasonable
steps to restrict the right of all former and current members of management and
key personnel of each Consolidated Party, including all former and current
employees, agents, consultants and independent contractors who have materially
contributed to or participated in the conception and development of any of the
Material Owned Intellectual Property (collectively, "Personnel"), to disclose
proprietary information of the Consolidated Parties and their respective
clients. The Consolidated Parties have taken commercially reasonable steps to
require all Personnel either (i) to be party to a "work-for-hire" arrangement or
agreement with the Consolidated Parties, in accordance with applicable federal
and state law, that has accorded the Consolidated Parties full, effective,
exclusive and original ownership of all tangible and intangible property thereby
arising or (ii) to execute appropriate instruments of assignment in favor of the
Consolidated Parties as assignee that have conveyed to the Consolidated Parties
full, effective and exclusive ownership of all tangible and intangible property
thereby arising. To the knowledge of the Consolidated Parties, no former or
current Personnel have any claim against the Consolidated Parties in connection
with such Person's involvement in the conception and development of any
Intellectual Property and no such claim has been asserted or is threatened. None
of the current officers and employees of any of the Consolidated Parties have
any patents issued or applications pending for any device, process, design or
invention of any kind now used or needed by any of the Consolidated Parties in
the furtherance of its business operations, which patents or applications have
not been assigned to the Consolidated Parties, with such assignment duly
recorded in the United States Patent Office.
SECTION 5.18 SOLVENCY. Each Credit Party and each Subsidiary Grantor
is and, after consummation of the transactions contemplated hereby, will be
Solvent.
SECTION 5.19 INVESTMENTS. All Investments of any Consolidated Party
are Permitted Investments.
SECTION 5.20 LOCATION OF COLLATERAL. Set forth on Schedule 5.20 is the
jurisdiction of incorporation or organization, and the chief executive office
and principal place of business of each Consolidated Party (excluding the
Inactive Subsidiary) as of the Closing Date.
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SECTION 5.21 DISCLOSURE. Neither this Agreement nor any financial
statements delivered to the Administrative Agent and the Lenders pursuant hereto
nor any other document, certificate or statement (other than final projections)
furnished to the Lenders by or on behalf of any Consolidated Party in connection
with the transactions contemplated hereby, taken as a whole, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not misleading. All
financial projections that have been made available to the Administrative Agent
or the Lenders by any Consolidated Party or any representatives thereof in
connection with the transactions contemplated hereby have been prepared in good
faith based upon assumptions believed by the Consolidated Parties to be
reasonable.
SECTION 5.22 NO BURDENSOME RESTRICTIONS; MATERIAL AGREEMENTS. (a) No
Consolidated Party is a party to any agreement or instrument or subject to any
other obligation or any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Set forth on
Schedule 5.22 is a complete and accurate list of all Material Contracts of each
Consolidated Party, showing the name thereof, the parties thereto, the subject
matter and the term thereof.
(b) Except as set forth in Schedule 5.22 as of the Closing Date, each
Material Contract is in all material respects valid, binding and in full force
and effect and will be enforceable by the Borrower or the Subsidiary of the
Borrower which is a party thereto in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
equitable principles (whether in equity or at law). Except as set forth in
Schedule 5.22, as of the Closing Date, each of the Borrower and the Subsidiaries
has performed in all material respects all obligations required to be performed
by it to date under the Material Contracts and it is not (with or without the
lapse of time or the giving of notice, or both) in breach or default in any
material respect thereunder and, to the knowledge of the Credit Parties, no
other party to any of the Material Contracts is (with or without the lapse of
time or the giving of notice, or both) in breach or default in any material
respect thereunder. As of the Closing Date, neither the Borrower nor any of the
Subsidiaries, nor, to the knowledge of the Borrower, any other party to any
Material Contract, has given notice of termination of, or taken any action
inconsistent with the continuation of, any Material Contract. As of the Closing
Date, none of such other parties has any presently exercisable right to
terminate any Material Contract for any reason, including as a result of the
execution, delivery or performance of the Transaction Documents.
(c) Except as could not reasonably be expected to have a Material
Adverse Effect, none of the Consolidated Parties has any knowledge of any actual
or threatened (in writing) adverse change in the relationship between any
Consolidated Party and any material customer, supplier distributor or other
party with whom such Consolidated Party does business.
SECTION 5.23 LABOR MATTERS. Except as disclosed in Schedule 5.23,
there are no collective bargaining agreements or Multiemployer Plans covering
the employees of a Consolidated Party as of the Closing Date, and none of the
Consolidated Parties has suffered any strike, walkout, work stoppage, unfair
labor practice complaint or other material labor difficulty within the five
years prior to the Closing Date. To the knowledge of the Credit Parties, as of
the
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Closing Date, no union representation question exists with respect to the
employees of the Consolidated Parties and no union organizing activities are
taking place. The hours worked by and payments made to employees of the
Consolidated Parties have not been in violation in any material respect of the
Fair Labor Standards Act or any other applicable federal, state, local or
foreign law dealing with such matters. All payments due from any Consolidated
Party, or for which any claim may be made against any Consolidated Party, on
account of wages, employee health and welfare insurance or other benefits, have
been paid or accrued as a liability on the books of the Consolidated Parties.
SECTION 5.24 NATURE OF BUSINESS. As of the Closing Date, the
Consolidated Parties are engaged in the business of providing full-service
dental and vision benefits, offering network-based dental and vision care,
reduced fee-for-service and third party administration and providing dental and
vision coverage for plan members.
SECTION 5.25 COLLATERAL DOCUMENTS. (a) The Pledge and Security
Agreement is effective to create in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable first
priority security interest in the Collateral identified therein owned by each
Credit Party and Subsidiary Grantor who is a party thereto and has granted a
security interest in the Collateral, and, when (A) financing statements in
appropriate form are filed as provided in Section 5.04 in the places set forth
on Schedule 5.25, the Pledge and Security Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the grantors thereunder in such of the Collateral that may be
perfected by filing, recording or registering a financing statement under the
UCC, in each case prior and superior to the right of any other Person; (B) the
Pledged Securities (as defined in the First Pledge and Security Agreement)
evidencing any Pledged Equity (as defined in the Pledge and Security Agreement)
which are certificated securities and any Pledged Notes (as defined in the
Pledge and Security Agreement) are delivered to the Administrative Agent (and so
long as they continue to be properly held by the Administrative Agent), the
Pledge and Security Agreement shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Pledged Equity and Pledged Notes, in each case subject to no
prior and superior Lien; and (C) the Intellectual Property Security Agreements
have been duly recorded in the United States Patent and Trademark Office, or the
United States Copyright Office, as applicable, the Pledge and Security Agreement
shall constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the Credit Parties and Subsidiary Grantors
thereunder in all Patents, Trademarks and Copyrights (each as defined in the
Pledge and Security Agreement) owned by such Credit Parties and Subsidiary
Grantors and in which a security interest may be perfected by filing, recording
or registration of an Intellectual Property Security Agreement in the United
States Patent and Trademark Office and the United States Copyright Office, in
each case prior and superior in right to any other Lien.
(b) Each Account Control Agreement when duly executed and delivered by
the banks and security intermediaries parties thereto will constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Credit Parties who are parties to the Pledge and Security Agreement and
grant an interest in Deposit Accounts and Securities Accounts (each defined in
the Pledge and Security Agreement) under such Account Control Agreement prior
and
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superior in right to any other Person, subject only to other Liens permitted
therein and in Permitted Liens.
SECTION 5.26 TRANSACTIONS WITH AFFILIATES. Except as set forth in
Schedule 5.26, except for agreements and arrangements entered into in the
ordinary course of business on terms and conditions as favorable to any party
thereto as would be obtainable by it in a comparable arms-length transaction
with an independent, unrelated third party and except for agreements and
arrangements among the Borrower and its Wholly-Owned Subsidiaries or among
Wholly-Owned Subsidiaries of the Borrower, neither the Borrower nor any of its
Subsidiaries will be a party to or engaged in any transaction with, and none of
the properties and assets of the Borrower or any of its Subsidiaries will be
subject to or bound by any agreement or arrangement with, (a) any Affiliate of
any Consolidated Party or (b) any member of the Sponsor Group or any of their
respective Affiliates.
SECTION 5.27 OWNERSHIP OF THE BORROWER, ETC.. Schedule 5.27 sets forth
a true and accurate list as of the Closing Date after giving effect to the
Transaction of each holder of Capital Stock of the Borrower, indicating the name
of each such holder and the Capital Stock held by each such Person. Except for
the Registration Rights Agreement, the Shareholders Agreement and the Stock
Option Plan, there are no shareholders agreements or other agreements to which
the Borrower is a party pertaining to the Investor Group's beneficial ownership
of the Capital Stock of the Borrower, including any agreement that would
restrict the Investor Group's right to dispose of such Capital Stock and/or its
right to vote such Capital Stock.
SECTION 5.28 INSURANCE. The Consolidated Parties maintain policies of
fire and casualty, liability, business interruption and other forms of insurance
in such amounts, with such deductibles and against such risks and losses as are
in accordance with normal industry practice for the business and assets of the
Consolidated Parties. All such policies are in full force and effect, all
premiums due and payable thereon have been paid (other than retroactive or
retrospective premium adjustments that are not yet, but may be, required to be
paid with respect to any prior period under comprehensive general liability and
worker's compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which has not been
replaced on substantially similar terms prior to the date of such cancellation.
The activities and operations of the Consolidated Parties have been conducted in
a manner so as to conform in all material respects to all applicable provisions
of such insurance policies. Schedule 5.28 sets forth the insurance coverage of
the Consolidated Parties by carrier, policy number, expiration date, type and
amount as of the Closing Date.
SECTION 5.29 CERTAIN TRANSACTIONS. (a) On the Closing Date, all funds
advanced on the Closing Date by the Lenders will be used in accordance with
Section 5.15.
(b) On the Closing Date, the Transaction shall be consummated in
accordance with the provisions in Section 4.01(f).
(c) All Senior Credit Obligations of each Credit Party shall be
"Senior Indebtedness" for purposes of and as defined in the Senior Subordinated
Note Purchase Agreement.
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SECTION 5.30 COMPLIANCE WITH HIPAA. To the extent that and for so long
as any Consolidated Party is a "covered entity" within the meaning of or
otherwise subject to HIPAA, each Consolidated Party (a) has undertaken all
necessary surveys, audits, inventories, reviews, analyses and/or assessments
(including any necessary risk assessments) of all areas of its business and
operations required by HIPAA and/or that could be materially adversely affected
by the failure of such Consolidated Party to be HIPAA Compliant (as defined
below), (b) has implemented all required policies, procedures and other actions
necessary to be HIPAA Compliant, (c) has executed the "Business Associate
Agreements" (as defined under HIPPA regulations), including the Business
Associate Agreement delivered under this Agreement and (d) is HIPPA Complaint.
For purposes hereof, "HIPAA Compliant" means that such Consolidated Party (A) is
in compliance with each of the applicable requirements of the so-called
"Administrative Simplification" provisions of HIPAA, and all final rules and
regulations promulgated thereunder, on and as of each date that any part
thereof, and all final rules or regulations thereunder, becomes effective in
accordance with its or their terms, as the case may be (each such date, a "HIPAA
Compliance Date") and (B) is not and could not reasonably be expected to become,
as of any date following any such HIPAA Compliance Date, the subject of any
civil or criminal penalty, process, claim, action or proceeding, or any
administrative or other regulatory review, survey, process or proceeding (other
than routine surveys or reviews conducted by any government health plan or other
accreditation entity), that could result in any of the foregoing or that could
in the case of (A) and (B) reasonably be expected to have a Material Adverse
Effect.
SECTION 5.31 TAXPAYER IDENTIFICATION NUMBER. The Borrower's true and
correct U.S. taxpayer identification number is set forth on Schedule 10.01.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this
Agreement is in effect or any amounts payable hereunder or under any other
Senior Credit Document shall remain outstanding and until all of the Commitments
hereunder shall have terminated and all Letters of Credit shall have expired or
been cancelled:
SECTION 6.01 INFORMATION COVENANTS. The Borrower will furnish, or
cause to be furnished, to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 90 days after the end of each fiscal year of the Borrower
(commencing with the fiscal year ended December 31, 2006), a consolidated
balance sheet and income statement of the Borrower and its Consolidated
Subsidiaries, as of the end of such fiscal year, together with related
consolidated statements of operations and retained earnings and of cash flows
for such fiscal year, setting forth in comparative form consolidated figures for
the preceding fiscal year, all such financial statements to be in reasonable
form and detail and audited and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with GAAP and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit or with respect to the
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absence of any material misstatement and (ii) only if and when the Borrower
consummates an IPO or becomes subject to regulation by the SEC, an opinion of
such Registered Public Accounting Firm independently assessing the Borrower's
internal controls over financial reporting in accordance with Items 308 of SEC
Regulation S-K, PCAOB Auditing Standard No. 2 and Section 404 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇
expressing a conclusion that contains no statement that there is a material
weakness in such internal controls, except for such material weaknesses as to
which the Required Lenders do not object.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the end of each of the first three fiscal quarters in
each fiscal year (commencing with fiscal year 2006) of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal quarter, together with related consolidated statements
of operations and retained earnings and of cash flows for such fiscal quarter
and the then elapsed portion of such fiscal year, setting forth in comparative
form consolidated figures for the corresponding period of the preceding fiscal
year, all such financial statements to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of the chief financial officer of the Borrower to the effect that
such quarterly financial statements have been prepared in accordance with GAAP,
except for the absence of footnotes, and fairly present in all material respects
the consolidated financial position and consolidated results of operations and
cash flows of the Borrower and its Consolidated Subsidiaries in accordance with
GAAP consistently applied, subject to changes resulting from normal year-end
audit adjustments; provided that the Borrower shall also furnish or cause to be
furnished to the Administrative Agent and each of the Lenders within the time
periods set for above, any final reports produced by independent certified
public accountants related to such quarterly financial statements.
(c) Compliance Certificate. At the time of delivery of the financial
statements provided for in Sections 6.01(a) and 6.01(b) above (commencing with
the delivery of the financial statements for fiscal quarter ended March 31,
2006), a Compliance Certificate of the president, chief executive officer, chief
operating officer or chief financial officer of the Borrower (i) in the case of
deliveries under Section 6.01(a) or 6.01(b) above, demonstrating compliance with
the financial covenants contained in Section 7.19 by calculation thereof as of
the end of each such fiscal period, (ii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist, specifying the
nature and extent thereof and what action the Borrower proposes to take with
respect thereto and (iii) stating whether, since the date of the most recent
financial statements delivered hereunder, there has been any material change in
the generally accepted accounting principles applied in the preparation of the
financial statements of the Borrower and its Consolidated Subsidiaries, and, if
so, describing such change. In connection with the delivery of each Compliance
Certificate pursuant to this Section 6.01(c), the Borrower shall deliver to the
Administrative Agent a Perfection Certificate Supplement to the extent required
in accordance with Section 6.11, Section 6.12 or Section 6.13, together with a
statement of such officer, certifying that as of the date thereof, after giving
effect to the Perfection Certificate Supplement, the representations and
warranties in Article V hereof are true and correct in all material respects.
(d) Annual Business Plan and Budgets. As soon as possible, but in no
case more than 60 days after the end of each prior fiscal year of the Borrower
(commencing with
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fiscal year ended 2006), an annual business plan and budget of the Borrower and
its Consolidated Subsidiaries containing, among other things, projected
financial forecasts in the form of financial statements for the next fiscal
year.
(e) Compliance With Certain Provisions of this Agreement. Within 90
days after the end of each fiscal year of the Borrower, a certificate containing
information regarding (i) the calculation of Excess Cash Flow for the prior
fiscal year and (ii) the amount of Net Cash Proceeds from Asset Dispositions
(other than Excluded Asset Dispositions), Debt Issuances (other than Excluded
Debt Issuances) and Equity Issuances (other than Excluded Equity Issuances) that
were made during the prior fiscal year.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to any
Consolidated Party in connection with any annual, interim or special audit of
the books of such Consolidated Party.
(g) Reports. Promptly (i) upon transmission or receipt thereof copies
of all filings and registrations with, and reports to or from, the SEC, or any
successor agency, and copies of all financial statements, proxy statements,
notices and reports any Consolidated Party shall send to its shareholders or to
a holder of any Indebtedness owed by any Consolidated Party in its capacity as
such a holder, including, without limitation, copies of all reports and other
information delivered to the Senior Subordinated Noteholders pursuant to the
terms of the Senior Subordinated Note Purchase Agreement, and (ii) upon the
request of the Administrative Agent or the Required Lenders, all reports and
written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration, or any state or
local agency responsible for occupational health and safety matters, or any
successor agencies or authorities concerning material environmental or
occupational health and safety matters.
(h) Notices. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Administrative Agent immediately of (i) the occurrence of
any event or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Borrower proposes to take
with respect thereto, and (ii) the occurrence of any of the following with
respect to any Consolidated Party: (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person which if
adversely determined could reasonably be expected to have a Material Adverse
Effect; or (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential liability or
responsibility (direct or indirect) for violation, or alleged violation of any
federal, state or local law, rule or regulation, including Environmental Laws,
the violation of which could reasonably be expected to have a Material Adverse
Effect; or (iii) determination by the Registered Public Accounting Firm
providing the opinion required under Section 6.01(a)(ii) (in connection with its
preparation of the opinion) or the Borrower's determination at any time of the
occurrence or the existence of any Internal Control Event, but only in the case
of this subclause (iii) if and when the Borrower consummates an IPO or becomes
subject to regulation by the SEC.
(i) ERISA. The Borrower will give written notice to the Administrative
Agent promptly (and in any event within ten Business Days after any officer of
any Consolidated
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Party obtains knowledge thereof) of: (i) any event or condition, including any
Reportable Event, that constitutes, or is reasonably likely to lead to, an ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed against
the Borrower or any of its ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which any Consolidated Party
or any ERISA Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth in ERISA
and the Code with respect thereto; or (iv) any change in the funding status of
any Plan that could have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a statement by
the chief financial officer of the Borrower briefly setting forth the details
regarding such event, condition or notice and the action, if any, which has been
or is being taken or is proposed to be taken by the Borrower with respect
thereto. Promptly upon request, the Consolidated Parties shall furnish the
Administrative Agent and the Lenders with such additional information concerning
any Plan as may be reasonably requested, including copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each "plan
year" (within the meaning of Section 3(39) of ERISA).
(j) Environmental.
(i) Upon the reasonable written request of the Administrative
Agent, the Consolidated Parties will furnish or cause to be furnished to
the Administrative Agent, at the cost of the Borrower, a report of an
environmental assessment of reasonable scope, form and depth (including,
where appropriate, invasive soil or groundwater sampling) by a consultant
acceptable to the Administrative Agent addressing the nature and extent of
the presence of any Materials of Environmental Concern on any Company
Properties or the compliance by any Consolidated Party with Environmental
Laws at the Company Properties. If any Consolidated Party fails to deliver
such an environmental report within sixty (60) days after receipt of such
written request, then the Administrative Agent may arrange for the same,
and the Borrower hereby grant, and agree to cause the other Consolidated
Parties to grant, to the Administrative Agent and their representatives
reasonable access to the Company Properties to reasonably undertake such an
assessment (including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged by the
Administrative Agent pursuant to this provision shall be payable by the
Borrower on demand and shall be added to the obligations secured by the
Collateral Documents.
(ii) The Consolidated Parties will conduct and complete all
investigations, studies, sampling, and testing and all remedial, removal
and other actions necessary to address all Materials of Environmental
Concern on, from or affecting any of the Company Properties as necessary to
be in compliance with all Environmental Laws and with the validly issued
orders and directives of all Governmental Authorities with jurisdiction
over the Company Properties, to the extent any failure to take the
foregoing actions could reasonably be expected to have a Material Adverse
Effect. The Borrower acknowledges and agrees that if any Consolidated Party
fails to perform any of the
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actions required under this Section 6.01(j)(ii), the Administrative Agent
shall have the right (but not the obligation) to do so for such
Consolidated Party. The Borrower further acknowledges and agrees that if
any Consolidated Party fails to cooperate (e.g., by allowing access to any
premises or permitting the drilling of core samples, etc.), the
Administrative Agent and the Lenders will not have an adequate remedy at
law.
(k) Accounting Policies. The Borrower shall promptly provide notice of
material changes in accounting polices or financial reporting practices of any
Consolidated Party.
(l) Material Adverse Effect. The Borrower shall promptly provide
notice of any facts or circumstances which could reasonably be expected to have
a Material Adverse Effect.
(m) Other Information. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of any Consolidated Party as the Administrative Agent or the Required
Lenders may reasonably request.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Sole Lead Arranger will make available to the Lenders and the Issuing Lender
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Credit Party Materials") by posting the Credit Party Materials
on IntraLinks or another similar electronic system (the "Platform") and (b)
certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to the Borrower or
its securities) (each, a "Public Lender"). The Borrower hereby agrees that (i)
all Credit Party 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; (ii)
by marking Credit Party Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent, the Sole Lead Arranger, the Issuing Lender
and the Lenders to treat the Credit Party Materials as not containing any
material non-public information with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws (provided,
however, that to the extent the Credit Party Materials constitute Information,
they shall be treated as set forth in Section 10.13): (iii) all Credit Party
Materials marked "PUBLIC" are permitted to be made available through a portion
of the Platform designated "Public Investor;" and (iv) the Administrative Agent
and the Sole Lead Arranger shall be entitled to treat any Credit Party Materials
that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not designated "Public Investor."
SECTION 6.02 PRESERVATION OF EXISTENCE, FRANCHISES AND CORPORATE
FORMALITIES. Except as a result of or in connection with a dissolution, merger
or disposition of a Subsidiary permitted under Section 7.04 or Section 7.05,
each of the Consolidated Parties will do all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises
and authority.
SECTION 6.03 BOOKS AND RECORDS. Each of the Consolidated Parties will
keep complete and accurate books and records of its transactions in accordance
with good accounting
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practices on the basis of GAAP (including the establishment and maintenance of
appropriate reserves).
SECTION 6.04 COMPLIANCE WITH LAW. Each of the Consolidated Parties
will comply with all Requirements of Law, including Environmental Laws,
applicable to it and its Properties to the extent that noncompliance with any
such Requirement of Law could reasonably be expected to have a Material Adverse
Effect.
SECTION 6.05 PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Each of the
Consolidated Parties will pay and discharge (a) (i) tax liabilities (including
federal, state, local and foreign) and (ii) all other assessments and other
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its Properties, before they shall become delinquent, except in
the case of subclause (a)(ii), those in an aggregate amount not to exceed
$50,000 (b) except as could not reasonably be expected to have a Material
Adverse Effect, all lawful claims (including claims for labor, materials and
supplies) which, if unpaid, might give rise to a Lien upon any of its
Properties, and (c) except as prohibited hereunder or as could not reasonably be
expected to have a Material Adverse Effect, all of its other Indebtedness as it
shall become due; provided, however, that no Consolidated Party shall be
required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which is being contested in good faith by appropriate proceedings diligently
pursued and as to which adequate reserves therefor have been established in
accordance with GAAP, unless the failure to make any such payment (i) could give
rise to an immediate right to foreclose on a Lien securing such amounts or (ii)
could reasonably be expected to have a Material Adverse Effect.
SECTION 6.06 INSURANCE; CERTAIN PROCEEDS. (a) (i) Each of the
Consolidated Parties will at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability insurance,
casualty insurance and business interruption insurance) in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice (or as are
otherwise required by the Collateral Documents), it being agreed and understood
that the insurance maintained by each Consolidated Party as of the Closing Date
is sufficient for purposes of this Section 6.06(a)(i); provided that there is no
material change in (A) the business of any Consolidated Party as conducted on
the Closing Date, (B) the normal insurance industry standards applicable to each
Consolidated Party or (C) the regulatory requirements applicable to any
Consolidated Party; (ii) the Administrative Agent shall be named as loss payee
or mortgagee, as its interest may appear, with respect to all such property and
casualty policy and additional insured with respect to all such other policies
(other than workers' compensation and employee health policies), and each
provider of any such insurance shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the
Administrative Agent, that if the insurance carrier shall have received written
notice from the Administrative Agent of the occurrence of an Event of Default,
the insurance carrier shall pay all proceeds otherwise payable to the
Consolidated Parties under such policies directly to the Administrative Agent
(which agreement shall be evidenced by a "standard" or "New York" Lender's loss
payable endorsement in the name of the Administrative Agent on ▇▇▇▇▇ Form 27 or
a similar form) and that it will give the Administrative Agent thirty (30) days'
prior written notice before any such policy or policies shall be altered or
canceled, and that no act or default of
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any Consolidated Party or any other Person shall affect the rights of the
Administrative Agent or the Lenders under such policy or policies.
(b) In case of any Casualty or Condemnation resulting in a loss of
Property in excess of $100,000 in the aggregate of any Consolidated Party or any
part thereof, the Borrower shall promptly give written notice thereof to the
Administrative Agent generally describing the nature and extent of such damage,
destruction or taking. In such case, the Borrower shall, or shall cause such
Consolidated Party to, promptly repair, restore or replace the Property of such
Consolidated Party (or part thereof) which was subject to such Casualty or
Condemnation, at such Consolidated Party's cost and expense, whether or not the
Insurance Proceeds or Condemnation Award, if any, received on account of such
event shall be sufficient for that purpose; provided, however, that such
Property need not be repaired, restored or replaced to the extent the failure to
make such repair, restoration or replacement (i)(A) is desirable to the proper
conduct of the business of such Consolidated Party in the ordinary course and
otherwise in the best interest of such Consolidated Party and (B) would not
materially impair the rights and benefits of the Administrative Agent or the
Secured Parties under the Collateral Documents or any other Senior Credit
Document or (ii) the failure to repair, restore or replace the Property is
attributable to the application of the Insurance Proceeds from such Casualty or
the Condemnation Award from such Condemnation to payment of the Senior Credit
Obligations in accordance with the following provisions of this Section 6.06(b).
In the event a Consolidated Party shall receive any Insurance Proceeds from a
Casualty or Condemnation Award from a Condemnation, such Consolidated Party will
immediately pay over such proceeds to the Administrative Agent, for payment of
the Senior Credit Obligations in accordance with Section 3.03(b) or, if such
funds constitute Reinvestment Funds, to be held by the Borrower or the
Administrative Agent, as the case may be. The Administrative Agent agrees to
release such Insurance Proceeds or Condemnation Awards to the Borrower upon its
request and as needed from time to time to pay for the repair, restoration or
replacement of the portion of the Property subject to such Casualty or
Condemnation if, but only if, the conditions set forth in the definition of
"Reinvestment Funds" are satisfied at the time of such request.
(c) In connection with the covenants set forth in this Section 6.06,
it is understood and agreed that:
(i) none of the Administrative Agent, the Lenders or their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 6.06, it being understood that (A) the Consolidated Parties shall
look solely to their insurance companies or any other parties other than
the aforesaid parties for the recovery of such loss or damage and (B) such
insurance companies shall have no rights of subrogation against the
Administrative Agent, the Lenders or their agents or employees. If,
however, the insurance policies do not provide waiver of subrogation rights
against such parties, as required above, then the Borrower hereby agrees
to, and to cause each of the Consolidated Parties to, waive its right of
recovery, if any, against the Administrative Agent, the Lenders and their
agents and employees, to the extent permitted by law;
(ii) the Consolidated Parties will permit an insurance consultant
retained by the Administrative Agent, at the expense of the Borrower, to
review from
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time to time the insurance policies maintained by the Consolidated Parties
annually or upon the occurrence of an Event of Default; and
(iii) the Required Lenders shall have the right from time to time
to require the Consolidated Parties to keep other insurance in such form
and amount as the Administrative Agent or the Required Lenders may
reasonably request; provided that such insurance shall be kept by
comparable companies in accordance with normal industry practice and shall
be obtainable on commercially reasonable terms; and provided further that
the designation of any form, type or amount of insurance coverage by the
Administrative Agent or the Required Lenders under this Section 6.06 shall
in no event be deemed a representation, warranty or advice by the
Administrative Agent or the Lenders that such insurance is adequate for the
purposes of the business of the Consolidated Parties or the protection of
their properties.
SECTION 6.07 MAINTENANCE OF PROPERTY. Each of the Consolidated Parties
will maintain and preserve its properties and equipment material to the conduct
of its business in good repair, working order and condition, normal wear and
tear and Casualty and Condemnation excepted, and will make, or cause to be made,
as to such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses and to the extent deemed desirable by such Consolidated Party
in its reasonable business judgment.
SECTION 6.08 PERFORMANCE OF OBLIGATIONS. Each of the Consolidated
Parties will perform in all material respects all of its obligations under the
terms of all material agreements, indentures, mortgages, security agreements or
other debt instruments to which it is a party or by which it is bound.
SECTION 6.09 USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans and will use the Letters of Credit solely for the purposes set forth
in Section 5.15.
SECTION 6.10 AUDITS/INSPECTIONS. Upon reasonable notice and during
normal business hours, each of the Consolidated Parties will permit
representatives appointed by the Administrative Agent or the Required Lenders,
including independent accountants, agents, employees, attorneys and appraisers,
to visit and inspect its Property, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such representatives obtain, and shall permit the Administrative
Agent or such representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees, independent accountants, attorneys and representatives of
the Consolidated Parties (at the Borrower's election, with a representative of
the Borrower present at any third-party discussions). Further, each of the
Consolidated Parties agrees to permit representatives appointed by the
Administrative Agent or the Required Lenders to conduct an annual field audit to
investigate and verify the accuracy of reported revenues and accounts receivable
and the adequacy of accounts receivable reserves, such annual field audit to be
at the expense of the Borrower. The Borrower agrees that the Administrative
Agent and their
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representatives, may conduct an audit of the Collateral, at the expense of the
Borrower, annually or upon the occurrence of an Event of Default.
SECTION 6.11 ADDITIONAL NON-REGULATED SUBSIDIARIES. As soon as
practicable, and in any event within fifteen (15) Business Days after any Person
becomes a direct or indirect Domestic Subsidiary of the Borrower, which is not a
Regulated Subsidiary, the Borrower shall provide the Administrative Agent with a
Perfection Certificate Supplement duly completed for such Subsidiary
supplementing the information for the Credit Parties and Subsidiary Grantors to
the date thereof, describing in reasonable detail the assets of such Person and
shall (a)(i) cause such Person to become a Subsidiary Guarantor by executing and
delivering a Joinder Agreement and such other documents as the Administrative
Agent shall reasonably deem appropriate for such purpose; (ii) perfect and
maintain the validity, effectiveness and priority of any security interests in
all its personal property, assets, Capital Stock and all proceeds and
accessories therefrom to secure the Senior Credit Obligations as further set
forth herein and in the Collateral Documents by executing and delivering a
Joinder Agreement in the capacity as Subsidiary Grantor and such other documents
as the Administrative Agent shall reasonably deem appropriate for such purpose,
and (iii) become a party to or execute all applicable Collateral Documents, as
reasonably determined by the Administrative Agent and such other documents as
the Administrative Agent shall reasonably deem appropriate for such purpose; (b)
pledge, or cause a Subsidiary Grantor, as appropriate, to pledge, and maintain a
pledge of one hundred percent (100%) of the Capital Stock of such Subsidiary
pursuant to the terms of the Collateral Documents, and (c) deliver, and cause
such Person to deliver, to the Administrative Agent documents to the extent
reasonably deemed appropriate by the Administrative Agent including appropriate
UCC-1 financing statements, termination statements, account control agreements,
landlord waivers (to the extent required under the terms of the Pledge and
Security Agreement), certified resolutions and other organizational documents
and secretary's certificate with incumbency information, of such Person and, if
reasonably requested by the Administrative Agent, favorable opinions to counsel
of such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent's Liens thereunder and the priority
thereof), all in form, content and scope reasonably satisfactory to the
Administrative Agent.
SECTION 6.12 ADDITIONAL REGULATED SUBSIDIARIES. (a) As soon as
practicable, and in any event within fifteen (15) Business Days after any Person
becomes a direct or indirect Domestic Subsidiary of the Borrower, which is a
Regulated Subsidiary, the Borrower shall provide the Administrative Agent with a
Perfection Certificate Supplement duly completed for such Subsidiary
supplementing the information for the Credit Parties and Subsidiary Grantors to
the date thereof, describing in reasonable detail the Capital Stock and
Intercompany Notes and related Collateral of such Person and the Borrower or
Subsidiary Grantor, as appropriate, shall pledge and maintain a pledge of one
hundred percent (100%) of the Capital Stock and Intercompany Notes of such
Subsidiary pursuant to the terms of the Collateral Documents and (b) deliver,
and cause such Person to deliver, to the Administrative Agent documents to the
extent deemed appropriate by the Administrative Agent, including appropriate
UCC-1 financing statements, termination statements, certified resolutions and
other organizational documents and a secretary's certificate with incumbency
information, of the Borrower or Subsidiary as appropriate, and, if reasonably
requested by the Administrative Agent, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, binding effect and
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enforceability of the documentation referred to above and the perfection of the
Administrative Agent's Liens thereunder and the priority thereof), all in form,
content and scope reasonably satisfactory to the Administrative Agent.
(b) In the event any Domestic Subsidiary shall at any time cease to be
a Regulated Subsidiary, the Borrower shall, and shall cause the Domestic
Subsidiary to, comply with Section 6.11.
SECTION 6.13 FURTHER ASSURANCES WITH RESPECT TO COLLATERAL. Execute,
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to comply with the terms of this Agreement and the other
Senior Credit Documents, including causing, to the fullest extent permitted by
law, (i) the Collateral to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent on behalf of the Secured
Parties pursuant to the Collateral Documents, and (ii) the pledge of the Capital
Stock of the Subsidiaries of the Borrower which is subject to pledges pursuant
to the Pledge and Security Agreement, in each case to secure all the Senior
Credit Obligations, all at the expense of the Borrower.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this
Agreement is in effect or any amounts payable hereunder or under any other
Senior Credit Document shall remain outstanding and until all of the Commitments
hereunder shall have terminated and all Letters of Credit shall have expired or
been cancelled:
SECTION 7.01 INDEBTEDNESS. None of the Consolidated Parties will
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Agreement and the other Senior
Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries in existence on
the Closing Date to the extent disclosed in Schedule 7.01 (and renewals,
refinancings and extensions thereof on terms and conditions no less favorable to
the Borrower or such Subsidiaries than the terms and conditions of such existing
Indebtedness, so long as the principal amount thereof is not increased);
(c) Indebtedness (including Capital Leases) incurred by the
Subsidiaries of the Borrower after the Closing Date solely to finance or
refinance the purchase of fixed assets directly related to the business of such
Subsidiaries on the Closing Date, in each case acquired after the Closing Date
in the ordinary course of business; provided that (i) the total of all such
Indebtedness for the Subsidiaries of the Borrower taken together, together with
the total of all Indebtedness of the Borrower and its Subsidiaries incurred
pursuant to Section 7.01(f) below, shall not exceed an aggregate principal
amount of $5,000,000 at any time outstanding, (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed,
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(iii) such Indebtedness is secured by a purchase money Lien on the assets so
acquired, and (iv) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the time of
such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries in respect
of Interest Rate Protection Agreements entered into in order to limit exposure
to floating rate indebtedness of the Borrower or any of its Subsidiaries and not
for speculative purposes;
(e) intercompany Indebtedness of any Subsidiaries of the Borrower
arising out of loans and advances permitted under Section 7.06; provided that
the disposition, pledge or transfer of such Indebtedness to a Person other than
the Borrower or a Wholly-Owned Subsidiary of the Borrower or the occurrence of
any event pursuant to which the obligor with respect to such Indebtedness is no
longer the Borrower or a Wholly-Owned Subsidiary of the Borrower shall
constitute an incurrence of Indebtedness that is not permitted by this
subsection (e);
(f) in addition to the Indebtedness otherwise permitted by this
Section 7.01, other Indebtedness incurred after the Closing Date by the Borrower
or its Subsidiaries; provided that (i) no Default or Event of Default shall have
occurred and be continuing immediately before or immediately after giving effect
to such incurrence and (ii) the aggregate principal amount of such Indebtedness
plus the aggregate principal amount of Indebtedness permitted pursuant to
Section 7.01(c) above shall not exceed $5,000,000 at any time outstanding;
(g) the Convertible Preferred Stock outstanding on the Closing Date in
an aggregate amount of no more than $131,325,000;
(h) any Perpetual Preferred Stock to be issued in connection with the
Convertible Preferred Stock outstanding on the Closing Date;
(i) Indebtedness of the Borrower under the Senior Subordinated Note
Purchase Agreement in an aggregate principal amount not to exceed $36,000,000
(minus the amount of any Senior Subordinated Notes that may be prepaid from time
to time in compliance with this Agreement, if any);
(j) Indebtedness of the Borrower and its Subsidiaries incurred under
any Cash Management Services Agreement; and
(k) Indebtedness assumed in connection with Permitted Acquisitions to
the extent such Indebtedness was not created in anticipation of such Permitted
Acquisition; provided that (i) no Default or Event of Default shall have
occurred and be continuing immediately before or immediately after giving effect
to such incurrence and (ii) the aggregate principal amount of such Indebtedness
incurred during the term of this Agreement shall not exceed $10 million.
SECTION 7.02 LIENS. None of the Consolidated Parties will contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or hereafter acquired, except for Permitted Liens.
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SECTION 7.03 NATURE OF BUSINESS. None of the Consolidated Parties will
substantively alter in any material respect the character or conduct of the
business conducted by such Person as of the Closing Date.
SECTION 7.04 CONSOLIDATION, MERGER, DISSOLUTION, ETC. Except in
connection with an Asset Disposition permitted by the terms of Section 7.05,
none of the Consolidated Parties will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 7.04:
(a) any Wholly-Owned Subsidiary of the Borrower may merge or
consolidate with any other Wholly-Owned Subsidiary of the Borrower; provided
that (i) no Default or Event of Default shall have occurred and be continuing
immediately before or immediately after giving effect to such transaction and
(ii) if either party to such merger or consolidation is a Credit Party, then
such Credit Party shall be the continuing or surviving corporation in such
merger or consolidation and shall not be or become a Regulated Subsidiary as a
result thereof;
(b) any Consolidated Party which is not a Credit Party may be merged
or consolidated with or into any Credit Party; provided that (i) such Credit
Party shall be the continuing or surviving corporation in such merger or
consolidation, and shall not be or become a Regulated Subsidiary as a result
thereof, (ii) the Credit Parties and Subsidiary Grantors, as applicable, shall
cause to be executed and delivered such documents, instruments and certificates
as the Administrative Agent may reasonably request to comply with the terms of
Section 6.11, Section 6.12 and Section 6.13 after giving effect to such
transaction, and (iii) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
transaction;
(c) any Consolidated Party which is not a Credit Party may be merged
or consolidated with or into any other Consolidated Party which is not a Credit
Party; provided that no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
transaction;
(d) any Subsidiary of the Borrower may merge with any Person (other
than a Consolidated Party) in connection with a Permitted Acquisition if (i)
such Subsidiary shall be the continuing or surviving corporation in such merger
or consolidation and, in the case of a Subsidiary Guarantor, such Person shall
not be or become a Regulated Subsidiary as a result thereof, (ii) the Credit
Parties and the Subsidiary Grantors, as applicable, shall cause to be executed
and delivered such documents, instruments and certificates as the Administrative
Agent may request to comply with the terms of Section 6.11, Section 6.12 and
Section 6.13 after giving effect to such transaction, (iii) no Default or Event
of Default shall have occurred and be continuing immediately before or
immediately after giving effect to such transaction and (iv) the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect on a Pro Forma Basis to such transaction,
the Borrower and its Consolidated Subsidiaries shall be in compliance with all
of the financial covenants set forth in Section 7.19 as of the last day of the
most recent period of four consecutive fiscal quarters of the Borrower which
precedes or ends on the date of such transaction and with respect to which the
Administrative Agent has received the Required Financial Information; and
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(e) (i) DHMI may be merged or consolidated with or into any Credit
Party; provided that (A) such Credit Party shall be the continuing or surviving
corporation in such merger or consolidation, and shall not become a Regulated
Subsidiary as a result thereof, (B) the Credit Parties and Subsidiary Grantors,
as applicable, shall cause to be executed and delivered such documents,
instruments and certificates as the Administrative Agent may reasonably request
to comply with the terms of Section 6.11, Section 6.12 and Section 6.13 after
giving effect to such transaction and (C) no Default or Event of Default shall
have occurred and be continuing immediately before or after giving effect to
such transaction; and (ii) the Inactive Subsidiary may dissolve, liquidate or
wind up its affairs at any time, provided that no Default or Event of Default
shall have occurred and be continuing immediately before or after giving effect
to such transaction.
SECTION 7.05 ASSET DISPOSITIONS. None of the Consolidated Parties will
make any Asset Disposition (other than a Casualty or Condemnation); provided
that the foregoing provisions of this Section 7.05 shall not prohibit the
following:
(a) any Excluded Asset Disposition; and
(b) any other Asset Disposition; provided that (i) the consideration
received in connection therewith is at least 75% cash or Cash Equivalents; (ii)
if such transaction is a Sale and Leaseback Transaction, such transaction is
permitted by the terms of Sections 7.01 and 7.13; (iii) such transaction does
not involve the sale or other disposition of a minority equity interest in any
Consolidated Party; (iv) the Subsidiary of the Borrower receives consideration
at the time of such Asset Disposition at least equal to the fair market value of
the assets being disposed of (as determined in good faith by the board of
directors of the Subsidiary and evidenced by a resolution set forth in an
officer's certificate, including as to the value of all noncash consideration);
(v) the aggregate fair market value of all of the assets sold or otherwise
disposed of by the Consolidated Parties in all such transactions in reliance on
this paragraph shall not exceed $5,000,000 in the aggregate from and after the
Closing Date; and (vi) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
transaction and the Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro
Forma Basis to such transaction, the Borrower and its Consolidated Subsidiaries
shall be in compliance with all of the financial covenants set forth in Section
7.19.
Upon consummation of an Asset Sale permitted by this Section 7.05, all
security interests of the Administrative Agent and the Secured Parties with
respect to the assets being disposed of, but not including the proceeds thereof,
shall be automatically terminated and the Administrative Agent shall (to the
extent applicable) deliver to the Borrower, upon the Borrower's request and at
the Borrower's expense, such documentation as is reasonably necessary to
evidence the release of the Administrative Agent's security interest, if any, in
the assets being disposed of, including amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any, and the
release of any Subsidiary being disposed of in its entirety from all of its
obligations, if any, under the Senior Credit Documents.
SECTION 7.06 INVESTMENTS; ACQUISITIONS. None of the Consolidated
Parties will make any Investment in, to or for the benefit of any Person or
purchase, lease or otherwise
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acquire (in one transaction or a series of transactions) all or any substantial
part of the assets of any other Person; provided that any Consolidated Party
(other than the Borrower) may purchase inventory in the ordinary course of
business and any Consolidated Party may make Permitted Investments to the extent
permitted under the definition thereof.
SECTION 7.07 RESTRICTED PAYMENTS. None of the Consolidated Parties
will, directly or indirectly, declare, order, make or set apart any sum for or
pay any Restricted Payment, except (a) dividends payable solely in common stock
of such Person, (b) Permitted Tax Dividends, (c) dividends or other
distributions payable to the Borrower or any Wholly-Owned Subsidiary of the
Borrower, (d) repurchases of common stock of the Borrower from any employee of
the Consolidated Parties (other than any such Person which is a director,
officer or employee of or holder of Capital Stock of any of the Sponsors or any
of their respective Affiliates) upon the termination of employment of such
Person; provided that such repurchase is approved by the board of directors of
the Borrower in good faith and the aggregate amount paid in all such repurchases
shall not exceed $2,000,000 in the aggregate from and after the Closing Date,
(e) cash advances made or cash dividends paid by the Subsidiaries of the
Borrower to the Borrower which advances or dividends are used solely to fund
administrative and other miscellaneous expenses incurred in the ordinary course
of business by the Borrower in accordance with Section 7.12(b); provided that
after giving effect to any such dividend, the Borrower shall be in pro forma
compliance with all financial covenants contained in this Agreement and (f)
redemptions of any Convertible Preferred Stock to the extent permitted by clause
(b) of the definition of Qualifying Equity Issuance.
SECTION 7.08 PREPAYMENTS OF INDEBTEDNESS, ETC. None of the
Consolidated Parties will (a) after the issuance thereof, amend, waive or modify
(or permit the amendment, waiver or modification of) any of the terms,
agreements, covenants or conditions of or applicable to the Senior Subordinated
Notes or any other Senior Subordinated Note Purchase Document, (b) after the
issuance thereof, amend, waive or modify (or permit the amendment, waiver or
modification of) any of the terms, agreements, covenants or conditions of or
applicable to any other Indebtedness issued by such Consolidated Party if such
amendment, waiver or modification would add or materially change any terms,
agreements, covenants or conditions in a manner materially adverse to any
Consolidated Party, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or materially
increase the interest rate applicable thereto or change any subordination
provision thereof, (c) directly or indirectly redeem, purchase, prepay, retire,
defease or otherwise acquire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Senior Subordinated Note or any
Capital Stock (except to the extent any Convertible Preferred Stock shall be
held and redemption thereof is permitted in accordance with clause (b) of the
definition of Qualifying Equity Issuance) issued pursuant to any Senior
Subordinated Note Purchase Document, (d) directly or indirectly redeem,
purchase, prepay, retire, defease or otherwise acquire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness (other than Senior Credit Obligations) or Preferred Stock of the
Borrower (except the redemption of any Convertible Preferred Stock to the extent
permitted by clause (b) of the definition of Qualifying Equity Issuance) or set
aside any funds for such purpose, whether such redemption, purchase, prepayment,
retirement or acquisition is made at the option of any Consolidated Party or at
the option of the holder thereof, and whether or not any such redemption,
purchase, prepayment, retirement or acquisition is required under the terms
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and conditions applicable to such Indebtedness or Preferred Stock or (e)
release, cancel, compromise or forgive in whole or in part the Indebtedness
evidenced by the Intercompany Notes.
SECTION 7.09 TRANSACTIONS WITH AFFILIATES. None of the Consolidated
Parties will engage in any transaction or series of transactions with (a) an
officer, director, holder of Capital Stock, Subsidiary or Affiliate of any
Consolidated Party, (b) any Affiliate of any such officer, director, holder,
Subsidiary or Affiliate or (c) the Sponsors or any officer, director, holder of
Capital Stock, Subsidiary or Affiliate of the Sponsors, other than (i) transfers
of assets to any Credit Party permitted by Section 7.05, (ii) transactions
expressly permitted by Section 7.01, Section 7.04, Section 7.05, Section 7.06 or
Section 7.07, (iii) reasonable compensation and reimbursement by the
Subsidiaries of the Borrower of reasonable expenses of officers and directors of
the such Subsidiaries, in each case which expenses were incurred on behalf such
Subsidiaries, (iv) any transaction entered into among the Borrower and its
Wholly-Owned Subsidiaries or among such Wholly-Owned Subsidiaries of the
Borrower which are Subsidiary Guarantors, and (v) so long as no Default or Event
of Default has occurred and is continuing, other transactions which are engaged
in by any Consolidated Party in the ordinary course of its business on terms and
conditions as favorable to such Person as would be obtainable by it in a
comparable arms'-length transaction with an independent, unrelated third party.
None of the Consolidated Parties will enter into any management, employment,
consulting or similar agreement or arrangement with, or otherwise pay any
professional, consulting management or similar fees to or for the benefit of,
the Sponsors, any members of their families, any Affiliates of the Sponsors or
such family members, any director, officer or security holder of any of the
foregoing, other than for the payment or reimbursement of fees and expenses to
the directors of the Borrower not to exceed $250,000 in any fiscal year.
SECTION 7.10 FISCAL YEAR; ORGANIZATIONAL AND CERTAIN OTHER DOCUMENTS.
None of the Consolidated Parties will (a) change its fiscal year or (b) amend,
modify or change its articles of incorporation (or corporate charter or other
similar organizational document) or any Capital Stock of the Borrower or any
Subsidiary or any other documents establishing and setting forth the rights and
terms thereof in any respect or amend, modify or change its bylaws (or other
similar document), in each case in any manner adverse in any respect to the
rights or interests of the Lenders or (c) enter into any amendment, modification
or waiver that is materially adverse in any respect to the Lenders, in their
reasonable discretion to (i) the Registration Rights Agreement as in effect on
the Closing Date, (ii) the Shareholders Agreement as in effect on the Closing
Date or (iii) the Stock Option Plan as in effect on the Closing Date. The Credit
Parties will cause the Consolidated Parties to promptly provide the Lenders (i)
with copies of all proposed amendments to the foregoing documents and
instruments as in effect as of the Closing Date and (ii) with notice of any
amendment, modification or waiver that is materially adverse in any respect to
the Lenders, and copies of each such amendment, modification or waiver to each
Lender upon request.
SECTION 7.11 LIMITATION ON RESTRICTED ACTIONS. None of the
Consolidated Parties will, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any such Person to (a) pay dividends or make any other
distributions to any Credit Party or Subsidiary Grantor on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits, (b) pay any
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Indebtedness or other obligation owed to any Credit Party, (c) make loans or
advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party or (e) act as a guarantor and/or pledge its stock
and/or assets pursuant to the Senior Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in subsections (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Agreement
and the other Senior Credit Documents, (ii) applicable law, (iii) any document
or instrument governing Indebtedness incurred pursuant to Section 7.01(c);
provided that any such restriction contained therein relates only to the asset
or assets constructed or acquired or financed in connection therewith (and any
renewals, refinancings, exchanges, refundings or extensions thereof, so long as
the terms of such encumbrances or restrictions are no more onerous than those
with respect to such Indebtedness upon the original incurrence thereof), (iv)
any restrictions existing under the Senior Subordinated Note Purchase Documents
as in effect on the Closing Date with such changes as expressly permitted by
this Agreement, or (v) customary non-assignment provisions in any lease
governing a leasehold interest,
SECTION 7.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON THE BORROWER.
(a) The Borrower will not (i) permit any Person (other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower) to own any Capital Stock of any
Subsidiary of the Borrower, (ii) permit any Subsidiary of the Borrower to issue
Capital Stock to any Person, except the Borrower or any Wholly-Owned Subsidiary
of the Borrower or (iii) permit any Subsidiary of the Borrower to issue any
shares of Preferred Stock.
(b) The Borrower shall not (i) hold any assets other than the Capital
Stock of CompBenefits Dental and DHMI; (ii) have any material liabilities other
than (A) liabilities under the Senior Credit Documents and the Senior
Subordinated Note Purchase Documents and (B) tax liabilities in the ordinary
course of business; (iii) engage in any business or activity other than (A)
owning the Capital Stock of CompBenefits Dental and DHMI (including purchasing
additional shares of Capital Stock after the Closing Date) and activities
incidental or related thereto or to the maintenance of the corporate existence
of the Borrower or compliance with applicable law, (B) pledging the Capital
Stock of its Subsidiaries, and granting a first priority security interest in
its assets, to the Administrative Agent for the benefit of the Secured Parties,
pursuant to the Collateral Documents to which it is a party, (C) liabilities for
reasonable legal, accounting and other administrative expenses, and (D)
liabilities under the Shareholders Agreement, the Registration Rights Agreement,
Stock Option Plans and the Senior Subordinated Note Purchase Documents, each as
in effect on the Closing Date, with such changes as expressly permitted by this
Agreement; (iv) issue any additional Preferred Stock; or (v) engage in any
business or activity other than performing its obligations under the Senior
Credit Documents, and under the Senior Subordinated Note Purchase Documents but
only to the extent not prohibited under this Agreement.
(c) CompBenefits Dental and DHMI (i) will not permit any Person other
than the Borrower to hold any Capital Stock of CompBenefits Dental or DHMI (or
any warrants, securities, options or other rights exercisable for, convertible
into or exchangeable for common stock) and (ii) will not permit the Borrower to
hold any Capital Stock of CompBenefits Dental or DHMI other than outstanding
shares of common stock.
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SECTION 7.13 SALE LEASEBACKS. None of the Consolidated Parties will,
directly or indirectly, become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any Property (whether real or personal or mixed), whether now owned or
hereafter acquired, (a) which such Consolidated Party has sold or transferred or
is to sell or transfer to a Person which is not a Consolidated Party or (b)
which such Consolidated Party intends to use for substantially the same purpose
as any other Property which has been sold or is to be sold or transferred by
such Consolidated Party to another Person which is not a Consolidated Party in
connection with such lease.
SECTION 7.14 NO FURTHER NEGATIVE PLEDGES. None of the Consolidated
Parties will enter into, assume or become subject to any agreement prohibiting
or otherwise restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or requiring the
grant of any security for such obligation if security is given for some other
obligation, except (a) pursuant to this Agreement and the other Senior Credit
Documents, (b) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 7.01(c); provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith, and (c) pursuant to the Senior Subordinated Note Purchase
Documents.
SECTION 7.15 OPERATING LEASE OBLIGATIONS. None of the Consolidated
Parties will enter into, assume or permit to exist any obligations for the
payment of rent under Operating Leases relating to personalty which in the
aggregate for the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, exceed or would exceed $2,000,000 in any fiscal year of the
Borrower.
SECTION 7.16 NO FOREIGN SUBSIDIARIES. None of the Consolidated Parties
will create, acquire or permit to exist any direct or indirect Foreign
Subsidiary of any Consolidated Party.
SECTION 7.17 IMPAIRMENT OF SECURITY INTERESTS; USE OF PROCEEDS. (a)
None of the Consolidated Parties will take or omit to take any action, which
action or omission might or would have the result of materially impairing the
security interests in favor of the Administrative Agent on behalf of the Secured
Parties with respect to the Collateral; provided, however, that no Consolidated
Party shall be obligated to (i) prosecute any application for or (ii) maintain
any registration or issuance of any Material Intellectual Property, in the event
that such Consolidated Party determines, in its reasonable business judgment,
that such prosecution or maintenance, is no longer necessary or desirable in the
conduct of such Consolidated Party's business. None of the Consolidated Parties
will grant to any Person any interest whatsoever in the Collateral to any other
Person, except for Permitted Liens.
(b) None of the Consolidated Parties shall 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.
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SECTION 7.18 SALES OF RECEIVABLES. None of the Consolidated Parties
will, with recourse, discount or otherwise, sell or dispose of its notes or
accounts receivable.
SECTION 7.19 FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio for any four fiscal quarter period (i) from the
Closing Date through December 31, 2008, to be less than 1.10 to 1.00 and (ii)
from and after January 1, 2009, to be less than 1.00 to 1.00.
(b) Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio for any four fiscal quarter period ending on a date falling in
any period set forth below to be greater than the ratio set forth for such
applicable period:
From and Including To and Including Ratio
------------------ ------------------ ------------
Closing Date September 30, 2006 5.50 to 1.00
October 1, 2006 March 31, 2007 5.25 to 1.00
April 1, 2007 September 30, 2007 5.00 to 1.00
October 1, 2007 March 31, 2008 4.75 to 1.00
April 1, 2008 September 30, 2008 4.50 to 1.00
October 1, 2008 March 31, 2009 4.25 to 1.00
April 1, 2009 September 30, 2009 4.00 to 1.00
October 1, 2009 March 31, 2010 3.75 to 1.00
April 1, 2010 December 31, 2010 3.50 to 1.00
(c) Senior Leverage Ratio. The Borrower will not permit the Senior
Leverage Ratio for any four fiscal quarter period ending on a date falling in
any period set forth below to be greater than the ratio set forth for such
applicable period:
From and Including To and Including Ratio
------------------ ------------------ ------------
Closing Date September 30, 2006 4.50 to 1.00
October 1, 2006 March 31, 2007 4.25 to 1.00
April 1, 2007 September 30, 2007 4.00 to 1.00
October 1, 2007 March 31, 2008 3.75 to 1.00
April 1, 2008 September 30, 2008 3.50 to 1.00
October 1, 2008 March 31, 2009 3.25 to 1.00
April 1, 2009 September 30, 2009 3.00 to 1.00
October 1, 2009 March 31, 2010 2.75 to 1.00
April 1, 2010 December 31, 2010 2.50 to 1.00
SECTION 7.20 CAPITAL EXPENDITURES. The Borrower will not permit
Consolidated Capital Expenditures for any fiscal year of the Borrower to exceed
$4,500,000; provided, however, that so long as no Default or Event of Default
has occurred and is continuing or would result from such Consolidated Capital
Expenditure, any portion of this amount, if not expended in a fiscal year may be
carried over for Consolidated Capital Expenditures in the next following fiscal
year.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 EVENTS OF DEFAULT. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall:
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings under
Letters of Credit when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof
or by acceleration thereof or otherwise; or
(ii) default, and such default shall continue unremedied for
three (3) or more Business Days, in the payment when due of any interest on
the Loans or of any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other Senior Credit Obligations owing
hereunder, under any of the other Senior Credit Documents or otherwise;
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party or Subsidiary Grantor herein, in any of
the other Senior Credit Documents or in any statement or certificate delivered
or required to be delivered pursuant hereto or thereto shall prove to have been
false or misleading in any material respect on the date as of which it was made,
deemed to have been made or delivered;
(c) Covenants. Any Credit Party or Subsidiary Grantor (as applicable)
shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Section 6.01(a), (b), (c), (e), (f) or
(i), 6.02, 6.09 or 7.01 through 7.20, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇),
(▇), (▇), 6.11 or 6.12 and such default shall continue unremedied for a
period of at least 15 days after the earlier of a Responsible Officer of a
Credit Party or Subsidiary Grantor becoming aware of such default or notice
thereof by the Administrative Agent or the Required Lenders; or
(iii) default in the due performance or observance of any term,
covenant or agreement (other than those referred to in subsection (a), (b),
(c)(i), (c)(ii) or (j) of this Section 8.01) contained in this Agreement,
any of the other Senior Credit Documents or any Lender Hedging Agreement
and such default shall continue unremedied for a period of at least 30 days
after the earlier of a Responsible Officer of a Credit Party or Subsidiary
Grantor becoming aware of such default or notice thereof by the
Administrative Agent or the Required Lenders;
(d) Senior Credit Documents. Except as applicable to a Subsidiary of
the Borrower as a result of or in connection with a dissolution, merger or
disposition of such Subsidiary permitted under this Agreement and except as a
result of releases of Collateral in
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accordance with all applicable provisions of the Senior Credit Documents, any
Senior Credit Document shall fail to be in full force and effect or be asserted
to be invalid by any Consolidated Party or Person acting by or on behalf of such
Consolidated Party or fail to give the Administrative Agent or any other Secured
Party the Liens, rights, powers and privileges purported to be created thereby,
or any such Lien ceases to be perfected or to have the priority purported to be
granted under the Collateral Documents or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any respect, or
any Consolidated Party or Person acting by or on behalf of such Consolidated
Party or any Senior Subordinated Noteholder asserts the invalidity of any
subordination provision in respect of the Senior Subordinated Notes or any
Consolidated Party or any Person acting by or on behalf of any Consolidated
Party shall so state in writing as to any of the above;
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
any Consolidated Party;
(f) Defaults under Other Agreements.
(i) (A) Any Consolidated Party shall default in the performance
or observance of any term, covenant, condition or agreement relating to, or
any payment obligation under, the Senior Subordinated Note Purchase
Documents; or any other event or condition shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
permit the holder or holders of such Indebtedness (or any trustee or agent
on behalf of such holders) to cause (determined without regard to whether
any notice or lapse of time is required) any such Indebtedness (or any
portion thereof) to become due prior to its stated maturity, (B) any such
Indebtedness (or any portion thereof) shall be declared due and payable, or
shall be required to be prepaid (other than by a regularly scheduled
required payment) prior to the stated maturity thereof or (C) any
Consolidated Party shall be required by the terms of such Indebtedness to
offer to prepay or repurchase such Indebtedness (or any portion thereof)
prior to the stated maturity thereof;
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under the Senior Credit Documents) in excess of $2,500,000 in
the aggregate for the Consolidated Parties taken as a whole, (A) any
Consolidated Party shall default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness, (B) any Consolidated Party shall default in the observance or
performance of any other material term, covenant, condition or agreement
relating to such Indebtedness or contained in any instrument or agreement
evidencing or securing such Indebtedness or relating thereto, or any other
event or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause, or permit the holder or
holders of such Indebtedness (or any trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or lapse
of time is required) any such Indebtedness (or any portion thereof) to
become due prior to its stated maturity, (C) any such Indebtedness (or any
portion thereof) shall be declared due and payable, or shall be required to
be prepaid (other than by a regularly scheduled required payment) prior to
the stated maturity thereof or (D) any Consolidated Party shall
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be required by the terms of such Indebtedness to offer to prepay or
repurchase such Indebtedness (or any portion thereof) prior to the stated
maturity thereof;
(g) Judgments. One or more judgments or decrees shall be entered
against one or more of the Consolidated Parties involving a liability of
$2,500,000 or more in the aggregate (to the extent not paid or fully covered by
insurance provided by a carrier which has acknowledged coverage and has the
ability to perform) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 30 days from the
entry thereof, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of any Consolidated Party to enforce any such
judgment;
(h) ERISA. Any of the following events or conditions shall occur: (i)
any "accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of any Consolidated
Party or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) an ERISA Event
shall occur with respect to a Single Employer Plan, which is, in the opinion of
the Administrative Agent or the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (iii) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the opinion of the Administrative Agent or the Required Lenders,
reasonably likely to result in (A) the termination of such Plan for purposes of
Title IV of ERISA or (B) any Consolidated Party or any ERISA Affiliate incurring
any liability in connection with a withdrawal from, reorganization of (within
the meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; (iv) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject any Consolidated Party or
any ERISA Affiliate to any liability under Section 406, 409, 502(i) or 502(1) of
ERISA or Section 4975 of the Code or under any agreement or other instrument
pursuant to which any Consolidated Party or any ERISA Affiliate has agreed or is
required to indemnify any Person against any such liability; or (v) any other
event or condition out of the ordinary course of business shall occur or exist
with respect to any Plan; and, in each case in clauses (i) through (v) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to involve possible taxes, penalties and other
liabilities affecting the Consolidated Parties in an aggregate amount in excess
of $1,000,000 during the term of this Agreement;
(i) Change of Control. There shall occur any Change of Control; or
(j) Amendments of Certain Documents. Any of the Senior Subordinated
Note Purchase Document, Registration Rights Agreement, Shareholders Agreement,
Stock Option Plan, Convertible Non-Voting Common Stock, Convertible Preferred
Stock or Perpetual Preferred Stock shall have been amended, modified or waived
in a manner materially adverse in any respect to the Lenders without the prior
written consent of the Administrative Agent, and such document shall not have
been amended, revised or modified to the satisfaction of the Lenders within
fifteen (15) days of any request by the Administrative Agent.
SECTION 8.02 ACCELERATION; REMEDIES. Upon the occurrence of an Event
of Default, and at any time thereafter unless and until such Event of Default
has been waived by the
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requisite Lenders (pursuant to the voting requirements of Section 10.06) or
cured to the satisfaction of the requisite Lenders (pursuant to the voting
requirements of Section 10.06), the Administrative Agent may, and upon the
request and direction of the Required Lenders shall (subject to Section 9.01),
by written notice to the Borrower, take any or all of the following actions:
(a) Termination of Commitments. Declare the Commitments terminated,
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of all Loans, any
reimbursement obligations arising from drawings under Letters of Credit, all
accrued interest in respect thereof, all accrued and unpaid Fees, all other
Senior Credit Obligations and any and all other indebtedness or obligations of
any and every kind owing by any Credit Party to the Administrative Agent and/or
any of the Secured Parties under the Senior Credit Documents to be due,
whereupon the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default under Section 8.01(e), it will immediately pay) to the Administrative
Agent additional cash, to be held by the Administrative Agent, in a cash
collateral account pursuant to Section 2.02(k), in an amount equal to the
aggregate amount of the outstanding LOC Obligations (including the maximum
aggregate amount which is, or at any time thereafter may become, available to be
drawn under all Letters of Credit then outstanding) and terminate any Letter of
Credit which may be terminated in accordance with its terms.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Senior Credit Documents, including all rights and
remedies against the Subsidiary Guarantors and Subsidiary Grantors and all
rights of set-off and directing the Administrative Agent to exercise rights and
remedies existing under the Collateral Documents as delineated in this
Agreement.
Notwithstanding the foregoing, (x) if an Event of Default specified in Section
8.01(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees,
all other Senior Credit Obligations and any and all other indebtedness or
obligations owing to the Administrative Agent and/or any of the Secured Parties
under the Credit Documents automatically shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders and (y) upon the request and at the direction of Lenders
holding a majority of the Revolving Credit Facility Obligations, the
Administrative Agent shall take the actions specified in Section 8.02(a) and/or
8.02(c).
SECTION 8.03 EQUITABLE REMEDIES. In case any one or more of the
covenants and/or agreements set forth in this Agreement or any other Senior
Credit Document shall have been breached by any Credit Party or Subsidiary
Grantor, then the Administrative Agent may proceed to protect and enforce the
Lenders' rights either by suit in equity and/or by action at law,
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including an action for damages as a result of any such breach and/or an action
for specific performance of any such covenant or agreement contained in this
Agreement or such other Senior Credit Document, (including through directing the
Administrative Agent to take certain actions in accordance with the terms of
this Agreement and the other Senior Credit Documents). Without limitation of the
foregoing, the Borrower agrees that failure to comply with any of the covenants
contained herein will cause irreparable harm and that specific performance shall
be available in the event of any breach thereof. The Administrative Agent and,
if applicable, the Administrative Agent acting pursuant to this paragraph shall
be indemnified by the Borrower against all liability, loss or damage, together
with all reasonable costs and expenses related thereto (including reasonable
legal and accounting fees and expenses) in accordance with Section 10.05.
ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01 APPOINTMENT AND AUTHORIZATION OF THE ADMINISTRATIVE
AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Senior Credit Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Senior Credit Document, together with such powers as
are reasonably incidental thereto. Each Lender holding Tranche B Term Debt and
Revolver Debt hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement to the extent applicable to the Administrative Agent or
Collateral and each Collateral Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement and
any Collateral Document, together with such powers as are reasonably incidental
thereto. The Administrative Agent and the Secured Parties hereby agree that the
Administrative Agent shall hold the Collateral for the benefit of itself and the
other Secured Parties in accordance with this Agreement and the Collateral
Documents and subject to the rights accorded to such parties herein and therein.
The Borrower on its own behalf and on behalf of Subsidiary Grantors executing
each of the Pledge and Security Agreement hereby agree to deliver the Collateral
to the Administrative Agent to be held for the Secured Parties in accordance
with the rights accorded to each of them herein.
(b) Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Senior Credit Document, none of the
Administrative Agent shall have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent and any other
Agent-Related Persons have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent and any other Agent-Related Persons. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Credit Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law, regulation or statute.
Instead, such term is used merely as a matter of market
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custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(c) The Issuing Lender shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith,
and the Issuing Lender shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuing Lender in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term "Administrative Agent" as used in this Article IX and in the
definition of "Agent-Related Person" included the Issuing Lender with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to
the Issuing Lender.
SECTION 9.02 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement or any other Senior Credit
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
SECTION 9.03 LIABILITY OF AGENT-RELATED PERSONS. No Agent-Related
Person shall (a) be liable to any Lender or participant for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Senior Credit Document or the transactions contemplated hereby (except
for its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Credit Party or Subsidiary Grantor or any officer thereof, contained herein
or in any other Senior Credit Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Senior Credit Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Senior Credit
Document, or for any failure of any Credit Party or Subsidiary Grantor or any
other party to any Senior Credit Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Senior Credit Document, or to inspect the properties,
books or records of any Credit Party or any Affiliate thereof.
SECTION 9.04 RELIANCE BY AGENTS.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Credit
Party), independent accountants and other experts selected by such party. The
Administrative Agent shall be fully
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justified in failing or refusing to take any action under any Senior Credit
Document unless it shall first receive such advice or concurrence as it deems
appropriate of the Required Lenders. If the Administrative Agent so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Senior Credit Document in accordance with a request or consent of
the requisite Lenders referred to in this Section 9.04 (or such greater number
of Lenders as may be expressly required hereby in any instance) and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the applicable Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
SECTION 9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders and the Borrower (if relating to a notice from a Lender) of its receipt
of any such notice. The Administrative Agent shall take such action with respect
to such Default as may be directed by the requisite Lenders in accordance with
Article VIII, which action shall be in accordance with the terms of, and
limitations in, this Agreement; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the
best interest of the Lenders in accordance with the terms of, and limitations
in, this Agreement.
SECTION 9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENTS.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries, and
all applicable bank or other regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and
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based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Senior Credit
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Credit Parties and their respective
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent pursuant to the terms
of this Agreement, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
SECTION 9.07 INDEMNIFICATION OF AGENTS. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Credit Party and without limiting the obligation of any Credit
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
(a) that no Lender shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Liabilities to the extent determined in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the requisite Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07 and (b) no
Lender shall be liable for the payment of any portion of an Indemnified
Liability pursuant to this Section 9.07 unless such Indemnified Liability was
incurred by the Administrative Agent in its capacity as such or by another
Agent-Related Person acting for such party in such capacity; provided, further,
that to the extent any Lender is required to indemnify the Issuing Lender
pursuant to this Section 9.07, such obligation shall be limited to Lenders with
Revolving Commitments. In the case of any investigation, litigation or
proceeding giving rise to Indemnified Liabilities, this Section 9.07 applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by such
party in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Senior Credit Document, or any
document contemplated by or referred to herein, to the extent that such party is
not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Senior Credit Obligations and the resignation of the
Administrative Agent, as applicable.
SECTION 9.08 AGENTS IN THEIR INDIVIDUAL CAPACITIES. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Credit Parties and their respective Affiliates as though Bank
of America were not the Administrative Agent or the Issuing Lender hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such
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activities, Bank of America or its Affiliates may receive information regarding
any Credit Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Credit Party or such Affiliate) and
acknowledge that the Administrative Agent shall not be under any obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent, or the Issuing Lender, and the terms "Lender" and "Lenders" include Bank
of America in its individual capacity.
SECTION 9.09 SUCCESSOR AGENTS. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower;
provided that any such resignation by Bank of America shall also constitute its
resignation as Issuing Lender and Swingline Lender. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor Administrative Agent for the Lenders, which successor
Administrative Agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor Administrative
Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor Administrative Agent from among
the Lenders. Upon the acceptance of its appointment as successor Administrative
Agent hereunder, the Person acting as such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent, Issuing Lender and Swingline Lender and the respective terms
"Administrative Agent", "Issuing Lender" and "Swingline Lender" shall mean such
successor Administrative Agent, letter of credit issuer and swingline lender and
the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated and the retiring Issuing Lender's and
Swingline Lender's rights, powers and duties as such shall be terminated,
without any other or further act or deed on the part of such retiring Issuing
Lender or Swingline Lender or any other Lender, other than the obligation of the
successor Issuing Lender to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring Issuing Lender to effectively
assume the obligations of the retiring Issuing Lender with respect to such
Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX and Section
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
SECTION 9.10 ADMINISTRATIVE AGENT MAY FILE PROOF OF CLAIMS.
In case of an Insolvency or Liquidation Proceeding, relative to any Credit Party
or Subsidiary Grantor, the Administrative Agent (irrespective of whether the
principal of any Loan or a LOC Obligation shall then be due and payable is
herein expressed or by declaration or otherwise and
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irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, LOC Obligations and all
other Senior Credit Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective Affiliates, agents and counsel and all
other amounts due the Lenders and the Administrative Agent under Sections 3.05
and 10.05(a) (as the case may be)) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its Affiliates, agents and counsel, and any other
amounts due the Administrative Agent or its Affiliates, agents and counsel under
Sections 3.05 and 10.05(a) (as the case may be).
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the Senior
Credit 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
proceedings.
SECTION 9.11 COLLATERAL AND GUARANTY MATTERS. (a) Each Lender
irrevocably authorizes 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 Senior Credit Document (A) upon termination
of the Commitments and payment in full of all Senior Credit Obligations
(other than contingent indemnification obligations) and the expiration,
termination or cash collateralization 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 Senior Credit Document, or (C) subject to
Section 10.06, if approved, authorized or ratified in writing by the
Required Lenders;
(ii) to subordinate any Lien on any property granted to or held
by the Administrative Agent under any Senior Credit Document to the holder
of any Lien on such property that is permitted by clause (g) of the
definition of Permitted Liens; and
(iii) to release any Subsidiary Guarantor from its obligations to
the Administrative Agent under the Senior Subsidiaries Guarantee Agreement
if such Person ceases to be a Subsidiary Guarantor as a result of a
transaction permitted hereunder.
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(b) Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Subsidiary Guarantor from its obligations under the Senior
Subsidiaries Guarantee Agreement pursuant to this Section 9.11.
SECTION 9.12 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders
or other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "co-syndication agent," "documentation
agent," "co-agent," "book manager," "Book Manager," "lead manager," "arranger,"
"sole lead arranger," "co-lead arranger," or "co-arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed certified
or registered mail, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the Issuing
Lender or the Swingline Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.01 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties hereto; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the Borrower, the Administrative Agent, the Issuing Lender and
the Swingline Lender.
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 facsimile 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).
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(b) Electronic Communications. Notices and other communications to the
Lenders 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 pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its 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) Effectiveness of Facsimile Documents and Signatures. Senior Credit
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable law, have the
same force and effect as manually-signed originals and shall be binding on all
Credit Parties and Subsidiary Grantors, the Administrative Agent, the Issuing
Lender and the Lenders. The Administrative Agent may also require that any such
documents and signatures be confirmed by a manually-signed original thereof;
provided, however, that the failure to request or deliver the same shall not
limit the effectiveness of any facsimile document or signature.
(d) Reliance by Agents and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic
Notices of Borrowing) purportedly given by or on behalf of the Borrower even if
(i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower in accordance with the provisions set forth in Section 10.05(b). All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
(e) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE CREDIT PARTY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE CREDIT PARTY MATERIALS.
NO
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WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE CREDIT PARTY MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Agent Related Person (collectively,
the "Agent Parties") have any liability to the Borrower, any Lender, the Issuing
Lender or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the
Borrower's or the Administrative Agent's transmission of Credit Party Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event
shall any Agent Party have any liability to the Borrower, any Lender, the
Issuing Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(f) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the Issuing Lender and the Swingline Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the Issuing Lender and the
Swingline Lender.
SECTION 10.02 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of an Event of Default, each Lender (and each of its Affiliates) is
authorized at any time and from time to time, to the fullest extent permitted by
law, without presentment, demand, protest or other notice of any kind (all of
which rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final) and any other indebtedness at any time held or owing by such Lender
(including branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Person to such Lender (and its Affiliates) hereunder, under
the Notes, under the other Senior Credit Documents or otherwise, irrespective of
whether such Lender (or Affiliate) shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured. Any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. Each Lender
agrees promptly to notify the Borrower after any such set-off and application
made by such Lender (or any of its Affiliates); provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. Any Person purchasing a Participation Interest in the Loans and
Commitments hereunder pursuant to Section 2.02(c), 2.05(c), 3.13 or 10.03(d) may
exercise all rights of set-off with respect to its Participation Interest as
fully as if such Person were a Lender hereunder. The rights of each Lender (and
its Affiliates) under this Section 10.02 are in addition to (and not in
limitation of) any other rights and remedies (including other rights of set-off)
that such Lender may have under applicable law or otherwise.
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SECTION 10.03 SUCCESSORS AND ASSIGNS.
(a) Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an assignee in accordance with the provisions of Section 10.03(b), (ii)
by way of participation in accordance with the provisions of Section 10.03(d),
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.03(f) or (h) (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 Indemnitees) 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 assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans
(including for purposes of this Section 10.03(b), participations in L/C
Obligations and in Swingline Loans) at the time owing to it); 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 Lender's Commitment at the time owing to it
under such credit facility or in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of
this Section, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment
is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000, in the case of any assignment
in respect of any Revolving Loan, or $1,000,000, in the case of any
assignment in respect of the Tranche B Term Loans, unless each of the
Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
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(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 a particular
Class of Loans or Commitment assigned, except that this clause (ii) shall
not (A) apply to the Swingline Lender's rights and obligations in respect
of Swingline Loans or (B) prohibit any Lender from assigning all or a
portion of its rights and obligations among separate credit 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 Borrower (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 for
assignments in respect of (i) any Tranche B Term Loan Commitment or
Revolving Commitment if such assignment is to a Person that is not a
Lender with a Commitment in respect of the applicable Class of Loans,
an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (ii) any Tranche B Term Loan to a Person that is not a
Lender, an Affiliate of a Lender or an Approved Fund;
(C) the consent of the Issuing Lender (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); and
(D) the consent of the Swingline Lender (such consent not to
be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Loans.
(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 (which fee shall
not be payable by the Borrower) in the amount, if any, required as set
forth in Schedule 10.03; 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. The assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made
to the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall
be made to a natural person.
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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 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 a 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 3.06, 3.10, 3.11 and 10.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with Section 10.03(d).
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and LOC Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's Participations Interests); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to
Section 10.06 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.06, 3.10 and 3.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.03(b).
To the extent permitted by law,
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each Participant also shall be entitled to the benefits of Section 10.02 as
though it were a Lender, provided such Participant agrees to be subject to
Section 3.13 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.06 or 3.10 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.10 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 10.10(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Notes, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to the FRB 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) Funds. Notwithstanding anything to the contrary contained herein,
any Lender that is a Fund may create a security interest in all or any portion
of the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities; provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.03, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Senior Credit Documents and (ii) such trustee shall
not be entitled to exercise any of the rights of a Lender under the Senior
Credit Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.
(i) Resignations after an Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i)
upon 30 days' notice to the Borrower and the Lenders, resign as Issuing Lender,
(ii) upon 30 days' notice to the Borrower, resign as Swingline Lender and/or
(iii) upon 30 days' notice to the Borrower and the Lenders, resign as the
Administrative Agent. In the event of any such resignation as Issuing Lender,
Swingline Lender or Administrative Agent, the Borrower shall be entitled to
appoint from among the Lenders a successor Issuing Lender or Swingline Lender
hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of
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America as Issuing Lender or Swingline Lender, as the case may be. If Bank of
America resigns as Issuing Lender, it shall retain all the rights and
obligations of the Issuing Lender hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as Issuing Lender
and all LOC Obligations with respect thereto (including the right to require the
Lenders to make Revolving Loans or fund risk participations pursuant to Section
2.02(d)). If Bank of America resigns as Swingline Lender, it shall retain all
the rights of the Swingline Lender provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Revolving Loans
or fund risk participations in outstanding Swingline Loans pursuant to Section
2.05(c). If the Administrative Agent resigns, it shall have the benefit of the
protections set forth in Section 9.09 for the resigning Administrative Agent.
SECTION 10.04 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Administrative Agent or any other Secured Party in exercising
any right, power or privilege hereunder or under any other Senior Credit
Document and no course of dealing between the Administrative Agent or any other
Secured Party and any of the Credit Parties or the Subsidiary Grantors shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Senior Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies of
the Administrative Agent and each other Secured Party hereunder and under the
other Senior Credit Documents are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or each other Secured Party would
otherwise have at law or otherwise. No notice to or demand on any Credit Party
or any Subsidiary Grantor in any case shall entitle the Borrower or any other
Credit Party or any Subsidiary Grantor to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or each other Secured Party to any other or further action
in any circumstances without notice or demand.
SECTION 10.05 EXPENSES; INDEMNIFICATION. (a) The Borrower agrees (i)
to pay or reimburse the Administrative Agent for all reasonable costs and
expenses incurred in connection with the development, preparation, negotiation
and execution of the Fee Letter, the commitment letter related thereto, this
Agreement and the other Senior Credit Documents and other Transaction Documents
(and for the purposes of Attorney Costs of external counsel in connection
therewith shall be the Attorney Costs of McGuireWoods LLP and no other external
legal counsel, including any legal counsel of the Lenders), and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (ii) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Senior Credit Documents
(including all such costs and expenses incurred during any "workout" or
restructuring in respect of the Senior Credit Obligations and during any legal
proceeding), including all Attorney Costs of the Administrative Agent, and the
Attorney Costs of one single counsel to the Lenders as further delineated in
clause (c) of this Section 10.05. The foregoing costs and expenses shall include
all search, filing, recording and appraisal charges and fees and recording,
documentary and similar taxes related thereto, and other out-of-pocket expenses
incurred by the Administrative Agent and the cost of independent public
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accountants and other outside experts retained by the Administrative Agent or
any Lender. All amounts due under this Section 10.05(a) shall be payable within
ten (10) Business Days after demand therefor. The agreements in this Section
shall survive the termination of the Commitments and repayment of all other
Senior Credit Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Borrower will indemnify and hold harmless each Agent-Related
Person, General Electric Capital Corporation, as Syndication Agent, each Lender
and their respective Affiliates and their trustees, directors, officers,
employees, counsel, agents and advisors and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all losses, liabilities, obligations,
claims, damages, penalties, demands, actions, judgments, suits, costs, expenses
and disbursements of any kind or nature whatsoever (including Attorney Costs of
the Administrative Agent, and the Attorney Costs of one single counsel to the
Lenders as further delineated in clause (c) of this Section 10.05, AND SHALL PAY
ALL FEES AND TIME CHARGES AND DISBURSEMENTS FOR ATTORNEYS WHO MAY BE EMPLOYEES
OF ANY INDEMNITEE, which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in
connection with (i) the execution, delivery, enforcement, performance or
administration of the Fee Letter, the commitment letter related thereto, this
Agreement, any other Senior Credit Document, other Transaction Document or any
other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the Transaction or any
other transactions contemplated hereby or thereby, (ii) any Commitment, Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including
any refusal by the Issuing Lender 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 Materials of Environmental Concern on or from any
Property currently or formerly owned or operated by any Consolidated Party, or
the failure by any Consolidated Party to comply with any Environmental Law, 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 (including any investigation of, preparation for, or defense of any
pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto, AND IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or (y) result from
a claim brought by the Borrower or any other Credit Party or Subsidiary Grantor
against an Indemnitee for breach in bad faith of such Indemnitee's obligations
hereunder or under any other Senior Credit Document, if the Borrower or such
Credit Party or Subsidiary Grantor has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction. No Indemnitee shall be liable for any damages arising from the use
by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Senior Credit
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an investigation,
litigation or proceeding to which the indemnity in
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this Section 10.05 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Consolidated
Party, its directors, stockholders or auditors or an Indemnitee or any other
Person, whether or not any Indemnitee is otherwise a party thereto and whether
or not any of the transactions contemplated hereunder or under any of the other
Senior Credit Documents is consummated. All amounts due under this Section 10.05
shall be payable within ten (10) Business Days after demand therefor. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Senior Credit Obligations.
(c) All Indemnitees who are Lenders shall have the right to employ one
single counsel with respect to related claims in each applicable jurisdiction
for purposes of clauses (a) and (b) of this Section 10.05, and the Borrower
shall bear the reasonable fees, costs and expenses of such counsel; provided,
however, that any such Lender shall have the right to employ separate counsel,
and the Borrower shall bear the reasonable fees, costs and expenses of such
separate counsel, if (a) the use of counsel reasonably chosen by the other
Lenders to represent the Lenders would present such counsel with a conflict of
interest; (b) such Lender shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to the other Lenders; (c) such Lender shall have reasonably concluded
that it otherwise has divergent interests from the Lenders or (d) the Borrower
shall authorize in writing such Lender to employ separate counsel at the
Borrower's expense.
SECTION 10.06 AMENDMENTS, WAIVERS AND CONSENTS. No amendment or waiver
of any provision of this Agreement or any other Senior Credit Document, and no
consent to any departure by the Borrower or any other Credit Party or Subsidiary
Grantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, the Borrower and the applicable
Credit Party and/or Subsidiary Grantor, as the case may be, and acknowledged by
the Administrative Agent, then 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) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(b) postpone (i) any date fixed by this Agreement or any other Senior
Credit Document for any payment of principal, interest, fees or other amounts
due to the Lenders (or any of them), including any Maturity Date or (ii) any
scheduled or mandatory reduction of the Commitments hereunder or under any other
Senior Credit Document, without the written consent of each Lender directly
affected thereby;
(c) reduce or forgive the principal of, or the rate of interest
specified herein on, any Senior Credit Obligation, or any fees or other amounts
payable hereunder or under any other Senior Credit 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 default
rates set forth in Section 3.01 or to waive any obligation of the Borrower to
pay interest or the Letter of Credit Fee at the default rates set forth in
Section 3.01 or (ii) to amend any financial covenant hereunder (or any defined
term used therein), even if the effect of
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such amendment would be to reduce the rate of interest on any Senior Credit
Obligation or to reduce any fee payable hereunder.
(d) change Section 3.12(a), 3.13 or Section 3.14(b) in a manner that
would alter the pro rata sharing of payments required thereby among Lenders in a
Class or among the Tranche B Term Debt and the Revolver Debt without the written
consent of each Lender directly affected thereby;
(e) change any provision of this Section or the definition of
"Required Lenders", "Required Revolving Lenders", "Required Tranche B Term
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 directly affected thereby;
(f) (i) release all or substantially all of the value of the Senior
Subsidiaries Guarantee Agreement without the written consent of each Lender, or
(ii) release all or substantially all of the Collateral, except as specifically
permitted by the Senior Credit Documents, without the written consent of each
Secured Party;
(g) change Section 10.03 in a manner that would restrict the ability
of any Lender to assign any of its rights or obligations under this Agreement
without the written consent of each Lender directly affected thereby; or
(h) change Section 3.03(b)(ii) through (iv) regarding the nature of
mandatory prepayments or the order of application of proceeds thereunder,
without the written consent of each Lender directly affected thereby;
and provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender, in addition to the Lenders required
above, affect the rights or duties of the Issuing Bank under this Agreement or
any application relating to any Letter of Credit issued by it or to be issued by
it; (ii) no amendment, waiver or consent, shall unless in writing and signed by
the Swingline Lender in addition to the Lenders required above, affect the
rights and duties of the Swingline Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights and duties of the Administrative Agent under this Agreement or any other
Senior Credit Document; (iv) no amendment, waiver or consent shall, unless in
writing and signed by the Lender (a) which is (or is an Affiliate of) any
applicable Lender (or an Affiliate thereof) party to a Secured Lender Hedging
Agreement or Cash Management Bank, in addition to the Lenders required above,
affect the rights and duties of such Lender (or Affiliate thereof) party to a
Secured Lender Hedging Agreement or (b) which is a Cash Management Bank, as
applicable, under the definition of the terms "Secured Party", or "Senior Credit
Obligations" or with respect to the rights of such Lender (or Affiliate thereof)
party to a Secured Lender Hedging Agreement or Cash Management Bank under
Section 3.14 or such Lender (or Affiliate thereof) party to a Secured Lender
Hedging Agreement or Cash Management Bank, to continue as a Secured Party under
this Agreement and the other Senior Credit Documents, in respect of the Senior
Credit Obligations of the Credit Parties under any Secured Lender Hedging
Agreement or Secured Cash Management Services Agreement to
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which it is a party, (v) each Secured Lender Hedging Agreement may be amended,
or rights or privileges thereunder waived, in a writing executed only by the
parties thereto; (vi) each Secured Cash Management Services Agreement may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto; (vii) no amendment, waiver or consent shall, unless in
writing and signed by the Required Revolving Lenders and the Required Tranche B
Term Lenders (1) change the allocation of payments or prepayments between the
Revolving Loans and the Tranche B Term Loans; or (2) change any provision in
Section 7.08 as it relates to subordination provisions of the Senior
Subordinated Note Purchase Documents; or (viii) no amendment, waiver or consent
shall, unless in writing signed by the Required Revolving Lenders, effect a
waiver or amendment of a Default or an Event of Default or any amendment or
modification of Section 4.02 that would have the effect of requiring the
Revolving Lenders in any manner to increase outstanding Revolving Loans,
Swingline Loans or LOC Obligations (if any extension of credit is requested) by
an amount in excess of the total outstandings of Revolving Loans that Revolving
Lenders would otherwise be required to make available under this Agreement
immediately before giving effect to such waiver, amendment or modification.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender. Upon delivery by the Borrower of each
Perfection Certificate Supplement certifying supplements to the Schedules to the
Perfection Certificate, the schedule supplements attached to each such
Perfection Certificate Supplement shall be incorporated into and become a part
of and supplement the Schedules to the Perfection Certificate, and the
Administrative Agent may attach such schedule supplements to such Schedules, and
each reference to such Schedules shall mean and be a reference to such
Schedules, as supplemented pursuant thereto.
SECTION 10.07 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart for each of the parties hereto. Delivery by
facsimile by any of the parties hereto of an executed counterpart of this
Agreement shall be as effective as an original executed counterpart hereof and
shall be deemed a representation that an original executed counterpart hereof
will be delivered, but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability or binding effect of this
Agreement.
SECTION 10.08 HEADINGS. Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.09 SURVIVAL. All indemnities set forth herein, including
those set forth in Sections 2.02(h), 3.06, 3.10, 3.11, 9.07, 10.05 and 10.10,
shall survive the execution and delivery of this Agreement, the making of the
Loans, the issuance of the Letters of Credit, the repayment of the Loans, LOC
Obligations and other obligations under the Senior Credit Documents, the
termination of the Commitments hereunder and the termination of this Agreement.
All representations and warranties made by the Borrower herein shall survive
delivery of the Notes, the making of the Loans hereunder and the issuance of the
Letters of Credit hereunder.
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SECTION 10.10 TAX FORMS. (a) (i) Each Lender that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent and the Borrower, prior to
the date on which such Foreign Lender becomes party hereto, two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or such other evidence satisfactory to the Borrower
and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, United States withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the Administrative
Agent and the Borrower such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent and the Borrower of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Foreign Lender, and as
may be reasonably necessary (including the re-designation of its Applicable
Lending Office) to avoid any requirement of applicable law that the Borrower
make any deduction or withholding for taxes from amounts payable to such Foreign
Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Foreign Lender under any of the Senior Credit Documents
(for example, in the case of a typical participation by such Foreign
Lender), shall deliver to the Administrative Agent and the Borrower, on the
date when such Foreign Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Administrative Agent
(in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such
Foreign Lender as set forth above, to establish the portion of any such
sums paid or payable with respect to which such Foreign Lender acts for its
own account that is not subject to United States withholding tax, and (B)
two duly signed completed copies of IRS Form W-8IMY (or any successor
thereto), together with any information such Foreign Lender chooses to
transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Foreign Lender is
not acting for its own account with respect to a portion of any such sums
payable to such Foreign Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.10 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Foreign Lender transmits with
an IRS Form W-8IMY pursuant to this Section 10.10(a) or (B) if such Foreign
Lender shall have failed to satisfy the foregoing
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provisions of this Section 10.10(a); provided that if such Foreign Lender
shall have satisfied the requirement of this Section 10.10(a) on the date
such Foreign Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Senior Credit Documents,
nothing in this Section 10.10(a) shall relieve the Borrower of its
obligation to pay any amounts pursuant to Section 3.10 in the event that,
as a result of any change in any applicable law or order, or any change in
the interpretation, administration or application thereof, such Foreign
Lender is no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that such Lender
or other Person for the account of which such Lender receives any sums
payable under any of the Senior Credit Documents is not subject to
withholding or is subject to withholding at a reduced rate; provided,
further, that should such Lender become subject to Taxes because of its
failure to satisfy the foregoing provisions of this Section 10.10(a) the
Borrower shall take steps as such Lender shall reasonably request to assist
such Lender in recovering such Taxes.
(iv) The Administrative Agent or the Borrower (without
duplication) may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Senior Credit
Documents with respect to which the Borrower is not required to pay
additional amounts under Section 3.10 or this Section 10.10(a).
(b) Each Lender that is a "United States person" within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Administrative Agent and
the Borrower two duly signed completed copies of IRS Form W-9. If such Lender
fails to deliver such forms, then the Administrative Agent or the Borrower
(without duplication) may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any Tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any Taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Commitments,
repayment of all Senior Credit Obligations hereunder and the resignation of the
Administrative Agent.
SECTION 10.11 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a)
THIS AGREEMENT AND THE OTHER SENIOR CREDIT DOCUMENTS (OTHER THAN LETTERS OF
CREDIT AND OTHER THAN AS EXPRESSLY SET FORTH IN SUCH OTHER SENIOR CREDIT
DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE ISP AND, AS TO
MATTERS NOT GOVERNED BY THE ISP, THE
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LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to
this Agreement or any other Senior Credit Document may be brought in the courts
of the State of New York in New York County, or of the United States for the
Southern District of New York, and, by execution and delivery of this Agreement,
the Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. The Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address set forth for notices pursuant to Section 10.01, such service
to become effective three (3) days after such mailing. Nothing herein shall
affect the right of the Administrative Agent, or any Lender to serve process in
any other manner permitted by law or to commence legal proceedings or to
otherwise proceed against any Credit Party or any Subsidiary Grantor in any
other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Senior Credit Document brought in the courts referred to in subsection (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OF THE OTHER SENIOR CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 10.12 SEVERABILITY. If any provision of any of the Senior
Credit Documents is determined to be illegal, invalid or unenforceable, such
provision shall be fully severable and the remaining provisions shall remain in
full force and effect and shall be construed without giving effect to the
illegal, invalid or unenforceable provisions. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13 CONFIDENTIALITY. Each of the Administrative Agent and
each of the Lenders agrees to maintain the confidentiality of the Information,
except that Information may be disclosed (a) to its and to its Affiliates'
partners, directors, officers, employees, advisors or representatives in
connection with the transactions contemplated hereby (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 a regulatory authority purporting
to have authority over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable law or regulations or subpoena or similar legal process, (d) to any
other party hereto, (e) in connection with any exercise of remedies under this
Agreement or any other Senior Credit Document or the enforcement of rights
hereunder or thereunder, (f) subject to any agreement containing provisions
substantially the same as those in this Section 10.13 to (i)
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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 Interest Rate Protection
Agreement relating to the Borrower or any Subsidiary of the Borrower and their
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section 10.13 or (y) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrower or any
of its Subsidiaries or Affiliates.
For purposes of this Section, "Information" means all information
received from the 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 or any Lender on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received by the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Each of the Administrative Agent, the Lenders and the Issuing Lender
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information
accordance with applicable law, including Federal and state securities laws.
SECTION 10.14 SOURCE OF FUNDS. Each of the Lenders hereby represents
and warrants to the Borrower that at least one of the following statements is an
accurate representation as to the source of funds to be used by such Lender in
connection with the financing hereunder:
(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Lender in which any employee benefit plan (or its
related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender has
disclosed to the Borrower the name of each employee benefit plan whose assets in
such account exceed 10% of the total assets of such account as of the date of
such purchase (and, for purposes of this subsection (b), all employee benefit
plans maintained by the same employer or employee organization are deemed to be
a single plan);
(c) to the extent that any part of such funds constitutes assets of an
insurance company's general account, such insurance company has complied with
all of the requirements of the regulations issued under Section 401(c)(1)(A) of
ERISA; or
(d) such funds constitute assets of one or more specific benefit plans
which such Lender has identified in writing to the Borrower.
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As used in this Section 10.14, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
SECTION 10.15 CONFLICT. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any other Senior Credit Document, on the other hand, this Agreement shall
control.
SECTION 10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to
the Patriot Act and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Patriot Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Patriot Act.
SECTION 10.17 INTEREST RATE LIMITATION. Notwithstanding anything to
the contrary contained in any Senior Credit Document, the interest paid or
agreed to be paid under the Senior Credit Documents shall not exceed the maximum
rate of non-usurious interest permitted by applicable law (the "Maximum Rate").
If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower. In determining whether the interest contracted for, charged, or
received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Senior Credit
Obligations hereunder.
SECTION 10.18 NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection
with all aspects of each transaction contemplated hereby, the Borrower
acknowledges and agrees, and acknowledge its Affiliates' understanding, that:
(i) the credit facilities provided for hereunder and any related arranging or
other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Senior Credit
Document) are an arm's-length commercial transaction between the Borrower and
its Affiliates, on the one hand, and the Administrative Agent and the Sole Lead
Arranger and the Lenders, on the other hand, and the Borrower is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Senior
Credit Documents (including any amendment, waiver or other modification hereof
or thereof); (ii) in connection with the process leading to such transaction,
the Administrative Agent and the Sole Lead Arranger, and each Lender, each is
and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Borrower or any of its Affiliates, stockholders,
creditors or employees or any other Person; (iii) neither the Administrative
Agent, the Sole Lead Arranger nor any Lender has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Borrower with
respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Senior Credit Document (irrespective of whether the
Administrative Agent, the Sole Lead Arranger or any Lender has advised or is
currently advising
133
the Borrower or any of its Affiliates on other matters) and neither the
Administrative Agent, the Sole Lead Arranger nor any Lender has any obligation
to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Senior Credit Documents; (iv) the Administrative Agent, the Sole Lead
Arranger, each Lender and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and neither the Administrative Agent, the Sole Lead
Arranger nor any Lender has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent, the Sole Lead Arranger and the Lenders have not provided
and will not provide any legal, accounting, regulatory or tax advice with
respect to any of the transactions contemplated hereby (including any amendment,
waiver or other modification hereof or of any other Senior Credit Document) and
the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. The Borrower hereby waives and
releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent, the Sole Lead Arranger and any Lender with
respect to any breach or alleged breach of agency or fiduciary duty.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
BORROWER: COMPBENEFITS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
AGENTS: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Syndication Agent
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Duly Authorized Signatory
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender, Issuing Lender and Swingline
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
ING CAPITAL LLC,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Miners
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Miners
Title: Vice President
CAROLINA FIRST BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Duly Authorized Signatory