EXHIBIT 10.1
EXECUTION COPY
================================================================================
CREDIT AGREEMENT
Dated as of March 9, 2005
among
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
and
FIDELITY NATIONAL TAX SERVICE, INC.,
as Borrowers,
FIDELITY NATIONAL INFORMATION SERVICES, INC.,
The LENDERS Party Hereto,
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer
----------
BANC OF AMERICA SECURITIES LLC
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
Co-Lead Arrangers and Co-Joint Book Running Managers,
WACHOVIA CAPITAL MARKETS, LLC,
Co-Joint Book Running Manager,
JPMORGAN CHASE BANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Co-Syndication Agents
and
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Co-Documentation Agents
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms........................................... 1
Section 1.02. Other Interpretive Provisions........................... 38
Section 1.03. Accounting Terms........................................ 39
Section 1.04. Rounding................................................ 40
Section 1.05. References to Agreements and Laws....................... 40
Section 1.06. Times of Day............................................ 40
Section 1.07. Timing of Payment or Performance........................ 40
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Loans............................................... 40
Section 2.02. Borrowings, Conversions and Continuations of Loans...... 41
Section 2.03. Letters of Credit....................................... 43
Section 2.04. Swing Line Loans........................................ 50
Section 2.05. Prepayments............................................. 53
Section 2.06. Termination or Reduction of Commitments................. 57
Section 2.07. Repayment of Loans...................................... 57
Section 2.08. Interest................................................ 59
Section 2.09. Fees.................................................... 59
Section 2.10. Computation of Interest and Fees........................ 60
Section 2.11. Evidence of Indebtedness................................ 60
Section 2.12. Payments Generally...................................... 61
Section 2.13. Sharing of Payments..................................... 62
Section 2.14. Increase in Term Commitments............................ 63
ARTICLE 3
TAXES, INCREASED COSTS AND ILLEGALITY
Section 3.01. Taxes................................................... 64
Section 3.02. Illegality.............................................. 66
Section 3.03. Inability to Determine Rates............................ 67
Section 3.04. Increased Cost and Reduced Return....................... 67
Section 3.05. Capital Adequacy........................................ 68
Section 3.06. Reserves On Eurodollar Rate Loans....................... 68
Section 3.07. Funding Losses.......................................... 68
Section 3.08. Matters Applicable to All Requests for Compensation..... 69
i
Section 3.09. Replacement of Lenders Under Certain Circumstances...... 70
Section 3.10. Survival................................................ 71
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions of Initial Credit Extension.................. 72
Section 4.02. Conditions to All Credit Extensions..................... 74
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Existence, Qualification and Power; Compliance with Laws 75
Section 5.02. Authorization; No Contravention......................... 75
Section 5.03. Governmental Authorization; Other Consents.............. 76
Section 5.04. Binding Effect.......................................... 76
Section 5.05. Financial Statements; No Material Adverse Effect........ 76
Section 5.06. Litigation.............................................. 77
Section 5.07. Ownership of Property; Liens............................ 77
Section 5.08. Environmental Compliance................................ 77
Section 5.09. Taxes................................................... 78
Section 5.10. ERISA Compliance........................................ 78
Section 5.11. Subsidiaries; Equity Interests.......................... 79
Section 5.12. Margin Regulations; Investment Company Act.............. 79
Section 5.13. Disclosure.............................................. 79
Section 5.14. Intellectual Property; Licenses, Etc.................... 80
Section 5.15. Solvency................................................ 80
Section 5.16. Perfection, Etc......................................... 80
ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.01. Financial Statements.................................... 81
Section 6.02. Certificates; Other Information......................... 82
Section 6.03. Notices................................................. 84
Section 6.04. Payment of Obligations.................................. 85
Section 6.05. Preservation of Existence, Etc.......................... 85
Section 6.06. Maintenance of Properties............................... 85
Section 6.07. Maintenance of Insurance................................ 85
Section 6.08. Compliance with Laws.................................... 85
Section 6.09. Books and Records....................................... 85
Section 6.10. Inspection Rights....................................... 86
Section 6.11. Use of Proceeds......................................... 86
Section 6.12. Covenant to Guarantee Obligations and Give Security..... 86
Section 6.13. Compliance with Environmental Laws...................... 89
Section 6.14. Further Assurances...................................... 89
Section 6.15. Designation of Subsidiaries............................. 90
ii
Section 6.16. Interest Rate Protection................................ 90
ARTICLE 7
NEGATIVE COVENANTS
Section 7.01. Liens................................................... 91
Section 7.02. Investments............................................. 94
Section 7.03. Indebtedness............................................ 97
Section 7.04. Fundamental Changes..................................... 100
Section 7.05. Dispositions............................................ 101
Section 7.06. Restricted Payments..................................... 103
Section 7.07. Change in Nature of Business............................ 106
Section 7.08. Transactions with Affiliates............................ 106
Section 7.09. Burdensome Agreements................................... 107
Section 7.10. Use of Proceeds......................................... 107
Section 7.11. Financial Covenants..................................... 107
Section 7.12. Amendments of Organization Documents.................... 108
Section 7.13. Change in Fiscal Year................................... 108
Section 7.14. Prepayments, Etc. of Indebtedness....................... 108
Section 7.15. Activities of Holdings.................................. 109
Section 7.16. Designated Senior Debt.................................. 109
Section 7.17. Capital Expenditures.................................... 109
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default....................................... 110
Section 8.02. Remedies Upon Event of Default.......................... 113
Section 8.03. Application of Funds.................................... 113
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of Agents................. 114
Section 9.02. Delegation of Duties.................................... 115
Section 9.03. Liability of Agents..................................... 115
Section 9.04. Reliance by Agents...................................... 116
Section 9.05. Notice of Default....................................... 116
Section 9.06. Credit Decision; Disclosure of Information by Agents.... 116
Section 9.07. Indemnification of Agents............................... 117
Section 9.08. Agents in their Individual Capacities................... 117
Section 9.09. Successor Agents........................................ 118
Section 9.10. Administrative Agent May File Proofs of Claim........... 119
Section 9.11. Collateral and Guaranty Matters......................... 119
Section 9.12. Other Agents; Arrangers and Managers.................... 120
Section 9.13. Appointment of Supplemental Administrative Agents....... 120
iii
ARTICLE 10
GUARANTY
Section 10.01. Guaranty................................................ 121
Section 10.02. Contribution............................................ 122
Section 10.03. Guaranty Absolute....................................... 122
Section 10.04. Waiver And Acknowledgments.............................. 123
Section 10.05. Subrogation............................................. 124
Section 10.06. Payment Free And Clear Of Taxes......................... 125
Section 10.07. No Waiver; Remedies..................................... 125
Section 10.08. Right Of Set-Off........................................ 125
Section 10.09. Continuing Guaranty; Assignments under the Credit
Agreement............................................ 125
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc......................................... 126
Section 11.02. Notices and Other Communications; Facsimile Copies...... 128
Section 11.03. No Waiver; Cumulative Remedies.......................... 130
Section 11.04. Attorney Costs, Expenses and Taxes...................... 130
Section 11.05. Indemnification by the Borrowers........................ 130
Section 11.06. Payments Set Aside...................................... 132
Section 11.07. Assigns................................................. 132
Section 11.08. Successors.............................................. 136
Section 11.09. Confidentiality......................................... 136
Section 11.10. Set-off................................................. 137
Section 11.11. Interest Rate Limitation................................ 138
Section 11.12. Counterparts............................................ 138
Section 11.13. Integration............................................. 138
Section 11.14. Survival of Representations and Warranties.............. 138
Section 11.15. Severability............................................ 138
Section 11.16. Tax Forms............................................... 139
Section 11.17. Governing Law........................................... 141
Section 11.18. Waiver of Right to Trial by Jury........................ 141
Section 11.19. Binding Effect.......................................... 141
Section 11.20. USA Patriot Act Notice.................................. 142
Section 11.21. Waiver Of Notice Period Under Wachovia Credit
Agreement............................................ 142
iv
SCHEDULES
1.01A Earn-Out Payments
1.01B Closing Date Guarantors
1.01C Management Agreements
1.01D Shared Services Agreements
1.01E Unrestricted Subsidiaries
2.01 Commitments
5.06 Litigation
5.08 Environmental Matters
5.11 Subsidiaries
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.05 Permitted Dispositions
7.08 Transactions with Affiliates
7.09 Existing Restrictions
11.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Term A Note
C-2 Term B Note
C-3 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Subsidiary Guaranty
G Security Agreement
H Subordination Terms
CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of March 9, 2005,
among FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., a Delaware corporation
("SOLUTIONS"), FIDELITY NATIONAL TAX SERVICE, INC., a California corporation
("TAX" and, together with Solutions, the "BORROWERS"), FIDELITY NATIONAL
INFORMATION SERVICES, INC., a Delaware corporation, each lender from time to
time party hereto (collectively, the "LENDERS" and individually, a "LENDER") and
BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing Line
Lender and L/C Issuer.
RECITALS
The Borrowers have requested that (a) on the Closing Date (i) the Term A
Lenders make a Term A Loan to each Borrower in an aggregate principal amount for
all such Term A Loans of $800,000,000 and (ii) the Term B Lenders make a Term B
Loan to each Borrower in an aggregate principal amount for all such Term B Loans
of $2,000,000,000 and (b) from time to time, the Revolving Credit Lenders lend
to the Borrowers and the L/C Issuer issue Letters of Credit for the account of
the Borrowers and their Subsidiaries under a $400,000,000 revolving credit
facility for the Borrowers and their Subsidiaries. The applicable Lenders have
indicated their willingness to lend and the L/C Issuer has indicated its
willingness to so issue Letters of Credit, in each case, on the terms and
subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"1934 ACT" means the Securities Exchange Act of 1934.
"ADDITIONAL GUARANTOR" has the meaning set forth in Section 6.12(a).
"ADDITIONAL TERM LOANS" has the meaning specified in Section 2.14(b).
"ADDITIONAL TERM LOAN TRANCHE" has the meaning specified in Section
2.14(b).
"ADDITIONAL TERM COMMITMENTS EFFECTIVE DATE" has the meaning specified in
Section 2.14(c).
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrowers and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "CONTROL"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto.
"AGENT-RELATED PERSONS" means the Administrative Agent, together with its
Affiliates, and the officers, directors, employees, agents and attorneys-in-fact
of such Persons.
"AGENTS" means, collectively, the Administrative Agent, the Arrangers, the
Co-Syndication Agents, the Co-Documentation Agents and the Supplemental
Administrative Agents (if any).
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE MARGIN" means a percentage per annum equal to: (a) with respect
to any Term A Loans and Revolving Credit Loans, (i) until delivery of the
Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b) for the first fiscal quarter of Holdings both beginning and ending after
the Closing Date, 1.75% if such Loans are Eurodollar Loans and 0.75% if such
Loans are Base Rate Loans and (ii) thereafter, the following percentages per
annum based upon the Senior Secured Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):
Term A Loans and
Revolving Credit Loans
----------------------------------------------------------------------
Senior Secured
Pricing Level Leverage Ratio Eurodollar Rate Base Rate
------------- ------------------------- --------------- ---------
1 > 3.75:1 1.75% 0.75%
2 > 3.0:1 but < or = 3.75:1 1.50% 0.50%
3 < or = 3.0:1 1.25% 0.25%
(b) with respect to Term B Loans, at all times, 1.75% if such Loans are
Eurodollar Loans and 0.75% if such Loans are Base Rate Loans and (c) with
respect to the commitment fee to be paid pursuant to Section 2.09(a) (as used
below, the "COMMITMENT FEE") and the Letter of Credit fee (the "L/C FEE"), (i)
until delivery of the Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(b) for the first fiscal quarter of Holdings both
beginning and ending after the Closing Date, the Commitment Fee shall be 0.50%
and the Letter of Credit Fee
2
shall be 1.75% and (ii) thereafter, the following percentages per annum based
upon the Senior Secured Leverage Ratio as set forth below:
Senior Secured
Pricing Level Leverage Ratio Commitment Fee LC Fee
------------- ------------------------- -------------- ------
1 > 3.75:1 0.50% 1.75%
2 > 3.0:1 but < or = 3.75:1 0.375% 1.50%
3 = 3.0:1 0.375% 1.25%
Any increase or decrease in the Applicable Margin resulting from a change in the
Senior Secured Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b); provided that at the option of the Administrative
Agent or the Required Lenders, Pricing Level 1 shall apply (x) as of the first
Business Day after the date on which a Compliance Certificate was required to
have been delivered but was not delivered, and shall continue to so apply to and
including the date on which such Compliance Certificate is so delivered (and
thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply) and (y) as of the first Business Day after an Event of
Default shall have occurred and be continuing, and shall continue to so apply to
but excluding the date on which such Event of Default is cured or waived (and
thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply).
"APPROPRIATE LENDER" means, at any time, (a) with respect to Loans of any
Class, the Lenders of such Class, (b) with respect to the Letter of Credit
Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect
to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line
Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
"APPROVED FOREIGN BANK" has the meaning specified in clause (j) of the
definition of "Cash Equivalents".
"APPROVED FUND" means any Fund that is administered, advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers, advises or manages a Lender.
"ARRANGERS" means Banc of America Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., each in its capacity as a co-lead arranger and joint book running manager
of the Facilities.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit E.
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
3
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP.
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in Section
2.03(b)(iii).
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BORROWER" means each of Solutions and Tax; and "BORROWERS" means Solutions
and Tax together.
"BORROWER MATERIALS" has the meaning specified in Section 6.02.
"BORROWING" means a Revolving Credit Borrowing, a Swing Line Borrowing, a
Term A Borrowing or a Term B Borrowing, as the context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located or in
Florida, and if such day relates to any interest rate settings as to a
Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in
respect of any such Eurodollar Rate Loan, or any other dealings to be carried
out pursuant to this Agreement in respect of any such Eurodollar Rate Loan,
means any such day on which dealings in deposits are conducted by and between
banks in the London interbank eurodollar market.
"CAPITAL EXPENDITURES" means, as of any date for the applicable period then
ended, all capital expenditures of the Restricted Companies on a consolidated
basis for such period, as determined in accordance with GAAP; provided that
Capital Expenditures shall not include any such expenditures which constitute
(a) a Permitted Acquisition, (b) capital expenditures relating to the
construction or acquisition of any property which has been transferred to a
Person other than a Borrower or a Restricted Subsidiary pursuant to a
sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent
permitted by this Agreement, a reinvestment of the Net Cash Proceeds of any
Disposition in accordance with Section 2.05(b)(ii), Casualty Event or Equity
Issuance by any Restricted Company, (d) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to
4
replace or repair such lost, destroyed, damaged or condemned assets, equipment
or other property or otherwise to acquire, maintain, develop, construct,
improve, upgrade or repair assets or properties useful in the business of the
Borrowers and the Restricted Subsidiaries within 12 months of receipt of such
proceeds, (e) interest capitalized during such period, (f) expenditures that are
accounted for as capital expenditures of such Person and that actually are paid
for by a third party (excluding Holdings, the Borrowers or any Restricted
Subsidiary thereof) and for which neither Holdings, the Borrowers nor any
Restricted Subsidiary thereof has provided or is required to provide or incur,
directly or indirectly, any consideration or obligation to such third party or
any other Person (whether before, during or after such period), (g) the book
value of any asset owned by such Person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such Person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been made
in such period; provided that (i) any expenditure necessary in order to permit
such asset to be reused shall be included as a Capital Expenditure during the
period that such expenditure actually is made and (ii) such book value shall
have been included in Capital Expenditures when such asset was originally
acquired, (h) the purchase price of equipment purchased during such period to
the extent the consideration therefor consists of any combination of (i) used or
surplus equipment traded in at the time of such purchase and (ii) the proceeds
of a concurrent sale of used or surplus equipment, in each case, in the ordinary
course of business, or (i) the purchase price of equipment that is purchased
substantially contemporaneously with the trade-in of existing equipment to the
extent that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded in at
such time; provided further that, if for any period the calculation of Capital
Expenditures determined for the Restricted Companies on a consolidated basis
would include the full amount of Capital Expenditures of a Majority-Owned
Subsidiary, the amount attributable to such Majority-Owned Subsidiary shall be
reduced by an amount directly proportional to the amount of any minority
interest in such Majority-Owned Subsidiary owned by a Person other than a
Restricted Company.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases on a balance sheet of the
lessee.
"CASH COLLATERAL" has the meaning specified in Section 2.03(g).
"CASH COLLATERAL ACCOUNT" means a deposit account at the Collateral Agent
in the name of the Collateral Agent and under the sole dominion and control of
the Collateral Agent, and otherwise established in a manner satisfactory to the
Collateral Agent.
"CASH COLLATERALIZE" has the meaning specified in Section 2.03(g).
"CASH EQUIVALENTS" means any of the following types of Investments, to the
extent owned by Holdings or any of its Restricted Subsidiaries:
(a) operating deposit accounts maintained by the Restricted Companies;
5
(b) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof having
maturities of not more than 12 months from the date of acquisition thereof;
(c) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality
thereof having maturities of not more than 12 months from the date of
acquisition thereof and, at the time of acquisition, having a rating of at
least "A-2" or "P-2" (or long-term ratings of at least "A3" or "A-") from
either S&P or ▇▇▇▇▇'▇, or, with respect to municipal bonds, a rating of at
least MIG 2 or VMIG 2 from ▇▇▇▇▇'▇ (or the equivalent thereof);
(d) commercial paper issued by any Lender that is a commercial bank or
any bank holding company owning any Lender;
(e) commercial paper maturing not more than 12 months after the date
of creation thereof and, at the time of acquisition, having a rating of at
least A-1 or P-1 from either S&P or ▇▇▇▇▇'▇ and commercial paper maturing
not more than 90 days after the creation thereof and, at the time of
acquisition, having a rating of at least A-2 or P-2 from either S&P or
▇▇▇▇▇'▇;
(f) domestic and eurodollar certificates of deposit or bankers'
acceptances maturing no more than one year after the date of acquisition
thereof which are either issued by any Lender or any other banks having
combined capital and surplus of not less than $100,000,000 (or in the case
of foreign banks, the dollar equivalent thereof) or are insured by the
Federal Deposit Insurance Corporation for the full amount thereof;
(g) repurchase agreements with a term of not more than 30 days for,
and secured by, underlying securities of the type without regard to
maturity described in clauses (b), (c) and (f) above entered into with any
bank meeting the qualifications specified in clause (f) above or securities
dealers of recognized national standing;
(h) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types with regard to maturity of securities described in clauses (b)
through (g) above;
(i) fixed maturity securities which are rated BBB- and above by S&P or
Baa3 and above by Moody's; provided that the aggregate amount of
Investments by any Person in fixed maturity securities which are rated
BBB+, BBB or BBB- by S&P or ▇▇▇▇, ▇▇▇▇ or Baa3 by Moody's shall not exceed
10% of the aggregate amount of Investments in fixed maturity securities by
such Person;
(j) solely with respect to any Foreign Subsidiary, non-Dollar
denominated (i) certificates of deposit of, bankers acceptances of, or time
deposits with, any commercial bank which is organized and existing under
the laws of the country in which such Foreign Subsidiary maintains its
chief executive office and principal place of business provided such
country is a member of the Organization for Economic Cooperation and
Development, and whose short-term commercial paper rating from S&P
6
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 FOREIGN
BANK") and maturing within 12 months of the date of acquisition and (ii)
equivalents of demand deposit accounts which are maintained with an
Approved Foreign Bank; and
(k) solely with respect to Regulated Subsidiaries, in addition to each
of the Investments in clauses (a) through (i) above, any Investment
permitted by the Regulatory Supervising Organization of such Regulated
Subsidiary.
"CASH MANAGEMENT OBLIGATIONS" has the meaning set forth in the Security
Agreement.
"CASH ON HAND" means, on any day, the sum of the amount of cash and Cash
Equivalents of the Restricted Companies or Holdings and its consolidated
Subsidiaries, as applicable, as set forth on the balance sheet of the Restricted
Companies or Holdings and its consolidated Subsidiaries, as applicable, on the
last day of each calendar month ending during the four fiscal quarters most
recently ended on or prior to such day, divided by twelve (it being understood
that such amount shall exclude in any event any cash and Cash Equivalents
identified on such balance sheet as "restricted" (other than cash or Cash
Equivalents restricted in favor of the Secured Parties) or otherwise subject to
a security interest in favor of any other Person (other than security interests
under the Collateral Documents and non-consensual Liens permitted under Section
7.01)); provided that, if fewer than four full fiscal quarters have elapsed
since the Closing Date, Cash on Hand shall be determined as set forth above with
reference to the period commencing on (and including) the Closing Date and
ending on the last day of the fiscal quarter most recently ended on or prior to
such day.
"CASUALTY EVENT" means any event that gives rise to the receipt by any
Borrower or Restricted Subsidiary of any insurance proceeds or condemnation
awards in respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or real
property.
"CHANGE OF CONTROL" means the earliest to occur of (a) (i) a "person" or
"group" (as such terms are used in Sections 13(d) and 14(d)(2) of the 1934 Act,
but excluding any employee benefit plan of such person and its subsidiaries, and
any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan), other than the Permitted Holders, shall
become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
1934 Act), directly or indirectly, of more than the greater of (A) 35% of the
shares outstanding of Holdings (or, after a Qualifying IPO, the Qualifying IPO
Issuer) and (B) the percentage of the then outstanding voting stock of Holdings
(or, after a Qualifying IPO, the Qualifying IPO Issuer) owned, directly or
indirectly, beneficially by the Permitted Holders, and (ii) during any period of
twelve consecutive months, the board of directors of Holdings (or, after a
Qualifying IPO, the Qualifying IPO Issuer) shall cease to consist of a majority
of the Continuing Directors; and
(b) any "Change of Control" (or any comparable term) in any document
pertaining to any Junior Financing with an aggregate outstanding principal
amount in excess of the Threshold Amount; and
7
(c) either Borrower ceasing to be a directly or indirectly wholly owned
Subsidiary of Holdings.
"CLASS" (a) when used with respect to Lenders, refers to whether such
Lenders are Revolving Credit Lenders, Term A Lenders or Term B Lenders, (b) when
used with respect to Commitments, refers to whether such Commitments are
Revolving Credit Commitments, Term A Commitments or Term B Commitments and (c)
when used with respect to Loans or a Borrowing, refers to whether such Loans, or
the Loans comprising such Borrowing, are Revolving Credit Loans, Term A Loans or
Term B Loans.
"CLOSING DATE" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01.
"CLOSING DATE DIVIDEND" means a dividend in an approximate amount of
$2,700,000,000 paid by the Borrowers to Holdings, which Holdings will use,
together with the proceeds of the Equity Purchase, to (a) repay in full the FNF
Note, (b) repay approximately $410,000,000 of existing Indebtedness under the
Wachovia Credit Agreement and (c) pay certain fees and expenses associated with
the Transaction.
"CLOSING DATE FORECASTS" has the meaning specified in Section 4.01(f)(ii).
"CODE" means the U.S. Internal Revenue Code of 1986.
"CO-DOCUMENTATION AGENTS" means Deutsche Bank Securities Inc. and Bear
▇▇▇▇▇▇▇ & Co. Inc., as co-documentation agents under this Agreement.
"COLLATERAL" means all of the "Collateral" referred to in the Collateral
Documents and all of the other property and assets that are or are required
under the terms hereof or of the Collateral Documents to be subject to Liens in
favor of the Administrative Agent for the benefit of the Secured Parties.
"COLLATERAL AGENT" means Bank of America in its capacity as collateral
agent, or any successor collateral agent.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement, the
Intellectual Property Security Agreement, the Mortgages, and each of the other
agreements, instruments or documents that creates or purports to create a Lien
in favor of the Administrative Agent for the benefit of the Secured Parties,
including collateral assignments, Security Agreement Supplements, security
agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent and the Lenders pursuant to Section 6.12.
"COMMITMENT" means a Term A Commitment, Term B Commitment or Revolving
Credit Commitment, as the context may require.
"COMMITTED LOAN NOTICE" means a notice of (a) a Term A Borrowing, (b) a
Term B Borrowing, (c) a Revolving Credit Borrowing, (d) a conversion of Loans
from one Type to the other, or (e) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
8
"COMPENSATION PERIOD" has the meaning specified in Section 2.12(b)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
Exhibit D.
"CONSOLIDATED EBITDA" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount
which, in the determination of Consolidated Net Income for such period, has been
deducted for, without duplication,
(i) total interest expense,
(ii) income, franchise and similar taxes,
(iii) depreciation and amortization expense,
(iv) letter of credit fees,
(v) non-cash expenses resulting from any employee benefit or
management compensation plan or the grant of stock and stock options to
employees of Holdings, the Borrowers or any of their respective
Subsidiaries pursuant to a written plan or agreement or the treatment of
such options under variable plan accounting,
(vi) all extraordinary charges,
(vii) non-cash amortization of financing costs of such Person and its
Subsidiaries,
(viii) cash expenses incurred in connection with the Transaction or,
to the extent permitted hereunder, any Investment permitted under Section
7.02, Equity Issuance or Debt Issuance (in each case, whether or not
consummated),
(ix) any losses realized upon the Disposition of property or assets
outside of the ordinary course of business,
(x) to the extent actually reimbursed, expenses incurred to the extent
covered by indemnification provisions in any agreement in connection with a
Permitted Acquisition,
(xi) to the extent covered by insurance, expenses with respect to
liability or casualty events or business interruption,
(xii) management fees permitted under Section 7.08(d),
(xiii) any non-cash purchase accounting adjustment and any non-cash
write-up, write-down or write-off with respect to re-valuing assets and
liabilities in connection with the Transaction or any Investment permitted
under Section 7.02,
9
(xiv) non-cash losses from Joint Ventures and non-cash minority
interest reductions,
(xv) fees and expenses in connection with exchanges or refinancings
permitted by Section 7.14,
(xvi) (A) non-cash, non-recurring charges with respect to employee
severance, (B) other non-cash, non-recurring charges so long as such
charges described in this clause (B) do not result in a cash charge in a
future period (except as permitted under clause (xvi)(C)) and (C)
non-recurring charges other than those referred to in clauses (A) and (B)
so long as such charges described in this clause (C) do not exceed
$30,000,000 during any fiscal year,
(xvii) other expenses of such Person and its Subsidiaries reducing
Consolidated Net Income which do not represent a cash item in such period
or any future period, and
(xviii) with respect to the calculation of any covenant set forth in
Section 7.11 for any applicable period, the Net Cash Proceeds of any
Permitted Equity Issuance to FNF, the Equity Investors (or their respective
Affiliates, related funds, general partners or limited partners) or any
other Person that makes an equity investment together with FNF or the
Equity Investors as part of such Permitted Equity Issuance in an amount
equal to the amount necessary to ensure that the Loan Parties are in
compliance with the covenants set forth in Section 7.11 for such period,
solely to the extent that such Net Cash Proceeds (A) are actually received
by a Borrower (including through capital contribution of such Net Cash
Proceeds by Holdings to such Borrower) no later than twenty Business Days
after the date of delivery of the Compliance Certificate for such period
and (B) are Not Otherwise Applied; provided that any infusion of equity
pursuant to a Notice of Intent to Make an Equity Infusion shall not be made
more than twice in any twelve month period; it being understood that this
clause (xviii) may not be relied on for purposes of calculating any
financial ratios other than as applicable to Section 7.11 (including for
purposes of the definition of "Pro Forma Basis"); minus
(c) an amount which, in the determination of Consolidated Net Income, has
been included for
(i) (A) non-cash gains (other than with respect to cash actually
received) and (B) all extraordinary gains, and
(ii) any gains realized upon the Disposition of property outside of
the ordinary course of business, plus/minus
(d) unrealized losses/gains in respect of Swap Contracts,
all as determined in accordance with GAAP; provided that (x) notwithstanding any
other provision to the contrary contained in this Agreement, for purposes of any
calculation made under the financial covenants set forth in Section 7.11
(including for purposes of the definition of "Pro Forma Basis", but excluding
for purposes of the definition of "Applicable Margin"), to the
10
extent the receipt of any Net Cash Proceeds of any Permitted Equity Issuance are
an effective addition to Consolidated EBITDA as contemplated by, and in
accordance with, the provisions of clause (b)(xviii) above and, as a result
thereof, any Event of Default of the covenants set forth in Section 7.11 shall
have been cured for any applicable period, such cure shall be deemed to be
effective as of the last day of such applicable period, and (y) "Consolidated
EBITDA" with respect to Holdings and its Consolidated Subsidiaries for the
fiscal quarters ended March 31, 2004, June 30, 2004, September 30, 2004 and
December 31, 2004 shall be deemed to be $148,500,000, $164,800,000, $157,900,000
and $149,100,000, respectively.
"CONSOLIDATED INTEREST CHARGES" means, as of any date for the applicable
period ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, the amount payable with respect to such period in respect of
(a) total interest expense payable in cash plus pay-in-kind interest in respect
of Indebtedness of the type set forth in clause (a) of the definition thereof
(including the interest component under Capitalized Leases, but excluding, to
the extent included in interest expense, (i) fees and expenses associated with
the consummation of the Transaction, (ii) annual agency fees paid to the
Administrative Agent, (iii) costs associated with obtaining Swap Contracts and
(iv) fees and expenses associated with any Investment permitted under Section
7.02, Equity Issuance or Debt Issuance (whether or not consummated)), minus (b)
interest income with respect to Cash on Hand of such Person and its Subsidiaries
earned during such period, in each case as determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, as of any date for the applicable period
ending on such date with respect to any Person and its Subsidiaries on a
consolidated basis, net income (excluding, without duplication, (i)
extraordinary items and (ii) any amounts attributable to Investments in any
Joint Venture to the extent that (A) such amounts were not earned by such Joint
Venture during the applicable period, (B) there exists any legal or contractual
encumbrance or restriction on the ability of such Joint Venture to pay dividends
or make any other distributions in cash on the Equity Interests of such Joint
Venture held by such Person and its Subsidiaries, but only to the extent so
encumbered or restricted or (C) such Person does not have the right to receive
or the ability to cause to be distributed its pro rata share of all earnings of
such Joint Venture) as determined in accordance with GAAP; provided that
Consolidated Net Income for any such period shall not include (w) the cumulative
effect of a change in accounting principles during such period, (x) any net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness, (y) any
non-cash charges resulting from ▇▇▇▇-to-market accounting relating to Equity
Interests and (z) any non-cash impairment charges resulting from the application
of Statement of Financial Accounting Standards No. 142 - Goodwill and Other
Intangibles and No. 144 - Accounting for the Impairment or Disposal of
Long-Lived Assets and the amortization of intangibles including arising pursuant
to Statement of Financial Accounting Standards No. 141 - Business Combinations.
"CONSOLIDATED SUBSIDIARIES" means, with respect to any Person at any time,
all Subsidiaries of such Person that are Restricted Subsidiaries and that would
be consolidated in the financial statements of such Person on such date prepared
in accordance with GAAP, but excluding any such consolidated Subsidiary of such
Person that would not be so consolidated but for the effect of FIN 46.
11
"CONTINUING DIRECTORS" shall mean the directors of Holdings on the Closing
Date, after giving effect to the Transaction and the other transactions
contemplated hereby, and each other director, if, in each case, such other
directors' nomination for election to the board of directors of Holdings (or the
Qualifying IPO Issuer after a Qualifying IPO) is recommended by a majority of
the then Continuing Directors or such other director receives the vote of the
Permitted Holders in his or her election by the stockholders of Holdings (or the
Qualifying IPO Issuer after a Qualifying IPO).
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTRIBUTED HOLDCO DEBT" means Permitted Holdco Debt to the extent the Net
Cash Proceeds are contributed to one or both of the Borrowers and such Net Cash
Proceeds are used within 90 days of the contribution thereof (a) to finance a
Permitted Acquisition and, to the extent not so utilized, such excess amounts
are applied to prepay the Term Loans pursuant to Section 2.05(b)(iv) or (b) to
prepay the Term Loans pursuant to Section 2.05(b)(iv).
"CONTROL" has the meaning specified in the definition of "Affiliate."
"CO-SYNDICATION AGENTS" means JPMorgan Chase Bank, N.A. and Wachovia Bank,
National Association, as co-syndication agents under this Agreement.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"CUMULATIVE EXCESS CASH FLOW" means the sum of Excess Cash Flow for each
fiscal year commencing with the fiscal year ended December 31, 2005 (but
determined for such first fiscal year for the period from April 1, 2005 through
December 31, 2005) and ending on the last day of Holdings' most recently ended
fiscal year.
"DEBT ISSUANCE" means the issuance by any Person and its Subsidiaries of
any Indebtedness for borrowed money.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, general assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Margin, if any, applicable to Base Rate Loans plus (c) 2.0% per
annum; provided that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest
12
rate (including any Applicable Margin) otherwise applicable to such Loan plus
2.0% per annum, in each case, to the fullest extent permitted by applicable
Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition of any property by any Person (including any sale and
leaseback transaction and any sale of Equity Interests, but excluding any
issuance by such Person of its own Equity Interests), including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith.
"DISQUALIFIED EQUITY INTERESTS" means any Equity Interest which, by its
terms (or by the terms of any security or other Equity Interests into which it
is convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, (b) is redeemable at the option of the
holder thereof, in whole or in part, (c) provides for the scheduled payments of
dividends in cash, or (d) is or becomes convertible into or exchangeable for
Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests, in each case, prior to the date that is 91 days after the
Maturity Date (determined in accordance with clause (c)(i) of the definition
thereof) of the Term Loans.
"DOLLAR" and "$" mean lawful money of the United States.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the laws
of the United States, any state thereof or the District of Columbia.
"ELIGIBLE ASSIGNEE" means (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Revolving Commitment, the L/C Issuer and the Swing Line Lender, and (iii)
unless an Event of Default has occurred and is continuing under Section 8.01(a)
or 8.01(f), the Borrowers (each such approval not to be unreasonably withheld or
delayed).
"ENVIRONMENTAL LAWS" means any and all applicable Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
13
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any Restricted Company resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, all of the shares,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase,
acquisition or exchange from such Person of any of the foregoing (including
through convertible securities).
"EQUITY INVESTORS" means the Purchasers and certain other members of
management of Holdings or its Subsidiaries who are investors, directly or
indirectly, in Holdings.
"EQUITY ISSUANCE" means any issuance for cash by any Person and its
Subsidiaries to any other Person of (a) its Equity Interests, (b) any of its
Equity Interests pursuant to the exercise of options or warrants, (c) any of its
Equity Interests pursuant to the conversion of any debt securities to equity or
(d) any options or warrants relating to its Equity Interests. A Disposition
shall not be deemed to be an Equity Issuance.
"EQUITY PURCHASE" means the acquisition of approximately 25% of the common
stock of Holdings by the Purchasers for an aggregate purchase price of not less
than $500,000,000 pursuant to the Purchase Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with Holdings or a Borrower within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by Holdings, a Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Holdings, a Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or
14
condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums not yet due or premiums due but not yet
delinquent under Section 4007 of ERISA, upon Holdings, a Borrower or any ERISA
Affiliate.
"EURODOLLAR RATE" means, for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the British Bankers Association LIBOR Rate ("BBA
LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time), for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) is not
available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery on the first day
of such Interest Period in immediately available 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 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"EURODOLLAR RATE LOAN" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCESS CASH FLOW" means, with respect to any fiscal period of Holdings, an
amount equal to (a) Consolidated EBITDA of Holdings and its Consolidated
Subsidiaries for such fiscal period plus (b) the amount, if any, by which Net
Working Capital decreased from the beginning of the first day of such fiscal
period to the end of the last day of such fiscal period (or, in the case of any
determination of Excess Cash Flow for the period ending December 31, 2005, from
the beginning of January 1, 2005 to the end of December 31, 2005) minus (c)
without duplication,
(i) Capital Expenditures to the extent not financed with the proceeds
of long-term Indebtedness other than the Obligations,
(ii) Consolidated Interest Charges,
(iii) the aggregate of all income, franchise and similar taxes, as
determined in accordance with GAAP, to the extent the same are payable in
cash with respect to such fiscal period, including cash payments for
Federal, state and other income tax liabilities incurred prior to the
Closing Date,
15
(iv) the sum of all scheduled payments of principal on Indebtedness
made during such period (including the implied principal component of
payments made on Capitalized Leases during such fiscal period) as
determined in accordance with GAAP,
(v) Restricted Payments made by the Restricted Companies to the extent
that such Restricted Payments are permitted to be made under Section
7.06(h),
(vi) voluntary prepayments of any Indebtedness other than prepayments
of the Term Loans and Revolving Credit Loans pursuant to Section 2.05(a);
provided that (A) such prepayments are otherwise permitted hereunder and
(B) if such Indebtedness consists of a revolving line of credit, the
commitments under such line of credit are permanently reduced by the amount
of such prepayment,
(vii) letter of credit fees and annual agency fees,
(viii) proceeds received by the Restricted Companies from insurance
claims with respect to casualty events, business interruption or product
recalls which reimburse prior business expenses,
(ix) all extraordinary cash charges,
(x) cash payments made in satisfaction of non-current liabilities,
(xi) cash fees and expenses incurred in connection with the
Transaction and not paid with the proceeds of the Loans or, to the extent
permitted hereunder, any Investment permitted under Section 7.02, Equity
Issuance or Debt Issuance (whether or not consummated),
(xii) fees and expenses in connection with exchanges or refinancings
permitted by Section 7.14,
(xiii) cash indemnity payments received pursuant to indemnification
provisions in any agreement in connection with the Equity Purchase, any
Permitted Acquisition or any other Investment permitted hereunder (or in
any similar agreement related to any other acquisition consummated prior to
the Closing Date),
(xiv) non-recurring cash charges to the extent included in determining
Consolidated EBITDA,
(xv) expenses incurred in connection with deferred compensation
arrangements in connection with the Transaction,
(xvi) management fees permitted to be made under Section 7.08(d),
(xvii) cash used to consummate a Permitted Acquisition to the extent
not financed with the proceeds of Indebtedness or any sale or other
Disposition of assets or equity securities,
16
(xviii) to the extent added to Consolidated Net Income in determining
Consolidated EBITDA, losses from discontinued operations for such fiscal
period,
(xix) to the extent added to Consolidated Net Income in determining
Consolidated EBITDA, Net Cash Proceeds of Permitted Equity Issuances,
(xx) cash expenditures made in respect of Swap Contracts during such
fiscal period,
(xxi) to the extent not deducted in the computation of Net Proceeds in
respect of any asset Disposition or condemnation giving rise thereto, the
amount of any mandatory prepayment of Indebtedness (other than Indebtedness
hereunder or under any other Loan Document), together with any interest,
premium or penalties required to be paid (and actually paid) in connection
therewith,
(xxii) cash payments described on Schedule 1.01A made in respect of
acquisitions consummated prior to the Closing Date,
(xxiii) increases in the regulatory capital of each Regulated
Subsidiary, which shall be calculated by reference to the increase in the
minimum statutory capital and surplus of such Regulated Subsidiary during
such fiscal period times 110%;
(xxiv) payments under Contractual Obligations in respect of Permitted
Acquisitions required to be paid within 180 days after the end of such
fiscal period (which payments would have been deducted in calculating
Excess Cash Flow for such fiscal period had they been made during such
fiscal period); provided that (A) the Compliance Certificate delivered for
such fiscal period pursuant to Section 6.02(b) shall include a description
of the nature and amount of such Contractual Obligation and shall certify
that such Contractual Obligation has been paid or will be paid during the
180 days after the end of such fiscal period, (B) if such payment is not
made within 180 days after the close of such fiscal period, then the
Borrowers shall promptly make an optional prepayment of Term Loans in
accordance with Section 2.05(a) in an amount, if positive, equal to (x) the
amount that would have been paid pursuant to Section 2.05(b)(i) with
respect to such fiscal period but for this clause (xxiv) minus (y) the
amount of the payment made pursuant to Section 2.05(b)(i) with respect to
such fiscal period and (C) any deduction from Excess Cash Flow made with
respect to Contractual Obligations pursuant to this clause (xxiv) in such
fiscal period shall not be deducted in computing Excess Cash Flow for the
fiscal period in which such obligations are paid, and
(xxv) the amount, if any, by which Net Working Capital increased from
the beginning of the first day of such fiscal period to the end of the last
day of such fiscal period (or, in the case of any determination of Excess
Cash Flow for the period ending December 31, 2005, from the beginning of
January 1, 2005 to the end of December 31, 2005).
"FACILITY" means the Term Loans, the Revolving Credit Facility, the Swing
Line Sublimit or the Letter of Credit Sublimit, as the context may require.
17
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the immediately preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"FEE LETTER" means the letter agreement, dated January 20, 2005, among the
Borrowers and the Agents.
"FIDELITY COMPANIES" means Holdings, the Borrowers and their respective
Subsidiaries.
"FNF" means Fidelity National Financial, Inc., a Delaware corporation and,
immediately prior to the Equity Purchase, the sole shareholder of Holdings.
"FNF 2011 NOTES" means the 7.30% Notes due August 15, 2011 issued pursuant
to the Indenture dated August 20, 2001 between FNF and The Bank of New York.
"FNF 2013 NOTES" means the 5.25% Notes due March 15, 2013 issued pursuant
to the Indenture dated August 20, 2001 between FNF and The Bank of New York.
"FNF NOTE" means a $2,700,000,000 inter-company note owed by Holdings to
FNF.
"FOREIGN LENDER" has the meaning specified in Section 11.16(a)(i).
"FOREIGN SUBSIDIARY" means any direct or indirect Subsidiary of Holdings
which is not a Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"FUND" means any Person (other than a natural person) that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial,
18
taxing, regulatory or administrative powers or functions of or pertaining to
government (including in any event any Regulatory Supervising Organization).
"GRANTING LENDER" has the meaning specified in Section 11.07(i).
"GUARANTEE" means, as to any Person, without duplication, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided that the term
"Guarantee" shall not include indorsements for collection or deposit, in either
case in the ordinary course of business, or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with any
acquisition or Disposition of assets permitted under this Agreement (other than
such obligations with respect to Indebtedness). The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of
the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith. The term "Guarantee" as a verb has a corresponding
meaning.
"GUARANTOR PARTY" has the meaning set forth in Section 10.01.
"GUARANTORS" means, collectively, (i) each Guarantor Party, (ii) each
Restricted Subsidiary of either Borrower that is a Domestic Subsidiary on the
date hereof (other than a Regulated Subsidiary) and listed on Schedule 1.01B and
(iii) each Additional Guarantor.
"GUARANTY" means, collectively, the Guarantee by Holdings and each Borrower
set forth in Article 10 of this Agreement and the Subsidiary Guaranty.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law as hazardous, toxic, pollutants or contaminants or words of
similar meaning or effect.
19
"HEDGE BANK" means any Person that is a Lender or an Affiliate of a Lender,
in its capacity as a party to a Secured Hedge Agreement.
"HISTORICAL FINANCIAL STATEMENTS" has the meaning specified in Section
4.01(f)(i).
"HOLDINGS" means Fidelity National Information Services, Inc., a Delaware
corporation; provided that if in connection with a Qualifying IPO, a Person
other than Holdings becomes the Qualifying IPO Issuer, "Holdings" shall, from
and after such Qualifying IPO, mean such Qualifying IPO Issuer.
"HONOR DATE" has the meaning specified in Section 2.03(c)(i).
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments or agreements;
(b) the maximum available amount of all letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties, surety
bonds, performance bonds and similar instruments issued or created by or
for the account of such Person;
(c) net obligations of such Person under any Swap Contract (with the
amount of such net obligations being deemed to be the Swap Termination
Value thereof as of such date);
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than (i) trade accounts payable in the
ordinary course of business, (ii) any earn-out obligation until such
obligation appears in the liabilities section of the balance sheet of such
Person, and (iii) any earn-out obligation that appears in the liabilities
section of the balance sheet of such Person, to the extent (A) such Person
is indemnified for the payment thereof by a solvent Person reasonably
acceptable to the Administrative Agent or (B) amounts to be applied to the
payment therefore are in escrow);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements and mortgage, industrial revenue bond, industrial development
bond and similar financings), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity
Interests;
(h) indebtedness or similar financing obligations of such Person under
any Securitization Financing; and
20
(i) all Guarantees of such Person in respect of any of the foregoing
paragraphs.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is
non-recourse to such Person. The amount of Indebtedness of any Person for
purposes of clause (e) above shall be deemed to be equal to the lesser of (x)
the aggregate unpaid amount of such Indebtedness and (y) the fair market value
of the property encumbered thereby as determined by such Person in good faith.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 11.05.
"INDEMNITEES" has the meaning set forth in Section 11.05.
"INFORMATION" has the meaning specified in Section 11.09.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means, collectively, the
Copyright Security Agreement, the Trademark Security Agreement and the Patent
Security Agreement, substantially in the forms attached to the Security
Agreement together with each other intellectual property security agreement
executed and delivered pursuant to Section 6.12 or the Security Agreement.
"INTEREST COVERAGE RATIO" means, as of the end of any fiscal quarter of
Holdings for the four fiscal quarter period ending on such date, the ratio of
(a) Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for such
period to (b) (i) Consolidated Interest Charges of the Borrowers and their
Consolidated Subsidiaries for such period plus (ii) the amount of interest paid
(if any) in cash with respect to such period in respect of Contributed Holdco
Debt (but only to the extent that a Borrower or a Restricted Subsidiary made a
Restricted Payment to Holdings pursuant to Section 7.06(h)(v) the proceeds of
which were used by Holdings upon receipt to pay such interest); provided that
for the purpose of calculating the Interest Coverage Ratio on any day prior to
the expiration of four full fiscal quarters since the Closing Date, Consolidated
Interest Charges shall be determined for the period commencing on the Closing
Date and ending on the last day of the most recently ended fiscal quarter,
annualized on a simple arithmetic basis.
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date of the Facility under which such Loan was made; provided that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date of the Facility under which
such Loan was made.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, or to the extent available (as determined by each
relevant Lender) to all relevant Lenders, nine or twelve months
21
thereafter, as selected by the relevant Borrower in its Committed Loan Notice
(or such other period, which is less than twelve months, as agreed by the
relevant Borrower and all applicable Lenders); provided that:
(a) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the
Facility under which such Loan was made.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests or debt or other securities of another Person,
(b) a loan, advance or capital contribution to, Guarantee or assumption of debt
of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the investor
incurs debt of the type referred to in clause (h) of the definition of
"Indebtedness" set forth in this Section 1.01 in respect of such Person or (c)
the purchase or other acquisition (in one transaction or a series of
transactions) of all or substantially all of the property and assets or business
of another Person or assets constituting a business unit, line of business or
division of such Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP RIGHTS" has the meaning set forth in Section 5.14.
"IRS" means the United States Internal Revenue Service.
"JOINT VENTURE" means (a) any Person which would constitute an "equity
method investee" of Holdings or any of its Subsidiaries, (b) any other Person
designated by the Borrowers in writing to the Administrative Agent (which
designation shall be irrevocable) as a "Joint Venture" for purposes of this
Credit Agreement and at least 50% but less than 100% of whose Equity Interests
are directly owned by Holdings or any of its Subsidiaries, and (c) any Person in
whom Holdings or any of its Subsidiaries beneficially owns any Equity Interest
that is not a Subsidiary.
"JUNIOR FINANCING" means any Permitted Subordinated Indebtedness or any
Permitted Holdco Debt.
"JUNIOR FINANCING DOCUMENTATION" means any documentation governing any
Junior Financing.
22
"LAWS" means, collectively, all applicable international, foreign, Federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Revolving Credit Lender, such
Lender's funding of its participation in any L/C Borrowing in accordance with
its Pro Rata Share.
"L/C BORROWING" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Revolving Credit Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means Bank of America or any other Revolving Lender (or
Affiliate thereof) that agrees in writing with the Borrower and the
Administrative Agent to act as an L/C Issuer, in each case in its capacity as
issuer of Letters of Credit hereunder, or any successor issuer of Letters of
Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"LENDER" has the meaning specified in the introductory paragraph to this
Agreement and, as the context requires, includes the L/C Issuer and the Swing
Line Lender.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrowers
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is five days prior to
the scheduled Maturity Date then in effect for the Revolving Credit Facility
(or, if such day is not a Business Day, the next preceding Business Day).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Revolving
Credit Facility.
23
"LIEN" means any mortgage, pledge, hypothecation, assignment for security,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to
real property, and any Capitalized Lease having substantially the same economic
effect as any of the foregoing but excluding operating leases).
"LOAN" means an extension of credit by a Lender to a Borrower under Article
2 in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.
"LOAN DOCUMENTS" means, collectively, (a) this Agreement, (b) the Notes,
(c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter and (f) each
Letter of Credit Application.
"LOAN PARTIES" means, collectively, the Borrowers and each Guarantor.
"MAJORITY-OWNED SUBSIDIARY" means a Consolidated Subsidiary that is not
wholly-owned (directly or indirectly) by one or both Borrowers.
"MANAGEMENT AGREEMENT" means each of the agreements set forth on Schedule
1.01C.
"MASTER AGREEMENT" has the meaning specified in the definition of "Swap
Contract."
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
business, assets, liabilities, results of operations, or financial position of
the Borrowers and their Restricted Subsidiaries, taken as a whole, (b) a
material adverse effect on the ability of any Loan Party to perform its
obligations under the Loan Documents or (c) a material adverse effect on the
rights and remedies of the Lenders under the Loan Documents; provided that the
effect of the Closing Date Dividend, borrowings of Loans and the other elements
of the Transaction shall be excluded in such determination.
"MATERIAL REAL PROPERTY" means fee owned real property with a value in
excess of $5,000,000.
"MATURITY DATE" means (a) with respect to the Revolving Credit Facility and
the Swing Line Facility, the earlier of (i) the sixth anniversary of the Closing
Date and (ii) the date of termination in whole of the Revolving Credit
Commitments, the Letter of Credit Commitments, and the Swing Line Commitments
pursuant to Section 2.06(a) or 8.02, (b) with respect to the Term A Loans, the
earlier of (i) the sixth anniversary from the Closing Date and (ii) the date of
acceleration of the Term Loans pursuant to Section 8.02 and (c) with respect to
the Term B Loans, the earlier of (i) the eighth anniversary of the Closing Date
and (ii) the date of acceleration of the Term Loans pursuant to Section 8.02.
"MAXIMUM RATE" has the meaning specified in Section 11.11.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
24
"MORTGAGE" means, collectively, each mortgage executed and delivered on or
about the Closing Date and thereafter pursuant to Section 6.12.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which Holdings, a Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to the Disposition of any asset by any Restricted Company
or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such Disposition or Casualty Event
(including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received and, with respect to any Casualty Event, any insurance
proceeds or condemnation awards in respect of such Casualty Event actually
received by or paid to or for the account of such Restricted Company) over (ii)
the sum of (A) the principal amount of any Indebtedness that is secured by the
asset subject to such Disposition or Casualty Event and that is repaid in
connection with such Disposition or Casualty Event (other than Indebtedness
under the Loan Documents), (B) the out-of-pocket expenses (including attorneys'
fees, investment banking fees, survey costs, title insurance premiums, and
related search and recording charges, transfer taxes, deed or mortgage recording
taxes, other customary expenses and brokerage, consultant and other customary
fees) actually incurred by such Restricted Company in connection with such
Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be
payable by such Restricted Company or any of the direct or indirect members
thereof and attributable to such Disposition (including, in respect of any
proceeds received in connection with a Disposition or Casualty Event of any
asset of any Foreign Subsidiary, deductions in respect of withholding taxes that
are or would be payable in cash if such funds were repatriated to the United
States), and (D) any reserve for adjustment in respect of (1) the sale price of
such asset or assets established in accordance with GAAP and (2) any liabilities
associated with such asset or assets and retained by such Restricted Company
after such sale or other disposition thereof, including pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction and it being understood that "Net Cash Proceeds" shall include any
cash or Cash Equivalents (i) received upon the Disposition of any non-cash
consideration received by such Restricted Company in any such Disposition and
(ii) upon the reversal (without the satisfaction of any applicable liabilities
in cash in a corresponding amount) of any reserve described in clause (D) of the
preceding sentence or, if such liabilities have not been satisfied in cash and
such reserve not reversed within 365 days after such Disposition or Casualty
Event, the amount of such reserve; provided that (x) no proceeds realized in a
single transaction or series of related transactions shall constitute Net Cash
Proceeds unless such proceeds shall exceed $50,000,000 and (y) no proceeds shall
constitute Net Cash Proceeds under this clause (a) in any fiscal year until the
aggregate amount of all such proceeds in such fiscal year shall exceed
$100,000,000 (and thereafter only proceeds in excess of such amount shall
constitute Net Cash Proceeds under this clause (a));
25
(b) with respect to the issuance of any Equity Interest by any Restricted
Company, the excess of (i) the sum of the cash and Cash Equivalents received in
connection with such issuance over (ii) all taxes (including, in respect of any
proceeds received in connection with the issuance of Equity Interests of any
Foreign Subsidiary, deductions in respect of withholding taxes that are or would
otherwise be payable in cash if such funds were repatriated to the United
States) and fees (including investment banking fees, underwriting discounts,
commissions, costs and other out-of-pocket expenses and other customary
expenses) incurred by such Restricted Company (or, in the case of taxes, any
member thereof) in connection with such issuance; and
(c) with respect to the incurrence or issuance of any Indebtedness by any
Restricted Company, the excess, if any, of (i) the sum of the cash received in
connection with such sale over (ii) the investment banking fees, underwriting
discounts, commissions, costs and other out-of-pocket expenses and other
customary expenses, incurred by such Restricted Company (or, in the case of
taxes, any member thereof) in connection with such incurrence or issuance and,
in the case of Indebtedness of any Foreign Subsidiary, deductions in respect of
withholding taxes that are or would otherwise be payable in cash if such funds
were repatriated to the United States.
"NET WORKING CAPITAL" means, at any date and for any Person, (a) the
consolidated current assets of such Person and its Consolidated Subsidiaries as
of such date (excluding cash and Cash Equivalents) minus (b) the consolidated
current liabilities of such Person and its Consolidated Subsidiaries as of such
date (excluding current liabilities in respect of Indebtedness), in each case as
determined in accordance with GAAP.
"NON-CONSENTING LENDER" has the meaning specified in Section 3.09(e).
"NONRENEWAL NOTICE DATE" has the meaning specified in Section 2.03(b)(iii).
"NOTE" means a Term Note or a Revolving Credit Note, as the context may
require.
"NOTICE OF INTENT TO MAKE AN EQUITY INFUSION" has the meaning specified in
Section 6.02(b).
"NOT OTHERWISE APPLIED" means, with reference to any amount of Net Cash
Proceeds of any transaction or event or of Excess Cash Flow, that such amount
(a) in the case of Excess Cash Flow, was not required to be applied to prepay
the Loans pursuant to Section 2.05(b)(i), other than as a result of clause (B)
thereof or to the extent that such portion of Excess Cash Flow represented a
shortfall amount (as defined therein) which has not been paid pursuant to the
terms of Section 2.05(b)(i), (b) in the case of the amount of Net Cash Proceeds
of a transaction, was not required to be applied to prepay the Loans pursuant to
Section 2.05(b)(ii), Section 2.05(b)(iii) or Section 2.05(b)(iv), other than
because such Net Cash Proceeds represented Unavailable Regulated Subsidiary
Funds, (c) was not previously included in a calculation of "Consolidated EBITDA"
pursuant to clause (b)(xviii) of the definition thereof and (d) was not
previously applied in determining the permissibility of a transaction under the
Loan Documents where such permissibility was (or may have been) contingent on
receipt of such amount.
"OBLIGATIONS" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any
26
Loan or Letter of Credit, whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding. Without
limiting the generality of the foregoing, the Obligations of the Loan Parties
under the Loan Documents include (a) the obligation to pay principal, interest,
Letter of Credit commissions, charges, expenses, fees, Attorney Costs,
indemnities and other amounts payable by any Loan Party under any Loan Document
and (b) the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its sole discretion, may elect to pay
or advance on behalf of such Loan Party.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-US. jurisdiction); (b)
with respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" has the meaning specified in Section 3.01(c).
"OUTSTANDING AMOUNT" means (a) with respect to the Term Loans, Revolving
Credit Loans and Swing Line Loans on any date, the principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Term
Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Borrowings as a Revolving Credit
Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and
(b) with respect to any L/C Obligations on any date, the amount thereof on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes thereto as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit
(including any refinancing of outstanding unpaid drawings under Letters of
Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"PARTICIPANT" has the meaning specified in Section 11.07(f).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Holdings, a
Borrower or any ERISA Affiliate or to which Holdings, a Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
27
"PERMITTED ACQUISITION" has the meaning specified in Section 7.02(h).
"PERMITTED ACQUISITION DEBT" means any Permitted Subordinated Indebtedness
or any Permitted Senior Indebtedness permitted to be incurred pursuant to
Section 7.03(a), in each case incurred in connection with a Permitted
Acquisition, or any Contributed Holdco Debt (the Net Cash Proceeds of which are
used to finance a Permitted Acquisition).
"PERMITTED ENCUMBRANCES" has the meaning specified in the Mortgages.
"PERMITTED EQUITY ISSUANCE" means any sale or issuance of any Equity
Interests (other than Disqualified Equity Interests) of Holdings to the extent
(a) permitted hereunder and (b) the Net Cash Proceeds of which are not required
to be applied to the prepayment of the Loans pursuant to Section 2.05(b).
"PERMITTED HOLDCO DEBT" has the meaning specified in Section 7.03(s).
"PERMITTED HOLDERS" means FNF and the Sponsor.
"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; provided that (a) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to unpaid accrued interest and premium
thereon plus other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such modification, refinancing, refunding, renewal
or extension and by an amount equal to any existing commitments unutilized
thereunder or as otherwise permitted pursuant to Section 7.03, (b) such
modification, refinancing, refunding, renewal or extension has a final maturity
date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or
extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed
or extended is subordinated in right of payment to the Obligations, such
modification, refinancing, refunding, renewal or extension is subordinated in
right of payment to the Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness being
modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the
terms and conditions (including, if applicable, as to collateral) of any such
modified, refinanced, refunded, renewed or extended Indebtedness are not
materially less favorable to the Loan Parties or the Lenders than the terms and
conditions of the Indebtedness being modified, refinanced, refunded, renewed or
extended, taken as a whole, (e) such modification, refinancing, refunding,
renewal or extension is incurred by the Person who is the obligor on the
Indebtedness being modified, refinanced, refunded, renewed or extended, and such
new or additional obligors as are or become Loan Parties in accordance with
Section 6.12 and with respect to subordinated Indebtedness the obligations of
such obligors shall be subordinated in right of payment to the Obligations on
terms at least as favorable to the Lenders as those contained in documentation
governing the Indebtedness, taken as a whole and (f) at the time thereof, no
Event of Default shall have occurred and be continuing.
28
"PERMITTED SENIOR INDEBTEDNESS" means any unsecured Indebtedness (other
than Permitted Subordinated Indebtedness) that (a) is not scheduled to mature
prior to the date that is 91 days after the scheduled Maturity Date of the Term
B Loans (or any later scheduled Maturity Date of any Additional Term Loans
outstanding on the date of issuance of such Indebtedness), (b) has no scheduled
amortization or payments of principal prior to the scheduled Maturity Date of
the Term B Loans (or any later scheduled Maturity Date of any Additional Term
Loans outstanding on the date of issuance of such Indebtedness), and (c) in the
case of such Indebtedness (or series of related Indebtedness) in excess of the
Threshold Amount, has mandatory prepayment, repurchase or redemption provisions
no more onerous or expansive in scope, taken as a whole, than those contained in
this Agreement for the Term B Loans or are otherwise reasonably acceptable to
the Administrative Agent.
"PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness that
(a) is expressly subordinated to the prior payment in full in cash of the
Obligations on terms not materially less favorable to the Lenders, taken as a
whole, than the terms set forth on Exhibit H hereto or on such other terms as
shall be reasonably acceptable to the Administrative Agent, (b) is not scheduled
to mature prior to the date that is 91 days after the scheduled Maturity Date of
the Term B Loans (or any later scheduled Maturity Date of any Additional Term
Loans outstanding on the date of issuance of such Indebtedness), (c) has no
scheduled amortization or payments of principal prior to the scheduled Maturity
Date of the Term B Loans (or any later scheduled Maturity Date of any Additional
Term Loans outstanding on the date of issuance of such Indebtedness), and (d) in
the case of such Indebtedness (or series of related Indebtedness) in excess of
the Threshold Amount, has mandatory prepayment, repurchase or redemption
provisions no more onerous or expansive in scope, taken as a whole, than those
contained in this Agreement for the Term B Loans or are otherwise reasonably
acceptable to the Administrative Agent.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee pension benefit plan" (as such term is defined
in Section 3(2) of ERISA) maintained or sponsored by Holdings or a Borrower or,
with respect to any such plan that is subject to Section 412 of the Code or
Title IV of ERISA, any ERISA Affiliate.
"PLATFORM" has the meaning specified in Section 6.02.
"PLEDGED DEBT" has the meaning specified in the Security Agreement.
"PLEDGED EQUITY" has the meaning specified in the Security Agreement.
"PRO FORMA BASIS", "PRO FORMA COMPLIANCE" and "PRO FORMA EFFECT" means, for
purposes of calculating compliance with the Senior Leverage Ratio or each of the
financial covenants set forth in Section 7.11 in respect of a Specified
Transaction, that such Specified Transaction and the following transactions in
connection therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement in such covenant: (a) income statement items
(whether positive or negative) attributable to the property or Person subject to
such Specified Transaction, in the case of a Permitted Acquisition or Investment
29
described in the definition of "Specified Transaction", shall be included, (b)
any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by
any Restricted Company in connection with such Specified Transaction, and if
such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; provided that the
foregoing pro forma adjustments may be applied to the Senior Leverage Ratio and
the financial covenants set forth in Section 7.11 to the extent that such
adjustments are consistent with the definition of Consolidated EBITDA and may
take into account cost savings for which the necessary steps have been
implemented or are reasonably expected to be implemented within twelve months
after the closing of the applicable Permitted Acquisition.
"PRO RATA SHARE" means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitments of such Lender under the
applicable Facility or Facilities at such time and the denominator of which is
the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time; provided that if such Commitments have been terminated,
then the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof.
"PUBLIC LENDER" has the meaning specified in Section 6.02.
"PURCHASE AGREEMENT" means the Amended and Restated Stock Purchase
Agreement dated as of March 9, 2005, among between Holdings, FNF and the
Purchasers named therein.
"PURCHASERS" means certain Affiliates of ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P.,
Texas Pacific Group and Evercore Partners and the other "Purchasers" referred to
in the Purchase Agreement.
"QUALIFYING IPO" means the issuance by the Qualifying IPO Issuer of its
common Equity Interests in an underwritten primary public offering (other than a
public offering pursuant to a registration statement on Form S-8) pursuant to an
effective registration statement filed with the SEC in accordance with the
Securities Act of 1933 (whether alone or in connection with a secondary public
offering).
"QUALIFYING IPO ISSUER" means Holdings or a corporation or other legal
entity formed for the purpose of consummating a Qualifying IPO which owns,
directly or indirectly, 100% of the outstanding equity interests of Holdings or
the Borrowers.
"RECAPITALIZATION" means the Equity Purchase and the Closing Date Dividend
and use of the proceeds contemplated by the definition thereof.
"REGISTER" has the meaning set forth in Section 11.07(e).
"REGULATED SUBSIDIARY" means any Restricted Subsidiary that is subject to
regulation as an insurance company by any Governmental Authority and for which
the incurrence of Indebtedness (including Guarantees) or the granting of Liens
with respect to its assets would be
30
prohibited or restricted or would result in a negative impact on any minimum
capital or similar requirement applicable to it.
"REGULATED SUBSIDIARY PORTION" has the meaning set forth in Section
2.05(b)(i).
"REGULATORY SUPERVISING ORGANIZATION" means any Governmental Authority or
regulatory organization of which a Regulated Subsidiary is a member or to whose
rules it is subject.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30-day notice period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Term Loans or Revolving Credit Loans, a Committed
Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"REQUIRED LENDERS" means, as of any date of determination, Lenders having
more than 50% of the sum of the (a) Total Outstandings (with the aggregate
amount of each Lender's risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed "held" by such Lender for purposes
of this definition), (b) aggregate unused Term Commitments, if any, and (c)
aggregate unused Revolving Credit Commitments, if any; provided that the unused
Term Commitment, unused Revolving Credit Commitment of, and the portion of the
Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president, any
vice president, chief financial officer, treasurer or assistant treasurer or
other similar officer of a Loan Party and, as to any document delivered on the
Closing Date, secretary or assistant secretary. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"RESTRICTED COMPANIES" means Holdings, the Borrowers and the other
Restricted Subsidiaries, and "RESTRICTED COMPANY" means any of the foregoing.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest of any
Restricted Company, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interest, or on account of any return of capital
to Holdings or a Borrower's stockholders, partners or members (or the equivalent
Persons thereof).
"RESTRICTED SUBSIDIARY" means any Subsidiary of Holdings other than an
Unrestricted Subsidiary (including in any event each Borrower).
31
"REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Revolving Credit
Lenders pursuant to Section 2.01(c).
"REVOLVING CREDIT COMMITMENT" means, as to each Revolving Credit Lender,
its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to
Section 2.01(c), (b) purchase participations in L/C Obligations, and (c)
purchase participations in Swing Line Loans, in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01 under the caption "Revolving Credit Commitment"
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The aggregate Commitments of all Revolving
Credit Lenders shall be $400,000,000 on the Closing Date, as such amount may be
adjusted from time to time in accordance with the terms of this Agreement.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount of the
Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means, at any time, any Lender that has a
Revolving Credit Commitment at such time.
"REVOLVING CREDIT LOAN" has the meaning specified in Section 2.01(c).
"REVOLVING CREDIT NOTE" means a promissory note of a Borrower payable to
any Revolving Credit Lender or its registered assigns, in substantially the form
of Exhibit C-3 hereto, evidencing the aggregate indebtedness of such Borrower to
such Revolving Credit Lender resulting from the Revolving Credit Loans made by
such Revolving Credit Lender.
"ROLLOVER AMOUNT" has the meaning set forth in Section 7.17(b).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECURED HEDGE AGREEMENT" means any Swap Contract permitted under Article 6
or 7 that is entered into by and between Holdings or any of its Subsidiaries and
any Hedge Bank.
"SECURED HEDGING OBLIGATIONS" has the meaning set forth in the Security
Agreement.
"SECURED OBLIGATIONS" has the meaning specified in the Security Agreement.
"SECURED PARTIES" means, collectively, the Administrative Agent, the
Lenders, the Hedge Banks, the Supplemental Administrative Agent and each
co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.02.
32
"SECURITIZATION ASSETS" means any accounts receivable, royalty or revenue
streams, other financial assets, proceeds and books, records and other related
assets incidental to the foregoing subject to a Securitization Financing.
"SECURITIZATION FINANCING" has the meaning referred to in Section 7.03(y).
"SECURITIZATION VEHICLE" means one or more special purpose vehicles that
are, directly or indirectly, wholly-owned Subsidiaries of Solutions and are
Persons organized for the limited purpose of entering into a Securitization
Financing by purchasing, or receiving by way of capital contributions, sale or
other transfer, assets from the Borrowers and their Subsidiaries and obtaining
financing for such assets from third parties, and whose structure is designed to
insulate such vehicle from the credit risk of the Borrowers.
"SECURITY AGREEMENT" means, collectively, the Security Agreement executed
by Solutions and its Restricted Subsidiaries that are Loan Parties,
substantially in the form of Exhibit G, together with each other security
agreement supplement executed and delivered pursuant to Section 6.12.
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in the Security
Agreement.
"SENIOR INDEBTEDNESS" means (a) the aggregate Outstanding Amount of all
Loans, the aggregate undrawn amount of all outstanding trade Letters of Credit
and all Unreimbursed Amounts and (b) all other Indebtedness of the Borrowers and
their Consolidated Subsidiaries of the type referred to in clauses (a), (b) (but
solely in respect of letters of credit and bankers' acceptances, and solely to
the extent drawn and not yet reimbursed), (d), (e), (f) and (h) of the
definition thereof and all Guarantees of the Borrowers and their Restricted
Subsidiaries in respect of such Indebtedness of any other Person, in each case
other than Permitted Subordinated Indebtedness.
"SENIOR LEVERAGE RATIO" means, at any date, the ratio of (a) Senior
Indebtedness (net of Cash on Hand) of the Borrowers and their Consolidated
Subsidiaries at such date to (b) Consolidated EBITDA of Holdings and its
Consolidated Subsidiaries for the four fiscal quarters ended on or most recently
prior to such date; provided that the amount determined pursuant to clause (a)
above at any date shall be reduced, in the case of any such Indebtedness of a
Majority-Owned Subsidiary, by an amount directly proportional to the amount (if
any) by which Consolidated EBITDA determined pursuant to clause (b) above for
such date was reduced (including through the calculation of Consolidated Net
Income) by the elimination of a minority interest in such Majority-Owned
Subsidiary owned by a Person other than a Restricted Company.
"SENIOR SECURED INDEBTEDNESS" means all Senior Indebtedness of the
Borrowers and their Consolidated Subsidiaries that is secured by a Lien on any
assets of a Borrower or any Restricted Subsidiary which, in the case of Senior
Secured Indebtedness consisting of revolving borrowings, shall be calculated
based on the average daily outstanding amount of such Senior Secured
Indebtedness for the four fiscal quarters most recently ended on or prior to
such day (or, if fewer than four full fiscal quarters have elapsed since the
Closing Date, for the period
33
commencing on the Closing Date and ending on the last day of the fiscal quarter
most recently ended on or prior to such day).
"SENIOR SECURED LEVERAGE RATIO" means, as of the end of any fiscal quarter
of Holdings for the four fiscal quarter period ending on such date (or, if fewer
than four full fiscal quarters have elapsed since the Closing Date, for the
period commencing on the Closing Date and ending on the last day of the fiscal
quarter most recently ended on or prior to such day), the ratio of (a) Senior
Secured Indebtedness (net of Cash on Hand) on the last day of such period to (b)
Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for such
period; provided that the amount of Senior Secured Indebtedness and/or Cash on
Hand determined pursuant to clause (a) above at any date shall be reduced, in
the case of any such Indebtedness or Cash on Hand of a Majority-Owned
Subsidiary, by an amount directly proportional to the amount (if any) by which
Consolidated EBITDA determined pursuant to clause (b) above for such date was
reduced (including through the calculation of Consolidated Net Income) by the
elimination of a minority interest in such Majority-Owned Subsidiary owned by a
Person other than a Restricted Company.
"SHARED SERVICES AGREEMENT" means the agreements set forth on Schedule
1.01D.
"SHORTFALL AMOUNT" has the meaning set forth in Section 2.05(b)(i).
"SOLUTIONS" has the meaning specified in the introductory paragraph to this
Agreement.
"SOLUTIONS RESTRICTED COMPANIES" means Solutions and its Restricted
Subsidiaries.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) 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 and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"SPC" has the meaning specified in Section 11.07(i).
"SPECIFIED EQUITY ISSUANCE" means the sale or issuance by any Restricted
Company of any of its Equity Interests in a public offering or in a private
placement or sale that is underwritten, managed, arranged, placed or initially
purchased by an investment bank (it being understood that the Sponsor is not an
investment bank), except the sale or issuance of any such Equity Interests (a)
TO FNF, the Equity Investors, their Affiliates, related funds, general partners
and limited partners, (b) to other Persons making additional equity investments
together with FNF and the Equity Investors after the Closing Date, (c) the
proceeds of which are used to fund
34
Investments permitted by Section 7.02, (d) issued as compensation to employees
of any Fidelity Company or to management of Fidelity Company in the ordinary
course of business or (e) used to cure Events of Default as contemplated by
clause (b)(xviii) of the definition of Consolidated EBITDA.
"SPECIFIED TRANSACTION" means, any Investment or incurrence of Indebtedness
in respect of which compliance with the financial covenants set forth in Section
7.11 is by the terms of this Agreement required to be calculated on a Pro Forma
Basis.
"SPONSOR" means, collectively, ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P. and its
Affiliates, Texas Pacific Group and its Affiliates, Evercore Partners and its
Affiliates and the other Purchasers (including, as applicable, related funds and
general partners thereof and limited partners thereof, but solely to the extent
any such limited partners are directly or indirectly participating as investors
pursuant to a side-by-side investing arrangement).
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as of March
9, 2005 among FNF, Holdings, the Sponsors and the other parties thereto.
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Holdings.
"SUBSIDIARY GUARANTY" means, collectively, the Subsidiary Guaranty made by
the Subsidiaries of the Borrowers that are Guarantors in favor of the
Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit F, together with each other guaranty and guaranty supplement delivered
pursuant to Section 6.12(a).
"SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning specified in Section
9.13 and "Supplemental Administrative Agents" shall have the corresponding
meaning.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward contracts, futures contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, repurchase agreements,
reverse repurchase agreements, sell buy backs and buy sell back agreements, and
securities lending and borrowing agreements or any other similar transactions or
any combination of any of the foregoing (including any options to enter into any
of the foregoing), whether or not any such transaction is governed by or subject
to any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any
35
form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement or related schedules, including any such obligations or
liabilities arising therefrom.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"SWING LINE FACILITY" means the revolving credit facility made available by
the Swing Line Lender pursuant to Section 2.04.
"SWING LINE LENDER" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning specified in Section 2.04(a).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a)
$50,000,000 and (b) the Revolving Credit Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Revolving Credit Commitments.
"TAX" has the meaning specified in the introductory paragraph to this
Agreement.
"TAX RESTRICTED COMPANIES" means Tax and its Restricted Subsidiaries.
"TAXES" has the meaning specified in Section 3.01(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous Term A
Loan's of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term A Lenders pursuant to Section
2.01(a).
"TERM A COMMITMENT" means, as to each Term A Lender, its obligation to make
a Term A Loan to the Borrowers pursuant to Section 2.01(a) in an aggregate
amount not to exceed the amount set forth opposite such Term A Lender's name on
Schedule 2.01 under the caption "Term A Commitment" or in the Assignment and
Assumption pursuant to which such Term A Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Term A Commitments is
$800,000,000.
36
"TERM A LENDER" means, at any time, any Lender that has a Term A Commitment
or Term A Loans at such time.
"TERM A LOAN" means a Loan made pursuant to Section 2.01(a).
"TERM B BORROWING" means a borrowing consisting of simultaneous Term B
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term B Lenders pursuant to Section
2.01(b).
"TERM B COMMITMENT" means, as to each Term B Lender, its obligation to make
a Term B Loan to the Borrowers pursuant to Section 2.01(b) in an aggregate
amount not to exceed the amount set forth opposite such Term B Lender's name on
Schedule 2.01 under the caption "Term B Commitment" or in the Assignment and
Assumption pursuant to which such Term B Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Term B Commitments is
$2,000,000,000.
"TERM B LENDER" means, at any time, any Lender that has a Term B Commitment
or Term B Loans at such time.
"TERM B LOAN" means a Loan made pursuant to Section 2.01(b).
"TERM COMMITMENT" means a Term A Commitment or a Term B Commitment and
"TERM COMMITMENTS" means the Term A Commitments and the Term B Commitments.
"TERM LENDER" means, at any time, any Lender that is a Term A Lender or a
Term B Lender.
"TERM LOAN" means either Term A Loans or Term B Loans, and "TERM LOANS"
means the Term A Loans and the Term B Loans.
"TERM NOTE" means a promissory note of a Borrower payable to any Term
Lender or its registered assigns, in substantially the form of Exhibit C-1 or
Exhibit C-2 hereto, evidencing the aggregate indebtedness of such Borrower to
such Term Lender resulting from the Term Loans made by such Term Lender.
"THRESHOLD AMOUNT" means $50,000,000.
"TOTAL CONSOLIDATED ASSETS" means, at any time, the total assets appearing
on the most recently prepared consolidated balance sheet of Holdings and its
Consolidated Subsidiaries as of the end of the most recent fiscal quarter of
Holdings and its Consolidated Subsidiaries for which such balance sheet is
available, prepared in accordance with GAAP.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
37
"TRANSACTION" means, collectively, (a) the Equity Purchase, (b) the
Recapitalization, (c) the funding of the Term Loans and (d) the payment of the
fees and expenses incurred in connection with any of the foregoing.
"TYPE" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"UNAVAILABLE REGULATED SUBSIDIARY FUNDS" means at any time funds held by a
Regulated Subsidiary at such time that, as a result of the failure to receive
necessary regulatory approvals or otherwise, may not be remitted to an
Unregulated Person, pursuant to intercompany loans, distributions on equity or
otherwise, without causing such Regulated Subsidiary's capital and surplus to be
less than 200% of the minimum statutory capital and surplus required for such
Regulated Subsidiary by the relevant Regulatory Supervising Organization.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as the same may
from time to time be in effect in the State of New York or the Uniform
Commercial Code (or similar code or statute) of another jurisdiction, to the
extent it may be required to apply to any item or items of Collateral.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREGULATED PERSON" means Holdings, the Borrowers and each of their
respective Subsidiaries other than any Regulated Subsidiary.
"UNREIMBURSED AMOUNT" has the meaning set forth in Section 2.03(c)(i).
"UNRESTRICTED SUBSIDIARY" means (a) each Subsidiary of Holdings listed on
Schedule 1.01E and (b) any Subsidiary of Holdings designated by the board of
directors of Holdings as an Unrestricted Subsidiary pursuant to Section 6.15
subsequent to the date hereof.
"U.S. LENDER" has the meaning set forth in Section 11.16(b).
"WACHOVIA CREDIT AGREEMENT" means the Revolving Credit Agreement dated as
of November 8, 2004 among Holdings, as borrower, and Wachovia Bank, National
Association, as Administrative Agent and Swing Line Lender, Bank of America, as
Syndication Agent, and the other lenders party thereto.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing: (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness.
Section 1.02. Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
38
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof" and "hereunder" and words of
similar import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(d) The term "including" is by way of example and not limitation.
(e) 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."
(f) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
Section 1.03. Accounting Terms. (a) All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations
pursuant to Section 7.11) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP, as in effect from time to time,
applied on a basis consistent (except for changes concurred in by Holdings'
independent public accountants) with the most recent audited consolidated
financial statements of Holdings and its Subsidiaries delivered to the Lenders
pursuant to Section 6.01 or, prior to such delivery, the Historical Financial
Statements for the fiscal year ended December 31, 2003.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio set forth in any Loan Document, and either the Borrowers or the
Required Lenders shall so request, the Administrative Agent and the Borrowers
shall negotiate in good faith to amend such ratio to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the Borrowers shall provide to the Administrative Agent and the Lenders a
written reconciliation in form reasonably satisfactory to the Administrative
Agent, between calculations of such ratio made before and after giving effect to
such change in GAAP. It is understood that the provisions of this clause (b)
shall not apply to the computation of "Excess Cash Flow" for any purpose under
this Agreement.
(c) Notwithstanding anything to the contrary contained herein, financial
ratios and other financial calculations pursuant to this Agreement shall,
following any Specified Transaction, be calculated on a Pro Forma Basis until
the completion of four full fiscal quarters following such Specified
Transaction.
39
(d) When calculating any amount required to be consolidated for the
Borrowers and any of their Consolidated Subsidiaries on a consolidated basis,
such amount is to be calculated by adding (i) the relevant amount determined
with respect to Solutions and its Consolidated Subsidiaries on a consolidated
basis and (ii) the relevant amount determined with respect to Tax and its
Consolidated Subsidiaries on a consolidated basis, and eliminating intercompany
accounts as though all such entities were a part of a single consolidated group,
all in accordance with GAAP.
Section 1.04. Rounding. Any financial ratios required to be maintained by
Holdings and the Borrowers pursuant to this Agreement (or required to be
satisfied in order for a specific action to be permitted under this Agreement)
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).
Section 1.05. References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
Section 1.06. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.07. Timing of Payment or Performance. When the payment of any
obligation or the performance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business Day, the date of
such payment or performance shall extend to the immediately succeeding Business
Day and such extension of time shall be reflected in computing interest or fees,
as the case may be; provided that, with respect to any payment of interest on or
principal of Eurodollar Rate Loans, if such extension would cause any such
payment to be made in the next succeeding calendar month, such payment shall be
made on the immediately preceding Business Day.
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Loans. (a) The Term A Borrowings. Subject to the terms
and conditions set forth herein, each Term A Lender severally agrees to make, on
the Closing Date, (i) a single loan to Solutions in an amount equal to 85% of
such Term A Lender's Term A Commitment and (ii) a single loan to Tax in an
amount equal to 15% of such Term A Lender's Term A Commitment. Amounts borrowed
under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term A
Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
40
(b) The Term B Borrowings. Subject to the terms and conditions set forth
herein, each Term B Lender severally agrees to make, on the Closing Date, (i) a
single loan to Solutions in an amount equal to 85% of such Term B Lender's Term
B Commitment and (ii) a single loan to Tax in an amount equal to 15% of such
Term B Lender's Term B Commitment. Amounts borrowed under this Section 2.01(b)
and repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.
(c) The Revolving Credit Borrowings. Subject to the terms and conditions
set forth herein, each Revolving Credit Lender severally agrees to make loans to
the Borrowers (each such loan, a "REVOLVING CREDIT LOAN") from time to time, on
any Business Day until the Maturity Date, in an aggregate amount not to exceed
at any time outstanding the amount of such Lender's Revolving Credit Commitment;
provided that after giving effect to any Revolving Credit Borrowing, the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Revolving Credit Commitment. Within the
limits of each Lender's Revolving Credit Commitment, and subject to the other
terms and conditions hereof, a Borrower may borrow under this Section 2.01(c),
prepay under Section 2.05 and reborrow under this Section 2.01(c). Revolving
Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
Section 2.02. Borrowings, Conversions and Continuations of Loans. (a) Each
Term A Borrowing, each Term B Borrowing, each Revolving Credit Borrowing, each
conversion of Term Loans or Revolving Credit Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon a Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
1:00 p.m. (i) three Business Days prior to the requested date of any Borrowing
of Eurodollar Rate Loans, continuation of Eurodollar Rate Loans or any
conversion of Base Rate Loans to Eurodollar Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by a
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of a Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except
as provided in Section 2.03(c)(i) and Section 2.04(c)(i), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether such Borrower is
requesting a Term A Borrowing, a Term B Borrowing, a Revolving Credit Borrowing,
a conversion of Term Loans or Revolving Credit Loans from one Type to the other,
or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or which existing Term Loans or
Revolving Credit Loans are to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. If a Borrower fails to specify a
Type of Loan in a Committed Loan Notice or fails to give a timely notice
requesting a conversion or continuation, then the applicable Term Loans or
Revolving Credit Loans shall be made as, or
41
converted to, a Eurodollar Rate Loan with an Interest Period of 30 days (subject
to the definition of Interest Period). Any such automatic conversion to
Eurodollar Rate Loans with an Interest Period of 30 days shall be effective as
of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If a Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Appropriate Lender of the amount of its Pro Rata
Share of the applicable Class of Loans, and if no timely notice of a conversion
or continuation is provided by the relevant Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to
Eurodollar Rate Loans with an Interest Period of 30 days or continuation
described in Section 2.02(a). In the case of each Borrowing, each Appropriate
Lender shall make the amount of its Loan available to the Administrative Agent
in immediately available funds at the Administrative Agent's Office not later
than 1:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the relevant
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the relevant Borrower on the books of Bank of America
with the amount of such funds or (ii) wire transfer of such funds, in each case
in accordance with instructions provided to the Administrative Agent by the
relevant Borrower; provided that if, on the date the Committed Loan Notice with
respect to such Borrowing is given by the relevant Borrower, there are Swing
Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing
shall be applied, first, to the payment in full of any such L/C Borrowings,
second, to the payment in full of any such Swing Line Loans, and third, to the
relevant Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan unless the relevant Borrower pays the amount due, if any,
under Section 3.07 in connection therewith. During the existence of an Event of
Default, the Administrative Agent or the Required Lenders may require that no
Loans may be converted to or continued as Eurodollar Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrowers and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrowers and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Term A Borrowings, all Term B Borrowings,
all Revolving Credit Borrowings, all conversions of Term Loans or Revolving
Credit Loans from one Type to the other, and all continuations of Term Loans or
Revolving Credit Loans as the same Type, there shall not be more than 20
Interest Periods in effect.
42
(f) The failure of any Lender to make the Loan to be made by it as part of
any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
Section 2.03. Letters of Credit. (a) The Letter of Credit Commitment. (i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other Revolving Credit Lenders set forth
in this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the relevant Borrower and to amend or
renew Letters of Credit previously issued by it, in accordance with Section
2.03(b), and (2) to honor drafts under the Letters of Credit; and (B) the
Revolving Credit Lenders severally agree to participate in Letters of Credit
issued for the account of the relevant Borrower; provided that the L/C Issuer
shall not be obligated to make any L/C Credit Extension with respect to any
Letter of Credit, and no Lender shall be obligated to participate in any Letter
of Credit if as of the date of such L/C Credit Extension or after giving effect
thereto, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans would exceed such Lender's Revolving Credit Commitment or
(y) the Outstanding Amount of the L/C Obligations would exceed the Letter of
Credit Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers' ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which, in each case, the L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Revolving Credit
Lenders (other than any Revolving Credit Lender that is a Defaulting
Lender) have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Credit
43
Lenders (other than any Revolving Credit Lender that is a Defaulting
Lender) have approved such expiry date; or
(D) the issuance of such Letter of Credit would violate any Laws
or one or more policies of the L/C Issuer.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of a Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer
of such Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 1:00 p.m. at least two
Business Days prior to the proposed issuance date or date of amendment, as the
case may be, or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably request.
In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the L/C Issuer
may reasonably request. In the event that any Letter of Credit Application
includes representations and warranties, covenants and/or events of default that
do not contain the materiality qualifiers, exceptions or thresholds that are
applicable to the analogous provisions of this Agreement or other Loan
Documents, or are otherwise more restrictive, the relevant qualifiers,
exceptions and thresholds contained herein shall be incorporated therein or, to
the extent more restrictive, shall be deemed for purposes of such Letter of
Credit Application to be the same as the analogous provisions herein.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from a Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof
(such confirmation to be promptly provided by the Administrative Agent),
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
relevant Borrower or enter into the
44
applicable amendment, as the case may be. Immediately upon the issuance of
each Letter of Credit, each Revolving Credit Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such Letter
of Credit.
(iii) If a Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"AUTO-RENEWAL LETTER OF Credit"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "NONRENEWAL NOTICE DATE") in
each such twelve month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the
Borrowers shall not be required to make a specific request to the L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration
Date; provided that the L/C Issuer shall not permit any such renewal if (A)
the L/C Issuer has determined that it would have no obligation at such time
to issue such Letter of Credit in its renewed form under the terms hereof
(by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Nonrenewal Notice Date
from the Administrative Agent, any Revolving Credit Lender or the Borrowers
that one or more of the applicable conditions specified in Section 4.02 is
not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
relevant Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations. (i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the relevant Borrower
and the Administrative Agent thereof. Not later than 3:00 p.m. on the date of
any payment by the L/C Issuer under a Letter of Credit (each such date, an
"HONOR DATE"), the relevant Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing; provided
that if notice of such drawing is not provided to the relevant Borrower prior to
1:00 p.m. on the Honor Date, then such Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing on the next succeeding Business Day and such extension of time shall be
reflected in computing fees in respect of any such Letter of Credit. If such
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the
amount of the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount
of such Revolving Credit Lender's Pro Rata Share thereof. In such event, such
Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base
Rate Loans to be disbursed on the Honor Date
45
in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02(a) for the principal amount of Base Rate
Loans but subject to the amount of the unutilized portion of the Revolving
Credit Commitments and the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Revolving Credit Lender (including the Lender acting as L/C
Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer, in
Dollars, at the Administrative Agent's Office in an amount equal to its Pro
Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each
Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the relevant Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans, the relevant
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Revolving Credit Lender's payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C
Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer; the Borrowers or any
other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default; or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided that each Revolving Credit
Lender's obligation to make Revolving Credit Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by a Borrower of a Committed Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of any
Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as
provided herein.
46
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the applicable Federal Funds Rate from time to time in effect. A
certificate of the L/C Issuer submitted to any Revolving Credit Lender
(through the Administrative Agent) with respect to any amounts owing under
this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations. (i) If, at any time after the L/C Issuer
has made a payment under any Letter of Credit and has received from any
Revolving Credit Lender such Lender's L/C Advance in respect of such payment in
accordance with Section 2.03(c), the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from a Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the applicable Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that any Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
47
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any exchange, release or nonperfection of any Collateral, or any
release or amendment or waiver of or consent to departure from the Guaranty
or any other guarantee, for all or any of the Obligations of the Borrowers
in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrowers;
provided that the foregoing shall not excuse the L/C Issuer from liability to
the Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are waived by the Borrowers to the extent
permitted by applicable law) suffered by the Borrowers that are caused by the
L/C Issuer's gross negligence or willful misconduct. The Borrowers shall
promptly examine a copy of each Letter of Credit and each amendment thereto that
is delivered to it and, in the event of any claim of noncompliance with the
relevant Borrower's instructions or other irregularity, such Borrower will
promptly notify the L/C Issuer. The Borrowers shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrowers agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrowers hereby assume all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided that this
assumption is not intended to, and shall not, preclude the Borrowers from
pursuing such rights and remedies as it may have against the
48
beneficiary or transferee at Law or under this Agreement or any other agreement.
None of the L/C Issuer, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (vi) of
Section 2.03(e); provided that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by a Borrower which such Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful or
grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing and the conditions
set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or
(ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit may
for any reason remain outstanding and partially or wholly undrawn, the relevant
Borrower shall, within three Business Days, Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
of Credit Expiration Date, as the case may be) or, in the case of clause (ii),
provide a back-to-back letter of credit in a face amount at least equal to the
then undrawn amount of such Letter of Credit from an issuer and in form and
substance reasonably satisfactory to the L/C Issuer. For purposes hereof, "CASH
COLLATERALIZE" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances ("CASH COLLATERAL") pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. Cash
Collateral shall be maintained in a Cash Collateral Account. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than rights or claims of the
Administrative Agent and claims of the Collateral Agent arising by operation of
law or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the Cash Collateral Account, an
amount equal to the excess of (a) such aggregate Outstanding Amount over (b) the
total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under
applicable Law, to reimburse the L/C Issuer. To the extent the amount of any
Cash Collateral exceeds the aggregate Outstanding Amount of all
49
L/C Obligations and so long as no Event of Default has occurred and is
continuing, the excess shall be refunded to the Borrowers.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrowers when a Letter of Credit is issued, (i) the
rules of 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) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time
of issuance shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its Pro
Rata Share a Letter of Credit fee for each Letter of Credit issued for the
account of a Borrower equal to the Applicable Margin times the daily maximum
amount then available to be drawn under such Letter of Credit (whether or not
such maximum amount is then in effect under such Letter of Credit if such
maximum amount increases periodically pursuant to the terms of such Letter of
Credit). Such letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If
there is any change in the Applicable Margin during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrowers shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit issued for the account of a
Borrower equal to 0.125% per annum (or, in the case of any L/C Issuer, any
lesser percentage that may be agreed by the Borrowers and such L/C Issuer) of
the daily maximum amount then available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit if such maximum amount increases periodically pursuant to the terms of
such Letter of Credit). Such fronting fees shall be computed on a quarterly
basis in arrears. Such fronting fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In
addition, the Borrowers shall pay directly to the L/C Issuer for its own account
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable within five Business Days of demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
Section 2.04. Swing Line Loans. (a)The Swing Line. Subject to the terms
and conditions set forth herein, the Swing Line Lender agrees to make loans
(each such loan, a
50
"SWING LINE LOAN") to the Borrowers from time to time on any Business Day (other
than the Closing Date) until the Maturity Date in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender's
Commitment; provided that after giving effect to any Swing Line Loan, the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Revolving Credit Commitment; provided
further that the Borrowers shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.04, prepay under Section 2.05 and reborrow under this Section
2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon a
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $100,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the relevant Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
provisos to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Section 4.02 is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the relevant
Borrower.
(c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time
in its sole and absolute discretion may request, on behalf of the Borrowers
(which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender's Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof) and in accordance
51
with the requirements of Section 2.02(a), without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the aggregate Revolving Credit Commitments
and the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrowers with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Committed Loan Notice available to the Administrative
Agent in immediately available funds for the account of the Swing Line Lender at
the Administrative Agent's Office not later than 1:00 p.m. on the day specified
in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the relevant Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Loan and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing
Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the applicable Federal Funds Rate from time to time in
effect. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Credit Lender's obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrowers or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided that each Revolving Credit Lender's obligation to
make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by a Borrower
of a Committed Loan Notice). No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrowers to repay Swing
Line Loans, together with interest as provided herein.
52
(d) Repayment of Participations. (i) At any time after any Revolving Credit
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was funded) in
the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Revolving Credit Lender shall pay to the
Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the
applicable Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrowers for interest on the Swing Line Loans.
Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
Section 2.05. Prepayments. (a) Optional. (i) The Borrowers may, upon
notice to the Administrative Agent, at any time or from time to time,
voluntarily prepay the Term Loans and Revolving Credit Loans in whole or in part
without premium or penalty; provided that (A) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall
be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000
in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Appropriate Lender of its receipt of each such notice, and
of the amount of such Lender's Pro Rata Share of such prepayment. If such notice
is given by a Borrower, such Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 3.07. Each prepayment of the Loans pursuant to this Section 2.05(a)
shall be applied among the Facilities in such amounts and, in the case of the
Term Loans in such order of maturity as the Borrowers may direct in their sole
discretion. Each prepayment in respect of a particular Facility shall be paid to
the Appropriate Lenders in accordance with their respective Pro Rata Shares.
53
(ii) The Borrowers may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that (1) such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the date of
the prepayment, and (2) any such prepayment shall be in a minimum principal
amount of the lesser of $100,000 and the total principal amount of the
Swing Line Loans then outstanding. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by a Borrower, such
Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, the Borrowers may rescind any notice of prepayment under Section
2.05(a)(i) or 2.05(a)(ii) if such prepayment would have resulted from a
refinancing of all of the Facilities, which refinancing shall not be
consummated or shall otherwise be delayed.
(b) Mandatory. (i) Within five Business Days after financial statements
have been delivered pursuant to Section 6.01(a) and the related Compliance
Certificate has been delivered pursuant to Section 6.02(b), the Borrowers shall
cause to be prepaid an aggregate principal amount of Term Loans in an amount
equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year covered by
such financial statements (commencing with the fiscal year ended December 31,
2005, but determined for such fiscal year for the period from April 1, 2005
through December 31, 2005) minus the sum of (1) the amount of any prepayments of
the Term Loans made pursuant to Section 2.05(a) during the fiscal year covered
by such financial statements and (2) solely to the extent the Revolving Credit
Commitments are reduced pursuant to Section 2.06(a) in connection therewith (and
solely to the extent of the amount of such reduction), the amount of any
prepayments of the Revolving Credit Loans made pursuant to Section 2.05(a)
during the fiscal year covered by such financial statements; provided that such
percentage shall be reduced to (x) 25% if the Senior Secured Leverage Ratio as
of the last day of the immediately preceding four fiscal quarters was less than
3.75:1 and equal to or greater than 3.25:1 and (y) 0% if the Senior Secured
Leverage Ratio as of the last day of the immediately preceding four fiscal
quarters was less than 3.25:1; provided further that if the Borrowers determine,
in their reasonable judgment, that (I) a portion of Excess Cash Flow for any
fiscal period is reasonably attributable to the results of operations and cash
flows of any Regulated Subsidiary (the "REGULATED SUBSIDIARY PORTION"), (II)
such Regulated Subsidiary does not have funds that are not then Unavailable
Regulated Subsidiary Funds to remit the full amount of such Regulated Subsidiary
Portion to any Unregulated Person and (III) the Borrowers otherwise lack
sufficient cash or Cash Equivalents or other sources of liquidity to prepay the
Regulated Subsidiary Portion of such Excess Cash Flow for such fiscal year (the
amount of any such shortfall for any period after giving effect to clauses (II)
and (III), but not in excess of such Regulated Subsidiary Portion, a "SHORTFALL
AMOUNT"), then the Borrowers' obligation to pay such Shortfall Amount shall be
deferred until the date, if any, on which the Borrowers are able to so pay the
Shortfall Amount or any portion thereof, including as a result of any funds of a
Regulated Subsidiary ceasing to be Unavailable Regulated Subsidiary Funds.
(ii) (A) If (1) any Restricted Company Disposes of any property or
assets (other than any Disposition of any property or assets (x) permitted
by ▇▇▇▇▇▇▇ ▇.▇▇(▇)
▇▇
▇▇▇▇▇▇▇ (▇), (▇), (▇)(▇), (▇) through (s) or (u) or (y) consummated by any
Regulated Subsidiary to the extent, and for so long as, the Net Cash
Proceeds thereof are Unavailable Regulated Subsidiary Funds, or (2) any
Casualty Event occurs (other than any Casualty Event with respect to any
Regulated Subsidiary to the extent, and for so long as, the Net Cash
Proceeds thereof are Unavailable Regulated Subsidiary Funds), which, in
either case, in the aggregate results in the realization or receipt by any
Restricted Company of Net Cash Proceeds in excess of $1,000,000 in any
fiscal year, the Borrowers shall cause to be prepaid on or prior to the
date which is ten Business Days after the date of the realization or
receipt of such Net Cash Proceeds an aggregate principal amount of Term
Loans in an amount equal to 100% of all Net Cash Proceeds received;
provided that no such prepayment shall be required pursuant to this Section
2.05(b)(ii)(A) if, on or prior to such date, the Borrowers shall have given
written notice to the Administrative Agent of their intention to reinvest
all or a portion of such Net Cash Proceeds in accordance with Section
2.05(b)(ii)(B) (which election may only be made if no Event of Default has
occurred and is then continuing);
(B) With respect to any Net Cash Proceeds realized or received
with respect to any Disposition or any Casualty Event required to be
applied in accordance with Section 2.05(b)(ii)(A), at the option of
the relevant Borrower, and so long as no Event of Default shall have
occurred and be continuing, such Borrower may reinvest all or any
portion of such Net Cash Proceeds in assets useful for its business
within (x) 24 months following receipt of such Net Cash Proceeds or
(y) if such Borrower enters into a contract to reinvest such Net Cash
Proceeds within such 24-month period following receipt thereof, 30
months following receipt of such Net Cash Proceeds; provided that if
any Net Cash Proceeds are no longer intended to be so reinvested at
any time after delivery of a notice of reinvestment election or are
not so reinvested during such 24 month period or 30 month period, as
applicable, an amount equal to any such Net Cash Proceeds shall be
immediately applied to the prepayment of the Term Loans as set forth
in this Section 2.05.
(iii) On or prior to the date which is five Business Days after the
receipt of any Net Cash Proceeds of any Specified Equity Issuance, the
Borrowers shall cause to be prepaid an aggregate principal amount of Term
Loans in an amount equal to 50% of such Net Cash Proceeds received from
such Specified Equity Issuance (other than any Specified Equity Issuance by
any Regulated Subsidiary to the extent, and for so long as, the Net Cash
Proceeds thereof are Unavailable Regulated Subsidiary Funds); provided that
such percentage shall be reduced to (x) 25% if the Senior Secured Leverage
Ratio as of the last day of the prior fiscal quarter was less than 3.75:1
but greater than or equal to 3.25:1 and (y) 0% if the Senior Secured
Leverage Ratio as of the last day of the prior fiscal quarter was less than
3.25:1.
(iv) If any Restricted Company incurs or issues (A) any Indebtedness
not expressly permitted to be incurred or issued pursuant to Section 7.03,
(B) any Permitted Subordinated Indebtedness or Permitted Senior
Indebtedness pursuant to Section 7.03(a)(ii)(A) (to the extent not utilized
within 90 days of the date of incurrence to make a Permitted Acquisition)
or Section 7.03(a)(ii)(B) (other than (x) Permitted Subordinated
55
Indebtedness or Permitted Senior Indebtedness payable to FNF, the Equity
Investors or their respective Affiliates, related funds, general partners
or limited partners or any other Person that makes such an Investment with
FNF, the Equity Investors and their Affiliates after the Closing Date and
(y) such Indebtedness incurred by any Regulated Subsidiary to the extent,
and for so long as, the Net Cash Proceeds thereof are Unavailable Regulated
Subsidiary Funds) or (C) any Indebtedness incurred pursuant to Section
7.03(y), the Borrowers shall cause to be prepaid an aggregate principal
amount of Term Loans (or, in the case of clause (C) above, at the
Borrowers' election, either the Terms Loans or the Revolving Credit Loans;
provided that if the Borrowers elect to apply such Net Cash Proceeds to
prepay Revolving Credit Loans, the Revolving Credit Commitments shall be
permanently reduced by an amount equal to such Net Cash Proceeds) in an
amount equal to 100% of all Net Cash Proceeds received therefrom on or
prior to the date which is five Business Days after the receipt of such Net
Cash Proceeds.
(v) Each prepayment of Term Loans pursuant to this Section 2.05(b)
shall be applied ratably to each of the Term A Loans and the Term B Loans
and in direct order of maturities to the principal repayment installments
of the Term Loans that are due after the date of such prepayment Loans.
Each such prepayment shall be paid to the Lenders in accordance with their
respective Pro Rata Shares (prior to giving effect to any rejection by any
Term B Lender of any such prepayment pursuant to clause (vi) below),
subject to clause (vi) of this Section 2.05(b).
(vi) The Borrowers shall notify the Administrative Agent in writing of
any mandatory prepayment of Term Loans required to be made pursuant to
clauses (i) through (iv) of this Section 2.05(b) at least (A) in the case
of the prepayment of Term Loans which are Base Rate Loans, three Business
Days and (B) in the case of prepayments of Term Loans which are Eurodollar
Rate Loans, five Business Days, in each case prior to the date of such
prepayment. Each such notice shall specify the date of such prepayment and
provide a reasonably detailed calculation of the amount of such prepayment.
The Administrative Agent will promptly notify each Appropriate Lender of
the contents of the Borrowers' prepayment notice and of such Appropriate
Lender's Pro Rata Share of the prepayment. Any Term B Lender may elect, by
delivering, not less than (A) in the case of prepayments of Term B Loans
which are Base Rate Loans, one Business Day and (B) in the case of
prepayments of Term B Loans which are Eurodollar Rate Loans, three Business
Days, in each case prior to the proposed prepayment date, a written notice
that any mandatory prepayment otherwise required to be made with respect to
the Term B Loans held by such Term B Lender pursuant to clauses (i) through
(iv) of this Section 2.05(b) not be made, in which event 50% of such
prepayment which would otherwise have been applied to the Term B Loans of
such Term B Lenders shall be applied to the Term A Loans and 50% shall be
retained by the Borrowers.
(c) Funding Losses, Etc. All prepayments under this Section 2.05 shall be
made together with, in the case of any such prepayment of a Eurodollar Rate Loan
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurodollar Rate Loan pursuant to Section 3.07.
Notwithstanding any of the other provisions of Section 2.05(b), so long as no
Event of Default shall have occurred and be continuing, if any prepayment of
Eurodollar Rate Loans is required to be made under Section 2.05(b), other than
on the last day of
56
the Interest Period therefor, the Borrowers may, in their sole discretion,
deposit the amount of any such prepayment otherwise required to be made
thereunder into a Cash Collateral Account until the last day of such Interest
Period, at which time the Administrative Agent shall be authorized (without any
further action by or notice to or from the Borrowers or any other Loan Party) to
apply such amount to the prepayment of such Loans in accordance with Section
2.05(b). Upon the occurrence and during the continuance of any Event of Default,
the Administrative Agent shall also be authorized (without any further action by
or notice to or from the Borrowers or any other Loan Party) to apply such amount
to the prepayment of the outstanding Loans in accordance with Section 2.05(b).
Section 2.06. Termination or Reduction of Commitments. (a) Optional. The
Borrowers may, upon written notice to the Administrative Agent, terminate the
Revolving Credit Commitments, or from time to time permanently reduce the
Revolving Credit Commitments; provided that (i) any such notice shall be
received by the Administrative Agent one Business Day prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of (A) $500,000 or any whole multiple of $100,000 in excess
thereof or (B) equal to the total Revolving Credit Commitments at such time and
(iii) if, after giving effect to any reduction of the Revolving Credit
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds
the amount of the Revolving Credit Commitments, such sublimit shall be
automatically reduced by the amount of such excess. Notwithstanding the
foregoing, the Borrowers may rescind or postpone any notice of termination of
the Revolving Credit Commitments if such termination would have resulted from a
refinancing of all of the Facilities, which refinancing shall not be consummated
or otherwise shall be delayed.
(b) Mandatory. Subject to Section 2.14, the Term Commitment of each Term
Lender shall be automatically and permanently reduced to $0 on the Closing Date
upon the funding of the Term Loans in accordance with Section 2.01. The
Revolving Credit Commitment shall be automatically and permanently reduced to $0
on the Maturity Date.
(c) Application of Commitment Reductions; Payment of Fees. The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit, the Swing Line
Sublimit or the unused Commitments of any Class under this Section 2.06. Upon
any reduction of unused Commitments of any Class, the Commitment of each Lender
of such Class shall be reduced by such Lender's Pro Rata Share of the amount by
which such Commitments are reduced (other than the termination of the Commitment
of any Lender as provided in Section 3.09). All commitment fees accrued until
the effective date of any termination of the Aggregate Commitments shall be paid
on the effective date of such termination.
Section 2.07. Repayment of Loans. (a) Term A Loans. The Borrowers shall
repay to the Administrative Agent for the ratable account of the Term A Lenders
the aggregate principal amount of all Term A Loans outstanding in quarterly
installments as follows (which installments shall be (i) reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.05(b)(v) and (ii) increased by an amount equal to (x) in the
case of each installment other than the installment payable on the Maturity
Date, an amount equal to 0.25% of the aggregate principal amount of any
Additional Term Loans made pursuant to Section 2.14 as additional Term A Loans
and (y) in the case of the installment payable on the
57
Maturity Date, an amount equal to the remainder of the aggregate principal
amount of any such Additional Term Loans made as additional Term A Loans), each
such payment to be made on the last Business Day of the applicable fiscal
quarter:
AGGREGATE TERM A LOAN
PRINCIPAL
DATE AMORTIZATION PAYMENT
---- ---------------------
Last Business Day of March, June, $2,500,000
September and December occurring
after April 1, 2005 and prior to
the Maturity Date
Maturity Date All remaining outstanding principal
amounts of the Term A Loans.
provided that the final principal repayment installment of the Term A Loans
shall be repaid on the Maturity Date and in any event shall be in an amount
equal to the aggregate principal amount of all Term A Loans outstanding on such
date.
(b) Term B Loans. The Borrowers shall repay to the Administrative Agent for
the ratable account of the Term B Lenders the aggregate principal amount of all
Term B Loans outstanding in quarterly installments as follows (which
installments shall be (i) reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.05(b)(v) and
(ii) increased by an amount equal to (x) in the case of each installment other
than the installment payable on the Maturity Date, an amount equal to 0.25% of
the aggregate principal amount of any Additional Term Loans made pursuant to
Section 2.14 as additional Term B Loans and (y) in the case of the installment
payable on the Maturity Date, an amount equal to the remainder of the aggregate
principal amount of any such Additional Term Loans made as additional Term B
Loans), each such payment to be made on the last Business Day of the applicable
fiscal quarter:
AGGREGATE TERM B LOAN
PRINCIPAL
DATE AMORTIZATION PAYMENT
---- ---------------------
Last Business Day of March, June, $4,500,000
September and December occurring
after April 1, 2005 and prior to
the Maturity Date
Maturity Date All remaining outstanding principal
amounts of the Term B Loans.
provided that the final principal repayment installment of the Term B Loans
shall be repaid on the Maturity Date and in any event shall be in an amount
equal to the aggregate principal amount of all Term B Loans outstanding on such
date.
58
(c) Revolving Credit Loans. The Borrowers shall repay to the Administrative
Agent for the ratable account of the applicable Revolving Credit Lenders on the
Maturity Date for the Revolving Credit Facility the aggregate principal amount
of all of its Revolving Credit Loans outstanding on such date.
(d) Swing Line Loans. The Borrowers shall repay its Swing Line Loans on the
earlier to occur of (i) the date five Business Days after such Loan is made and
(ii) the Maturity Date.
Section 2.08. Interest. (a) Subject to the provisions of Section 2.08(b),
(i) each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Margin, (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Margin and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Margin for Revolving
Credit Loans.
(b) While any Event of Default set forth in Section 8.01(a) or (f) exists,
the Borrowers shall pay interest on the principal amount of all of its
outstanding due and payable Obligations hereunder at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted
by applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
Section 2.09. Fees. In addition to certain fees described in Sections
2.03(i) and (j):
(a) Commitment Fee. The Borrowers shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Pro Rata
Share, a commitment fee equal to the Applicable Margin times the actual daily
amount by which the aggregate Revolving Credit Commitments exceed the sum of (i)
the Outstanding Amount of Revolving Credit Loans, (ii) the Outstanding Amount of
L/C Obligations and (iii) the Outstanding Amount of Swing Line Loans; provided
that any commitment fee accrued with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrowers
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrowers
prior to such time; and provided further that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender. The commitment fee shall accrue at all times from the date
hereof until the Maturity Date, including at any time during which one or more
of the conditions in Article 4 is not met, and shall be due and payable
quarterly in arrears on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date for the Revolving Credit Facility.
The commitment fee shall be calculated quarterly in arrears, and if there is any
59
change in the Applicable Margin during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Margin separately for each
period during such quarter that such Applicable Margin was in effect.
(b) Other Fees. The Borrowers shall pay to the Agents such fees as shall
have been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
Section 2.10. Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America's "prime rate" shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid; provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.11. Evidence of Indebtedness. (a) The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and evidenced by one or more entries in the Register maintained by
the Administrative Agent, acting solely for purposes of Treasury Regulation
Section 5f.103-1(c), as agent for the Borrowers, in each case in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be prima facie evidence absent manifest error of the
amount of the Credit Extensions made by the Lenders to the Borrowers and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrowers shall execute and deliver to such Lender
(through the Administrative Agent) a Note payable to such Lender, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records and, in the case of the Administrative Agent,
entries in the Register, evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error.
60
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to Section 2.11(a) and (b), and by each Lender in its account or
accounts pursuant to Section 2.11(a) and (b), shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the
other Loan Documents, absent manifest error; provided that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrowers under this Agreement and
the other Loan Documents.
Section 2.12. Payments Generally. (a) All payments to be made by the
Borrowers shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrowers hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent's Office in Dollars and in immediately available
funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) Unless a Borrower or any Lender has notified the Administrative Agent,
prior to the date any payment is required to be made by it to the Administrative
Agent hereunder, that such Borrower or such Lender, as the case may be, will not
make such payment, the Administrative Agent may assume that such Borrower or
such Lender, as the case may be, has timely made such payment and may (but shall
not be so required to), in reliance thereon, make available a corresponding
amount to the Person entitled thereto. If and to the extent that such payment
was not in fact made to the Administrative Agent in immediately available funds,
then:
(i) if a Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds at the applicable
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the relevant Borrower to the date such amount is recovered by the
Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal
to the applicable Federal Funds Rate from time to time in effect. When such
Lender makes payment to the Administrative Agent (together with all accrued
interest thereon), then such payment amount (excluding the amount of any
interest which may have accrued and been paid in respect of such late
payment) shall constitute such
61
Lender's Loan included in the applicable Borrowing. If such Lender does not
pay such amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent may make a demand therefor upon the Borrowers, and
the Borrowers shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill
its Commitment or to prejudice any rights which the Administrative Agent or
the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
A notice of the Administrative Agent to any Lender or a Borrower with
respect to any amount owing under this Section 2.12(b) shall be conclusive,
absent manifest error.
(c) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article 2, and such funds are not made available to the relevant Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article 4 are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(d) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(e) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
(f) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Administrative Agent and the Lenders under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the order of priority set forth in
Section 8.03. If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents under
circumstances for which the Loan Documents do not specify the manner in which
such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each of the Lenders in
accordance with such Lender's Pro Rata Share of the sum of (i) the Outstanding
Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of
all L/C Obligations outstanding at such time, in repayment or prepayment of such
of the outstanding Loans or other Obligations then owing to such Lender.
Section 2.13. Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary,
62
through the exercise of any right of setoff, or otherwise) in excess of its
ratable share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase
from the other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line Loans
held by them, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment in respect of such Loans or such
participations, as the case may be, pro rata with each of them; provided that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Borrowers
agree that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff, but subject to Section 11.10) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section 2.13 and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section 2.13 shall from and after
such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
Section 2.14. Increase in Term Commitments. (a) Upon notice to the
Administrative Agent (which shall promptly notify the Lenders), at any time
after the Closing Date, the Borrowers may on up to five different occasions
request additional Term Commitments; provided that (i) after giving effect to
any such addition, the aggregate amount of additional Term Commitments that have
been added pursuant to this Section 2.14 shall not exceed $500,000,000, and (ii)
any such addition shall be in an aggregate amount of $50,000,000 or any whole
multiple of $10,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the
"ADDITIONAL TERM LOANS") may be made by either (i) at the option of the
Borrowers, increasing the Term A Commitments and/or the Term B Commitments with
the same terms (including pricing) as the existing Term A Loans and Term B
Loans, as applicable; provided that if the Term A Commitments are increased, the
Term B Commitments shall be increased by a proportionate amount, or (ii)
creating a new tranche of terms loans (an "ADDITIONAL TERM LOAN TRANCHE");
provided that any Additional Term Loan Tranche (A) shall not mature prior to the
stated Maturity Date of the Term B Loans, (B) shall have scheduled amortization
payments not exceeding 1% of its initial aggregate principal amount per annum
and (C) if such Additional Term Loans are not Term A Loans or Term B Loans, such
Additional Term Loans shall have prepayment events not more restrictive than the
Term B Loans. At the time of the sending of
63
such notice, the Borrowers (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders). Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to provide an additional Term
Commitment and, if so, whether by an amount equal to, greater than, or less than
its Pro Rata Share of such requested increase (which shall be calculated on the
basis of the amount of the funded and unfunded exposure under all the Facilities
held by each Lender). Any Lender not responding within such time period shall be
deemed to have declined to provide an additional Term Commitment. The
Administrative Agent shall notify the Borrowers and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase, the Borrowers may also invite additional Eligible Assignees
to become Term Lenders pursuant to a joinder agreement in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(c) If any Term Commitments are added in accordance with this Section 2.14,
the Administrative Agent and the Borrowers shall determine the effective date
(the "ADDITIONAL TERM COMMITMENTS EFFECTIVE DATE") and the final allocation of
such addition. The Administrative Agent shall promptly notify the Borrowers and
the Lenders of the final allocation of such addition and the Additional Term
Commitments Effective Date. As a condition precedent to such addition, the
Borrowers shall deliver to the Administrative Agent a certificate of the
Borrowers dated as of the Additional Term Commitments Effective Date signed by a
Responsible Officer of each Borrower certifying that, before and after giving
effect to such increase, (i) the representations and warranties contained in
Article 5 and the other Loan Documents are true and correct in all material
respects on and as of the Additional Term Commitments Effective Date, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall have been true and correct in all
material respects as of such earlier date, and except that for purposes of this
Section 2.14(c), the representations and warranties contained in Section 5.05(a)
and (b) shall be deemed to refer to the most recent statements furnished
pursuant to subsections (a) and (b), respectively, of Section 6.01, and (ii) no
Default exists before or after giving effect to such addition. On each
Additional Term Commitments Effective Date, each Lender or Eligible Assignee
which is providing an additional Term Commitment (i) shall become a "Term
Lender" for all purposes of this Agreement and the other Loan Documents, and
(ii) shall make an Additional Term Loan to the Borrowers in a principal amount
equal to such additional Term Commitment, and such Additional Term Loan shall be
a "Term Loan" for all purposes of this Agreement and the other Loan Documents
(except that the interest rate applicable to any Additional Term Loan under an
Additional Term Loan Tranche may be higher).
ARTICLE 3
TAXES, INCREASED COSTS AND ILLEGALITY
Section 3.01. Taxes. (a) Except as provided in this Section 3.01, any and
all payments by any Borrower to or for the account of any Agent or any Lender
under any Loan 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
64
liabilities (including additions to tax, penalties and interest) with respect
thereto, excluding, in the case of each Agent and each Lender, taxes imposed on
or measured by its net income or overall gross income (including branch
profits), and franchise (and similar) taxes imposed on it in lieu of net income
taxes, by the jurisdiction (or any political subdivision thereof) under the Laws
of which such Agent or such Lender, as the case may be, is organized, is (or
was, during the relevant period) doing business or maintains a Lending Office,
and all liabilities (including additions to tax, penalties and interest) with
respect thereto (all such non-excluded taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and liabilities
being hereinafter referred to as "TAXES").
(b) If any Borrower shall be required by any Laws to deduct any Taxes from
or in respect of any sum payable under any Loan Document to any Agent or any
Lender, (i) except to the extent provided in Sections 3.01(e) and (f) below, 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 3.01), each of such Agent and such Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions, (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, such Borrower shall furnish to such Agent or Lender (as the case may
be) the original or a certified copy of a receipt evidencing payment thereof to
the extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative Agent.
(c) Each Borrower also agrees to pay any and all present or future stamp,
court or documentary taxes and any other excise, property, intangible or
mortgage recording taxes or charges or similar levies which arise from any
payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "OTHER TAXES").
(d) Each Borrower agrees to indemnify each Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
3.01) paid by such Agent and such Lender, and (ii) 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;
provided such Agent or Lender, as the case may be, provides such Borrower with a
written statement thereof setting forth in reasonable detail the basis and
calculation of such amounts. Payment under this Section 3.01(d) shall be made
within 30 days after the date such Lender or such Agent makes a demand therefor.
(e) No Borrower shall be required pursuant to this Section 3.01 to pay any
additional amount to, or to indemnify, any Lender or Agent, as the case may be,
to the extent that such Lender or such Agent becomes subject to Taxes subsequent
to the Closing Date (or, if later, the date such Lender or Agent becomes a party
to this Agreement) as a result of a change in the place of organization of such
Lender or Agent or a change in the Lending Office of such Lender, except to the
extent that any such change is requested or required in writing by any Borrower
(and provided that nothing in this clause (e) shall be construed as relieving
any Borrower from
65
any obligation to make such payments or indemnification in the event of a change
in Lending Office or place of organization that precedes a change in Law to the
extent such Taxes result from a change in Law).
(f) If a Lender or an Agent is subject to United States withholding tax at
a rate in excess of zero percent at the time such Lender or such Agent, as the
case may be, first becomes a party to this Agreement, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender or
Agent, as the case may be, provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided
that, if at the date of the Assignment and Assumption pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under clause (a) of this Section 3.01 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date.
(g) If any Lender or Agent shall become aware that it is entitled to
receive a refund in respect of amounts paid by any Borrower pursuant to this
Section 3.01, which refund in the good faith judgment of such Lender or Agent is
allocable to such payment, it shall promptly notify such Borrower of the
availability of such refund and shall, within 30 days after the receipt of a
request by such Borrower, apply for such refund; provided that in the sole
reasonable judgment of the Lender or Agent, applying for such refund would not
be disadvantageous to it.
(h) If any Lender or Agent receives a refund in respect of any Taxes or
Other Taxes as to which indemnification or additional amounts have been paid to
it by a Borrower pursuant to this Section 3.01, it shall promptly remit such
refund (including any interest included in such refund) to such Borrower (to the
extent that it determines that it can do so without prejudice to the retention
of the refund), net of all out-of-pocket expenses of the Lender or Agent, as the
case may be; provided that the relevant Borrower, upon the request of the Lender
or Agent, as the case may be, agrees promptly to return such refund to such
party in the event such party is required to repay such refund to the relevant
taxing authority. Such Lender or Agent, as the case may be, shall, at such
Borrower's request, provide such Borrower with a copy of any notice of
assessment or other evidence of the requirement to repay such refund received
from the relevant taxing authority; provided that such Lender or Agent may
delete any information therein that such Lender or Agent deems confidential.
(i) Nothing in this Section 3.01 shall interfere with the right of a Lender
or Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige
any Lender or Agent to claim any tax refund or to disclose any information
relating to its tax affairs or any computations in respect thereof or require
any Lender or Agent to do anything that would prejudice its ability to benefit
from any other refunds, credits, reliefs, remissions or repayments to which it
may be entitled.
Section 3.02. Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge
66
interest rates based upon the Eurodollar Rate, then, on notice thereof by such
Lender to the Borrowers through the Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans
to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrowers that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, such Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, such Borrower
shall also pay accrued interest on the amount so prepaid or converted. Each
Lender agrees to designate a different 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 3.03. Inability to Determine Rates. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan,
or that Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and the Interest Period of such
Eurodollar Rate Loan, the Administrative Agent will promptly so notify the
Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt
of such notice, the Borrowers may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
Section 3.04. Increased Cost and Reduced Return. If any Lender determines
that as a result of the introduction of or any change in or in the
interpretation of any Law, in each case after the date hereof, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as
the case may be) issuing or participating in Letters of Credit, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this Section 3.04 any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 and Section 11.16 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income (including branch
profits), and franchise (and similar) taxes imposed in lieu of net income taxes,
by the United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized, is doing
business or maintains a Lending Office and (iii) reserve requirements
contemplated by Section 3.06), then from time to time within 30 days following
written demand of such Lender setting forth in reasonable detail such increased
costs (with a copy of such demand to the Administrative Agent given in
accordance with Section 3.08), the Borrowers shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.
67
Section 3.05. Capital Adequacy. If any Lender determines that the
introduction of any Law regarding capital adequacy or any change therein or in
the interpretation thereof, in each case after the date hereof, or compliance by
such Lender (or its Lending Office) therewith, has 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 (taking into
consideration such Lender's policies with respect to capital adequacy and
desired return on capital), then from time to time within 30 days following
written demand of such Lender setting forth in reasonable detail the charge and
the calculation of such reduced rate of return (with a copy of such demand to
the Administrative Agent given in accordance with Section 3.08), the Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
Section 3.06. Reserves On Eurodollar Rate Loans. (a) If any Lender is
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), the Borrowers shall pay to such Lender 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 in the absence of
manifest error).
(b) If any Lender is required to comply with any reserve ratio requirement
or analogous requirement of any other Governmental Authority imposed in respect
of the maintenance of the Commitments or the funding of the Eurodollar Rate
Loans, the Borrowers shall pay such additional costs (expressed as a percentage
per annum and rounded upwards, if necessary, to the nearest five decimal places)
equal to the actual costs allocated to such Commitment or Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive absent manifest error) which in each case shall be due and payable on
each date on which interest is payable on such Loan. Any Lender requesting
payment from any Borrower under Section 3.06(a) or (b) shall give such Borrower
at least fifteen days' prior notice (with a copy to the Administrative Agent).
If a Lender fails to give notice fifteen days prior to the relevant Interest
Payment Date, such additional interest or cost shall be due and payable fifteen
days from receipt of such notice.
Section 3.07. Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent), the Borrowers shall promptly compensate such Lender for
and hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by such
Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by such Lender to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained.
68
For purposes of calculating amounts payable by any Borrower to any Lender under
this Section 3.07, such 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.
Section 3.08. Matters Applicable to All Requests for Compensation. (a) Any
Agent or any Lender claiming compensation under this Article 3 shall deliver a
certificate to the Borrowers contemporaneously with the demand for payment
setting forth in reasonable detail a calculation of 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 Agent or such Lender may use
any reasonable averaging and attribution methods.
(b) With respect to any Lender's claim for compensation under any of
Sections 3.01 through Section 3.07, no Borrower shall be required to compensate
such Lender for any amount incurred more than 180 days prior to the date that
such Lender notifies the relevant Borrower of the event that gives rise to such
claim; provided that, if the circumstance giving rise to such increased cost or
reduction is retroactive, then such 180-day period referred to above shall be
extended to include the period of retroactive effect thereof. If any Lender
requests compensation from any Borrower under any of Sections 3.04 through 3.06,
such Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender to make or continue from one
Interest Period to another Eurodollar Rate Loans, or to convert Base Rate Loans
into Eurodollar Rate Loans, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section 3.08(c)
shall be applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue from one Interest
Period to another any Eurodollar Rate Loan (or to convert Base Rate Loans into
Eurodollar Rate Loans) shall be suspended pursuant to Section 3.08(b) hereof,
such Lender's Eurodollar Rate Loans shall be automatically converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for such
Eurodollar Rate Loans (or, in the case of an immediate conversion required by
Section 3.02, on such earlier date as required by Law) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Sections 3.01 through 3.06 hereof that gave rise to such conversion no longer
exist:
(i) to the extent that such Lender's Eurodollar Rate Loans have been
so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Rate Loans shall be
applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurodollar Rate Loans shall be
made or continued instead as Base Rate Loans, and all Base Rate Loans of
such Lender that would otherwise be converted into Eurodollar Rate Loans
shall remain as Base Rate Loans.
(d) If any Lender gives notice to any Borrower (with a copy to the
Administrative Agent) that the circumstances specified in any of Sections 3.01
through 3.06 that gave rise to the
69
conversion of such Lender's Eurodollar Rate Loans pursuant to this Section 3.08
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Rate Loans 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
Eurodollar Rate Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Eurodollar Rate Loans and by such
Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
(e) Each Lender agrees that (i) upon the occurrence of any event giving
rise to the operation of Section 3.01(b) or (d) with respect to such Lender it
will, if requested by any Borrower, use commercially reasonable efforts (subject
to such Lender's internal policies and any legal or regulatory restrictions) to
avoid the consequences of such event, including to designate another Lending
Office for any Loan or Letter of Credit affected by such event and (ii) if any
Lender (A) requests compensation under any of Sections 3.04 through 3.06, or (B)
notifies any Borrower that it has determined that it is unlawful for its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then such
Lender will, if requested by such Borrower, use commercially reasonable efforts
to designate another Lending Office for any Loan or Letter of Credit affected by
such event; provided that in each case, such efforts are made on terms that, in
the reasonable judgment of such Lender, cause such Lender and its Lending
Office(s) to suffer no material economic, legal or regulatory disadvantage, and
provided further that nothing in this Section 3.08(e) shall affect or postpone
any of the Obligations of any Borrower or the rights of such Lender pursuant to
Section 3.01(b) or (d), 3.02 or 3.04 through 3.06.
Section 3.09. Replacement of Lenders Under Certain Circumstances. (a) If at
any time:
(i) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section 3.01 or Sections 3.04 through 3.06,
as a result of any condition described in such Sections or any Lender
ceases to make Eurodollar Rate Loans as a result of any condition described
in Section 3.02 or Sections 3.04 through 3.06,
(ii) any Lender becomes a Defaulting Lender or
(iii) any Lender becomes a "Non-Consenting Lender" (as defined below
in this Section 3.09),
then the Borrowers may, on ten Business Days' prior written notice to the
Administrative Agent and such Lender, either:
(iv) replace such Lender by causing such Lender to (and such Lender
shall be obligated to) assign 100% of its relevant Commitments and the
principal of its relevant outstanding Loans plus any accrued and unpaid
interest pursuant to Section 11.07(d) (with the assignment fee to be paid
by such Borrower unless waived by the Administrative Agent in such
instance) all of its relevant rights and obligations under this Agreement
to one or more Eligible Assignees; provided that (A) the replacement Lender
70
shall agree to the consent, waiver or amendment to which the Non-Consenting
Lender did not agree and (B) neither the Administrative Agent nor any
Lender shall have any obligation to either Borrower to find a replacement
Lender or other such Person or
(v) terminate the Commitment of such Lender and repay all obligations
of the Borrowers owing to such Lender relating to the Loans and
participations held by such Lender as of such termination date.
(b) Any Lender being replaced pursuant to Section 3.09(a) above shall (i)
execute and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans and participations in L/C Obligations and Swing
Line Loans, and (ii) deliver any Notes evidencing such Loans to the relevant
Borrower or the Administrative Agent.
(c) Pursuant to an Assignment and Assumption arising by operation of
Section 3.09(b), (i) the assignee Lender shall acquire all or a portion, as the
case may be, of the assigning Lender's Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans, (ii) all obligations of
each Borrower owing to the assigning Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such
assigning Lender concurrently with the execution of such Assignment and
Assumption and (iii) upon such payment and, if so requested by the assignee
Lender, delivery to the assignee Lender of the appropriate Note or Notes
executed by each relevant Borrower, the assignee Lender shall become a Lender
hereunder and the assigning Lender shall cease to be a Lender hereunder with
respect to such assigned Loans, Commitments and participations, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such assigning Lender.
(d) Notwithstanding anything to the contrary, (i) any Lender that acts as
L/C Issuer may not be replaced by operation of this Section 3.09 at any time
that it has any Letter of Credit outstanding unless arrangements reasonably
satisfactory to such L/C Issuer (including the furnishing of a back-up standby
letter of credit in form and substance, and issued by an issuer reasonably
satisfactory to such L/C Issuer or the depositing of cash collateral into a Cash
Collateral Account in amounts and pursuant to arrangements reasonably
satisfactory to such L/C Issuer) have been made with respect to such outstanding
Letter of Credit and (ii) any Lender that acts as Administrative Agent may not
be replaced by operation of this Section 3.09 except in accordance with the
terms of Section 9.09.
(e) If (i) any Borrower or the Administrative Agent requests the Lenders to
consent to a departure or waiver of any provisions of the Loan Documents or to
agree to any amendment thereto, (ii) the consent, waiver or amendment in
question requires the agreement of all affected Lenders in accordance with the
terms of Section 11.01 or all the Lenders with respect to a certain class of the
Loans and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a "NON-CONSENTING LENDER."
Section 3.10. Survival. All of the Borrowers' obligations under this
Article 3 shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.
71
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions of Initial Credit Extension. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals, or electronic copies or facsimiles followed promptly by
originals (unless otherwise specified), each properly executed by a Responsible
Officer of the signing Loan Party (as applicable), each in form and substance
reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by each Borrower in favor of each Lender
requesting a Note;
(iii) the Security Agreement, duly executed by Solutions and each of
its Restricted Subsidiaries that is a Loan Party together with:
(A) certificates representing the Pledged Equity referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the
Collateral, and all proper financing statements, duly prepared for
filing under the Uniform Commercial Code in all jurisdictions that the
Administrative Agent may deem reasonably necessary in order to perfect
and protect the Liens created under the Security Agreement, covering
the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or
with respect to the Security Agreement that the Administrative Agent
may deem reasonably necessary in order to perfect and protect the
Liens created thereby shall have been taken, completed or otherwise
provided for in a manner reasonably satisfactory to the Administrative
Agent,
(iv) the Intellectual Property Security Agreement, duly executed by
Solutions and each of its Restricted Subsidiaries that is a Loan Party,
together with evidence that all action that the Administrative Agent in its
reasonable judgment may deem reasonably necessary in order to perfect and
protect the Liens created under the Intellectual Property Security
Agreement has been taken;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may reasonably require evidencing the
identity, authority and capacity of each
72
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, validly existing, in good standing and qualified to engage in
business in its jurisdiction of organization;
(vii) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties,
addressed to each Agent and each Lender and in form and substance
reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrowers
certifying as to the satisfaction of the conditions set forth in Section
4.02(a) (other than with respect to the representation and warranty in
Section 5.05(b)) and Section 4.02(b);
(ix) a certificate attesting to the Solvency of the Loan Parties and
the Restricted Subsidiaries (taken as a whole) after giving effect to the
Transaction, from the chief financial officer of Holdings;
(x) evidence that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect and that the
Administrative Agent has been named as loss payee or additional insured, as
appropriate, under each insurance policy with respect to casualty and
liability insurance as to which the Administrative Agent shall have
requested to be so named;
(xi) certified copies of the Purchase Agreement and all other material
agreements, instruments and other documents delivered in connection
therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as
applicable, relating to the initial Credit Extension.
(b) The Borrowers are in compliance with the Fee Letter and all fees and
expenses required to be paid on or before the Closing Date shall have been paid
in full in cash.
(c) All material consents and approvals necessary in connection with the
Loan Documents and the transactions contemplated thereby (including the granting
of the Liens on the Collateral) shall have been obtained.
(d) All material governmental, shareholder and third party consents and
approvals necessary in connection with the Transaction shall have been obtained
and shall remain in effect; all applicable waiting periods (including the
expiration or termination of the requisite waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or
consent of any applicable regulatory bodies specified in the Purchase Agreement
as being required as a condition to the consummation of the Transaction) in
connection with the Transaction shall have expired without any action being
taken by any authority that could
73
restrain, prevent or impose any material adverse conditions on any of the
Fidelity Companies or the Transaction or that could seek or threaten any of the
foregoing.
(e) The Transactions (other than the repayment of the FNF Note) shall
simultaneously be consummated in accordance with applicable law and the terms of
the Purchase Agreement.
(f) The Arrangers and the Lenders shall have received:
(i) (A) consolidated combined financial statements Holdings and its
Subsidiaries for the fiscal years ended December 31, 2002 and December 31,
2003 and (B) unaudited consolidated combined financial statements of the
Fidelity Companies for each of the quarterly periods ending March 31, 2004,
June 30, 2004 and September 30, 2004 (the "HISTORICAL FINANCIAL
STATEMENTS"); and
(ii) forecasts prepared by management of Holdings, each in form
reasonably satisfactory to the Arrangers, of consolidated balance sheets,
income statements and cash flow statements for each quarter for the first
four quarters following the Closing Date and for each year commencing with
the fiscal year ending on December 31, 2003 through the fiscal year ending
on December 31, 2011 (the "CLOSING DATE FORECASTS"), which shall state the
material assumptions on the basis of which such forecasts shall have been
prepared.
(g) The Arrangers shall have received evidence reasonably satisfactory to
them that the Wachovia Credit Agreement shall have been terminated and all
amounts outstanding thereunder shall have been (or will be with the proceeds of
the Loans on the Closing Date) paid in full.
(h) There has been no change, occurrence or development since December 31,
2003 that (A) either individually or in the aggregate, could reasonably be
expected to (1) have a material adverse effect on the business, liabilities,
operations or financial position of the Restricted Companies, taken as a whole,
other than any such effect to the extent it results from (x) changes in general
economic, market or political conditions or any acts of war or terrorism, (y)
matters generally affecting any of the industries in which the Restricted
Companies operate and (z) matters resulting from the execution, delivery,
performance or announcement of the Transaction, in each case unless
disproportionately negatively affecting the Restricted Companies, (2) materially
and adversely affect the ability of any Loan Party to perform its obligations
under the Loan Documents or (3) materially and adversely affect the rights and
remedies of the Lenders under the Loan Documents or (B) adversely affects any
other aspect of the Transaction in any material respect.
Section 4.02. Conditions to All Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of each Fidelity Company contained
in Article 5 or any other Loan Document shall be true and correct in all
material respects on and as of the date of such Credit Extension, except (i) to
the extent that such representations and warranties
74
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date and (ii) that for
purposes of this Section 4.02(a), the representations and warranties contained
in Section 5.05(a) shall be deemed to refer to the most recent financial
statements furnished pursuant to Section 6.01(a) and Section 6.01(b) and, in the
case of the financial statements furnished pursuant to Section 6.01(b), the
representations contained in Section 5.05(a), as modified by this clause (ii),
shall be qualified by the statement that such financial statements are subject
to the absence of footnotes and year-end audit adjustments.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by any Borrower shall be deemed to be a
representation and warranty that the conditions specified in Section 4.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Holdings and each Borrower represents and warrants to the Agents and the
Lenders that:
Section 5.01. Existence, Qualification and Power; Compliance with Laws.
Each Loan Party and each of its Restricted Subsidiaries (a) is a Person, validly
existing and in good standing under the Laws of the jurisdiction of its
organization, (b) has all requisite power and authority to (i) own or lease its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) is duly
qualified and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, (d) is in compliance with all Laws, orders, writs
and injunctions, and (e) has all requisite governmental licenses,
authorizations, consents and approvals to operate its business as currently
conducted; except in each case referred to in clauses (a) (other than with
respect to the Borrowers), (c), (d) or (e), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
Section 5.02. Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is a
party, and, as of the Closing Date only, the consummation of the Transaction,
are (a) within such Loan Party's corporate or other powers, (b) have been duly
authorized by all necessary corporate, shareholder or other organizational
action, and (c) do not and will not (i) contravene the terms of any of such
Person's Organization Documents, (ii) conflict with or result in any breach or
contravention of,
75
or the creation of any Lien under (other than as permitted by Section 7.01), or
require any payment to be made under, (A) any Junior Financing Documentation,
(B) any other Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (C) any order, injunction, writ or decree, of or with any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (iii) violate, in any material respect, any Law; except
with respect to any conflict, breach or contravention or payment (but not
creation of Liens) referred to in clause (ii) to the extent that such conflict,
breach, contravention or payment could not reasonably be expected to have a
Material Adverse Effect.
Section 5.03. Governmental Authorization; Other Consents. No material
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required to be made or obtained by any Loan Party in connection with (a) the
execution, delivery or performance by any Loan Party of this Agreement or any
other Loan Document, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (c) the perfection or maintenance of the
Liens created under the Collateral Documents (including the priority thereof) or
(d) the exercise by the Administrative Agent or any Lender of its rights under
the Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for (i) filings necessary to perfect the Liens on
the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii)
the approvals, consents, exemptions, authorizations, actions, notices and
filings which have been duly obtained, taken, given or made and are in full
force, (iii) those approvals, consents, exemptions, authorizations, actions,
notices or filings described in the Security Agreement and (iv) those approvals,
consents, exemptions, authorizations, actions, notices or filings, the failure
of which to obtain or make could not reasonably be expected to have a Material
Adverse Effect.
Section 5.04. Binding Effect. This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party thereto.
This Agreement and each other Loan Document constitutes a legal, valid and
binding obligation of each Loan Party that is a party thereto, enforceable
against such Loan Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy insolvency, reorganization,
receivership, moratorium or other Laws affecting creditors' rights generally and
by general principles of equity.
Section 5.05. Financial Statements; No Material Adverse Effect. (a) The
Historical Financial Statements fairly present in all material respects the
financial condition of Holdings and its Subsidiaries as of the date thereof and
their results of operations and cash flows for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.
(b) Since December 31, 2003, there has been no change, effect, event or,
occurrence that has had or could reasonably be expected to have a Material
Adverse Effect.
(c) The Closing Date Forecasts, copies of which have been furnished to the
Administrative Agent, the Arrangers and the Lenders prior to the Closing Date,
have been prepared in good faith based upon reasonable assumptions made in light
of conditions existing at
76
the time of preparation, it being understood that (i) such forecasts, as to
future events, are not to be viewed as facts, that actual results during the
period or periods covered by any such forecasts may differ significantly from
the forecasted results and that such differences may be material and that such
forecasts are not a guarantee of financial performance and (ii) no
representation is made with respect to information of a general economic or
general industry nature.
Section 5.06. Litigation. Except as disclosed in Schedule 5.06, there are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Borrowers, threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority or Regulatory Supervising Organization, by or
against any Borrower or any of its Restricted Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document or (b) either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.07. Ownership of Property; Liens. Each Loan Party and each of its
Restricted Subsidiaries has good record and indefeasible title in fee simple to,
or valid leasehold interests in, or easements or other limited property
interests in, all real property necessary in the ordinary conduct of its
business, free and clear of all Liens except for minor defects in title that do
not materially interfere with its ability to conduct its business or to utilize
such assets for their intended purposes and Liens permitted by Section 7.01 and
except where the failure to have such title or the existence of such Lien could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 5.08. Environmental Compliance. (a) There are no claims pending or,
to the knowledge of the Borrowers, threatened in writing alleging potential
liability or responsibility for violation of any Environmental Law by their
respective businesses, operations and properties that could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Except
as disclosed in Schedule 5.08, Environmental Liabilities in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
(b) Except as disclosed in Schedule 5.08 or except as could not reasonably
be expected to have a Material Adverse Effect, (i) none of the properties
currently or, to the knowledge of the Borrowers, formerly owned or operated by
any Loan Party or any of its Restricted Subsidiaries is listed or proposed for
listing on the National Priorities List under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 or on the Comprehensive
Environmental Response, Compensation and Liability Information System maintained
by the U.S. Environmental Protection Agency or any analogous foreign, state or
local list of sites requiring investigation or remediation under Environmental
Laws or, to the knowledge of the Borrowers, is adjacent to any such property;
(ii) there are no and, to the knowledge of the Borrowers, never have been any
underground or aboveground storage tanks or any surface impoundments, septic
tanks, pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or operated by
any Loan Party or any of its Restricted Subsidiaries or, to its knowledge, on
any property formerly owned or operated by any Loan Party or any of its
Restricted Subsidiaries during the period of such ownership or operation, in
each case, except those maintained in compliance with Environmental Laws; (iii)
there is no asbestos or asbestos-containing material on any property currently
owned or operated by any Loan Party or any of its Restricted Subsidiaries; and
(iv) Hazardous Materials
77
have not been released, discharged or disposed of on any property currently
owned or operated by any Loan Party or any of its Restricted Subsidiaries and,
to the knowledge of the Borrowers, were not released, discharged or disposed of
at any property formerly owned or operated by any Loan Party or any of its
Restricted Subsidiaries during the period of such ownership or operation, except
for such releases, discharges or disposal that were in material compliance with
Environmental Laws.
(c) The Material Real Properties do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute a violation of, (ii) require
remedial action under, or (iii) could result in any Loan Party or any of its
Restricted Subsidiaries or any Lender incurring liability under, Environmental
Laws, which violations, remedial actions and liabilities, in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
(d) Except as disclosed in Schedule 5.08, none of the Loan Parties or any
of their Restricted Subsidiaries is undertaking and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the order of
any Governmental Authority or the requirements of any Environmental Law except
for such investigation or assessment or remedial or response action that, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(e) All Hazardous Materials generated, used, treated, handled or stored at,
or, directly or indirectly, transported by or on behalf of any Loan Party or any
of their Restricted Subsidiaries to or from, any property currently or formerly
owned or operated by any Loan Party or any of their Restricted Subsidiaries have
been disposed of in a manner not reasonably expected to result in a Material
Adverse Effect.
Section 5.09. Taxes. Holdings and its Subsidiaries have filed all Federal
and material state and other tax returns and reports required to be filed, and
have paid all Federal and material state and other taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those (a) which are not
overdue by more than 30 days, (b) which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP or (c) with respect to which the
failure to make such filing or payment could not reasonably be expected to have
a Material Adverse Effect.
Section 5.10. ERISA Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA and the Code except to
the extent that non-compliance could not reasonably be expected to have a
Material Adverse Effect. Each Plan that is intended to qualify under Section
401(a) of the Code has either received a favorable determination letter from the
IRS or an application for such a letter has been or will be submitted to the IRS
within the applicable required time period with respect thereto and, to the
knowledge of the Borrowers and Holdings, nothing has occurred which could
reasonably be expected to prevent, or cause the loss of, such qualification. In
the preceding five years, each Loan Party and each ERISA Affiliate have, in all
material respects, made all required contributions to each Pension Plan subject
to Section 412 of the Code, and in the preceding five years, no application for
a funding
78
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of any Borrower or Holdings,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has an "accumulated funding deficiency" (as defined in
Section 412 of the Code), whether or not waived, and no application for a waiver
of the minimum funding standard has been filed with respect to any Pension Plan;
(iii) none of Holdings, the Borrowers nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums not yet due or premiums due and not yet
delinquent under Section 4007 of ERISA); (iv) none of Holdings, the Borrowers
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) none of Holdings,
the Borrowers nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of
the foregoing clauses of this Section 5.10(c), as could not reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.
Section 5.11. Subsidiaries; Equity Interests. As of the Closing Date, (a)
each Restricted Subsidiary is owned directly or indirectly by a Loan Party free
and clear of all Liens except (i)those created under the Collateral Documents
and (ii) any nonconsensual Lien that is permitted under Section 7.01 and (b)
Schedule 5.11 (i) sets forth the name and jurisdiction of organization of each
Subsidiary, (ii) sets forth the ownership interest of Holdings, the Borrowers
and any other Subsidiary in each such Subsidiary, including the percentage of
such ownership and (iii) identifies each Subsidiary that is a Regulated
Subsidiary, if any.
Section 5.12. Margin Regulations; Investment Company Act. (a) No proceeds
of any Borrowings 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 any margin stock in violation of Regulation U issued
by the FRB.
(b) None of Holdings, the Borrowers, any Person Controlling any of the
foregoing, nor any Restricted Subsidiary is or is required to be registered as
an "investment company" under the Investment Company Act of 1940.
Section 5.13. Disclosure. No report, financial statement, certificate or
other written information furnished by or on behalf of any Loan Party to any
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or any other Loan
Document (as modified or supplemented by other information so furnished) when
taken as a whole contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in the light of the
79
circumstances under which they were made, not materially misleading; provided
that, with respect to financial estimates, projected or forecasted financial
information and other forward-looking information, Holdings and each Borrower
represent and warrant only that such information was prepared in good faith
based upon reasonable assumptions in light of conditions existing at the time of
preparation; it being understood that (A) such projections and forecasts, as to
future events, are not to be viewed as facts, that actual results during the
period or periods covered by any such projections or forecasts may differ
significantly from the projected or forecasted results and that such differences
may be material and that such projections and forecasts are not a guarantee of
financial performance and (B) no representation is made with respect to
information of a general economic or general industry nature.
Section 5.14. Intellectual Property; Licenses, Etc. Each Loan Party and its
Restricted Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses, database rights and design rights and other intellectual property
rights (collectively, "IP RIGHTS") that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person, except to the extent such failure to own or possess the right
to use or such conflicts, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrowers, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by any Loan Party or any Restricted Subsidiary infringes upon any
rights held by any other Person except for such infringements, individually or
in the aggregate, which could not reasonably be expected to have a Material
Adverse Effect. No claim or litigation regarding any of the foregoing is pending
or, to the knowledge of the Borrowers, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section 5.15. Solvency. On the Closing Date after giving effect to the
Transaction, the Loan Parties, on a consolidated basis, are Solvent.
Section 5.16. Perfection, Etc. All filings and other actions necessary to
perfect and protect the Liens in the Collateral created under and in the manner
contemplated by the Collateral Documents have been duly made or taken or
otherwise provided for in the manner reasonably requested by the Administrative
Agent and are in full force and effect, and the Collateral Documents create in
favor of the Administrative Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first priority Lien
in the Collateral, securing the payment of the Secured Obligations, subject to
Liens permitted by Section 7.01. The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the Liens
created or permitted under the Loan Documents.
ARTICLE 6
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise
provided for in full in a manner reasonably satisfactory to the L/C Issuer,
Holdings and each Borrower shall, and shall (except in
80
the case of the covenants set forth in Section 6.01, Section 6.02, Section 6.03
and Section 6.15) cause each Restricted Subsidiary to:
Section 6.01. Financial Statements. Deliver to the Administrative Agent for
further distribution to each Lender:
(a) as soon as available, but in any event within 105 days after the end of
each fiscal year of Holdings beginning with the fiscal year ending on December
31, 2005, a consolidated balance sheet of Holdings and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income
or operations, shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, and audited and
accompanied by a report and opinion of KPMG LLP or any other independent
certified public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any "going concern" or like qualification
or exception or any qualification or exception as to the scope of such audit;
provided that if the independent auditor provides an attestation and a report
with respect to management's report on internal control over financial reporting
and its own evaluation of internal control over financial reporting, then such
report may include a qualification or limitation due to the exclusion of any
acquired business from such report to the extent such exclusion is permitted
under rules or regulations promulgated by the SEC or the Public Company
Accounting Oversight Board;
(b) as soon as available, but in any event within 60 days after the end of
each of the first three fiscal quarters of each fiscal year of Holdings
beginning with the fiscal quarter ending on March 31, 2005, a consolidated
balance sheet of Holdings and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the portion
of the fiscal year then ended, setting forth, in each case, in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of Holdings as fairly presenting in all
material respects the financial condition, results of operations, shareholders'
equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available, but in any event no later than 105 days after the
end of each fiscal year, forecasts prepared by management of Holdings, in form
reasonably satisfactory to the Administrative Agent of consolidated balance
sheets, income statements and cash flow statements of Holdings and its
Subsidiaries for the fiscal year following such fiscal year then ended, which
shall be prepared in good faith upon reasonable assumptions at the time of
preparation and which shall state therein all the material assumptions on the
basis of which such forecasts were prepared), it being understood that actual
results may vary from such forecasts and that such variations may be material;
(d) if there are any Unrestricted Subsidiaries as of the last day of any
fiscal quarter, simultaneously with the delivery of each set of consolidated
financial statements referred to in Section 6.01(a) and 6.01(b) above, the
related consolidating financial statements reflecting the
81
adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries
from such consolidated financial statements; and
(e) as soon as available, but in any event within 60 days after the Closing
Date, a consolidated balance sheet of Holdings and its Subsidiaries as at the
end of the fiscal year ending on December 31, 2004, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, and audited and accompanied by a report and opinion of KPMG LLP or any
other independent certified public accountant of nationally recognized standing,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards.
Section 6.02. Certificates; Other Information. Deliver to the
Administrative Agent for further distribution to each Lender:
(a) no later than five days after the delivery of each set of consolidated
financial statements referred to in Section 6.01(a), a certificate of Holdings'
independent certified public accountants certifying such financial statements
and stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default under Section 7.11 or, if any such Event of
Default shall exist, stating the nature and status of such event;
(b) no later than five days after the delivery of each set of consolidated
financial statements referred to in Section 6.01(a) and 6.01(b), (i) a duly
completed Compliance Certificate signed by a Responsible Officer of Holdings and
(ii) at the option of the Equity Investors, notice of their intent to provide to
the Borrowers the Net Cash Proceeds of any Permitted Equity Issuance to the
Equity Investors in an amount equal to the amount necessary to cause the Loan
Parties to be compliance with the covenants set forth in Section 7.11 (a "NOTICE
OF INTENT TO MAKE AN EQUITY INFUSION") through capital contributions or the
purchase of Equity Interests, as contemplated pursuant to clause (b)(xviii) and
clause (x) of the final proviso of the definition of "Consolidated EBITDA", to
be included in the calculation of "Consolidated EBITDA" for the period ending on
the last day of such fiscal quarter in accordance with such clauses; provided
that the delivery of a Notice of Intent to Make an Equity Infusion shall in no
way affect or alter the occurrence, existence or continuation of any Event of
Default or the rights, benefits, powers and remedies of the Administrative Agent
and the Lenders under any Loan Document, except that from the date of receipt of
such Notice of Intent to Make an Equity Infusion by the Administrative Agent
until the twentieth Business Day following the delivery of the Compliance
Certificate, neither the Administrative Agent nor any Lender shall exercise any
right to accelerate the Loans, terminate the Commitments or foreclose on or take
possession of the Collateral solely on the basis of an Event of Default having
occurred and continuing under Section 7.11, unless the Administrative Agent is
notified that such equity infusion will not be made or such equity infusion is
made in an amount less than the amount necessary to cause the Loan Parties to be
in compliance with the covenants set forth in Section 7.11;
(c) promptly after the same are publicly available, copies of each annual
report, proxy or financial statement sent to the stockholders of Holdings, and
copies of all annual, regular, periodic and special reports and registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) which Holdings may file or be required to
82
file, copies of any report, filing or communication with the SEC under Section
13 or 15(d) of the 1934 Act, or with any Governmental Authority that may be
substituted therefor, or with any national securities exchange, and in any case
not otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(d) promptly after the furnishing thereof, copies of any requests or
notices received by any Loan Party (other than in the ordinary course of
business) or statement or report furnished by any Loan Party to any holder of
debt securities of any Loan Party or of any of its Restricted Subsidiaries
pursuant to the terms of any Junior Financing Documentation in a principal
amount greater than the Threshold Amount and not otherwise required to be
furnished to the Lenders;
(e) promptly after the receipt thereof by a Responsible Officer of any Loan
Party or any of its Restricted Subsidiaries, copies of each notice or other
correspondence received from any Regulatory Supervising Organization or
Governmental Authority concerning any material investigation or other material
inquiry regarding any material violation of applicable Law by any Loan Party or
any of its Restricted Subsidiaries which could reasonably be expected to have a
Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to
Section 6.02(b), (i)a report identifying all owned real property disposed of by
any Loan Party or any of its Restricted Subsidiaries since the delivery of the
last supplements and a list and description of all owned real property acquired
since the delivery of the last supplements (including the street address (if
available), county or other relevant jurisdiction, state and the record owner),
(ii) a description of each event, condition or circumstance during the last
fiscal quarter covered by such Compliance Certificate requiring a mandatory
prepayment under Section 2.05(b) and (iii) a list of each Subsidiary that is a
Regulated Subsidiary as of the date of delivery of such Compliance Certificate
that was not identified as such in the immediately preceding Compliance
Certificate delivered pursuant to this clause (f); and
(g) promptly after any request therefor, such additional information
regarding the business, legal, financial or corporate affairs of any Loan Party
or any Restricted Subsidiary of any Loan Party, or compliance with the terms of
the Loan Documents, as the Administrative Agent or any Lender through the
Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(c) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and, if so delivered, shall
be deemed to have been delivered on the date (i) on which Holdings posts such
documents, or provides a link thereto on the Holdings' website on the Internet
at the website address listed on Schedule 11.02; or (ii) on which such documents
are posted on Holdings' behalf on SyndTrak or other relevant website, to which
each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: Holdings shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents which notice may be
included in the certificate delivered pursuant to Section 6.02(b). Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to maintain copies of the documents referred to above, and in any event shall
have no responsibility to
83
monitor compliance by Holdings with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents. Holdings and the Borrowers hereby acknowledge that
(a) the Administrative Agent and/or the Arrangers will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf
of Holdings or the Borrowers hereunder (collectively, "BORROWER MATERIALS") by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the "PLATFORM") and (b) certain of the Lenders may be "public-side"
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to Holdings, the Borrowers or their securities) (each,
a "PUBLIC LENDER"). Holdings and the Borrowers hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," Holdings and the Borrowers shall be deemed
to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and
the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to Holdings, the Borrowers or their securities for
purposes of United States Federal and state securities laws; (y) all Borrower
Materials marked "PUBLIC" are permitted to be made available through a portion
of the Platform designated "Public Investor;" and (z) the Administrative Agent
and the Arrangers shall treat any Borrower Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor."
Section 6.03. Notices. Promptly notify the Administrative Agent after a
Responsible Officer obtains knowledge of:
(a) the occurrence of any Default;
(b) any matter that has resulted or could reasonably be expected to result
in a Material Adverse Effect, including any matter arising out of or resulting
from (i) breach or non-performance of, or any default under, a Contractual
Obligation of any Loan Party or any Subsidiary, (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party or any Restricted
Subsidiary and any Regulatory Supervising Organization or any Governmental
Authority, (iii) the commencement of, or any material adverse development in,
any litigation, investigation or proceeding affecting any Loan Party or any
Subsidiary, including pursuant to any applicable Environmental Laws or the
assertion or occurrence of any noncompliance by any Loan Party or as any of its
Subsidiaries with any Environmental Law or Environmental Permit, or (iv) the
occurrence of any ERISA Event;
(c) the occurrence of any Casualty Event with respect to any Material Real
Property; and
(d) the application of any amount of Net Cash Proceeds of any transaction
or event or of Excess Cash Flow pursuant to clause (d) of the definition of "Not
Otherwise Applied".
Each notice pursuant to this Section 6.03 shall be accompanied by a written
statement of a Responsible Officer of Holdings (x) that such notice is being
delivered pursuant to Section 6.03(a), (b) or (d) (as applicable) and (y)
setting forth details of the occurrence referred to therein
84
and, in the case of a notice delivered pursuant to Section 6.03(a) or (b),
stating what action Holdings has taken and proposes to take with respect
thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity to the extent known any and all provisions of this Agreement and
any other Loan Document in respect of which such Default exists.
Section 6.04. Payment of Obligations. Pay, discharge or otherwise satisfy
as the same shall become due and payable, all of its obligations and liabilities
except, in each case, to the extent the failure to pay or discharge the same
could not reasonably be expected to have a Material Adverse Effect or such
obligations or liabilities are being contested in good faith by appropriate
proceedings.
Section 6.05. Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05 and, in the case of any Restricted Subsidiary, to the extent the
failure to do so, could not reasonably be expected to have a Material Adverse
Effect, (b) take all reasonable action to maintain all rights, privileges
(including its good standing), permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect and (c) preserve or renew all of its registered patents, trademarks,
trade names, service marks and copyrights, except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.
Section 6.06. Maintenance of Properties. Except if the failure to do so
could not reasonably be expected to have a Material Adverse Effect, (a)
maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order, ordinary wear
and tear excepted and casualty and condemnation excepted, and (b) make all
necessary renewals, replacements, modifications, improvements, upgrades,
extensions and additions to material properties and equipment in accordance with
prudent industry practice.
Section 6.07. Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance of such types and in such amounts
(after giving effect to any self-insurance) reasonable and customary for
similarly situated Persons engaged in the same or similar businesses as
Holdings, the Borrowers and the Restricted Subsidiaries) as are customarily
carried under similar circumstances by such other Persons except, in the case of
Foreign Subsidiaries, to the extent that the failure to maintain such insurance
with respect to one or more Foreign Subsidiaries could not reasonably be
expected to result in a Material Adverse Effect.
Section 6.08. Compliance with Laws. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions, and decrees
applicable to it or to its business or property, except if the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect or
the necessity of compliance therewith is being contested in good faith by
appropriate proceedings.
Section 6.09. Books and Records. Maintain proper books of record and
account, in a manner to allow financial statements to be prepared in conformity
with GAAP consistently
85
applied shall be made of all material financial transactions and matters
involving the assets and business of Holdings, such Borrower or such Restricted
Subsidiary, as the case may be.
Section 6.10. Inspection Rights. With respect to any Loan Party, permit
representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, all at the expense of the Borrowers and at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrowers; provided
that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise rights under this Section 6.10 and the Administrative Agent shall not
exercise such rights more often than two times during any calendar year absent
the existence of an Event of Default and only one such time shall be at the
Borrowers' expense; provided further that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrowers at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent and the Lenders shall give the Borrowers the
opportunity to participate in any discussions with Holdings' and the Borrowers'
accountants.
Section 6.11. Use of Proceeds. Use the proceeds of the Credit Extensions
(i) to repay the FNF Note evidencing the Closing Date Dividend, (ii) to repay
existing Indebtedness of Holdings, (iii) to pay fees and expenses incurred in
connection with the Transaction and (iv) to provide ongoing working capital and
for other general corporate purposes of the Restricted Companies and their
Subsidiaries (including Permitted Acquisitions).
Section 6.12. Covenant to Guarantee Obligations and Give Security. (a)
Cause each of the following Restricted Subsidiaries to guarantee the Obligations
(each an "ADDITIONAL GUARANTOR"): (i) any new direct or indirect wholly owned
Restricted Subsidiary formed or acquired by any Loan Party, (ii) any existing
direct or indirect wholly owned Subsidiary designated as a Restricted Subsidiary
pursuant to Section 6.15, (iii) any Restricted Subsidiary guaranteeing any
obligations of Holdings, a Borrower or any other Restricted Subsidiary in
respect of any Junior Financing and (iv) one or more existing Restricted
Subsidiaries that are not already Guarantors to the extent necessary to cause
the percentage of aggregated Consolidated EBITDA of Holdings, the Borrowers and
the Guarantors (determined on a consolidated basis but without regard for any
Consolidated Subsidiary that is not a Guarantor) (for any period, the "LOAN
PARTY EBITDA") to equal or exceed 92.5% of the Consolidated EBITDA of Holdings
and its Consolidated Subsidiaries, in each case for the four fiscal quarters
most recently ended for which financial statements have been delivered pursuant
to Section 6.01 (the "DETERMINATION PERIOD"); provided that (A) in the case of
clauses (i), (ii) and (iv) above, (1) no Foreign Subsidiary and no Regulated
Subsidiary shall be required to become an Additional Guarantor and (2) no
Restricted Subsidiary that is prohibited from guaranteeing the Obligations
pursuant to documents governing any Indebtedness assumed in connection with a
Permitted Acquisition and not incurred in contemplation thereof shall be
required to become an Additional Guarantor for so long as such Indebtedness
remains outstanding and (B) in the case of clauses (i) and (ii) above, no
Restricted Subsidiary shall be required to become an Additional Guarantor to the
extent that the Loan Party EBITDA, determined after inclusion of all Additional
Guarantors other than such
86
proposed Additional Guarantor or Additional Guarantors, equaled or exceeded
92.5% of the Consolidated EBITDA of Holdings and its Consolidated Subsidiaries,
in each case determined for such determination period.
(b) Within 30 days after a Restricted Subsidiary becomes an Additional
Guarantor, or such longer period as the Administrative Agent may agree in its
reasonable discretion, the Borrowers shall, in each case at the Borrowers'
expense:
(i) cause such Additional Guarantor to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and
substance reasonably satisfactory to the Administrative Agent, guaranteeing
the Obligations;
(ii) cause such Additional Guarantor that is a Subsidiary of Solutions
to furnish to the Administrative Agent a description of the Material Real
Property owned by such Additional Guarantor consisting of the street
address (if available), county or other relevant jurisdiction, state and
the record owner;
(iii) cause such Additional Guarantor that is a Restricted Subsidiary
of Solutions to duly execute and deliver to the Administrative Agent
Mortgages, Security Agreement Supplements, Intellectual Property Security
Agreements and other security documents, as specified by and in form and
substance reasonably satisfactory to the Administrative Agent (consistent
with the Mortgages, Security Agreement, Intellectual Property Security
Agreement and other security documents in effect on the Closing Date),
granting a Lien in substantially all of the Material Real Property and
personal property of such Restricted Subsidiary, in each case securing the
Obligations of such Additional Guarantor under its Guaranty; provided that
(A) no more than 65% of the voting Equity Interests of any Foreign
Subsidiary that are held directly by a Loan Party shall be required to be
pledged to support the Obligations (except to the extent such Equity
Interests are pledged to support obligations under any Junior Financing);
(B) no Equity Interests or assets of any Restricted Subsidiary which have
been pledged to secure Indebtedness of such Additional Guarantor assumed in
connection with a Permitted Acquisition that is secured by a Lien permitted
by Section 7.01(p) shall be required to be pledged, but only for so long as
such Lien is in effect; (C) no Equity Interests of any Foreign Subsidiary
that are held directly by a Foreign Subsidiary shall be required to be
pledged to support the Obligations (except to the extent such Equity
Interests are pledged to support obligations under any Junior Financing);
and (D) no assets of any Regulated Subsidiary shall be required to be
pledged to support the Obligations (except to the extent such assets are
pledged to support obligations under any Junior Financing);
(iv) cause such Additional Guarantor that is a Restricted Subsidiary
of Solutions to deliver, to the extent required to be pledged hereunder or
under the Collateral Documents, any and all certificates representing
Equity Interests owned by such Restricted Subsidiary accompanied by undated
stock powers or other appropriate instruments of transfer executed in blank
and instruments evidencing the intercompany debt held by such Additional
Guarantor, indorsed in blank to the Administrative Agent; and
87
(v) take and cause such Additional Guarantor that is a Restricted
Subsidiary of Solutions to take whatever action (including the recording of
Mortgages with respect to Material Real Property, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents and delivery of stock and
membership interest certificates) as may be necessary in the reasonable
opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid
and subsisting Liens on the properties purported to be subject to the
Mortgages, Security Agreement Supplements, Intellectual Property Security
Agreements and other security documents delivered pursuant to this Section
6.12, enforceable against all third parties in accordance with their terms;
provided that no action shall be required to be taken with respect to motor
vehicles the perfection of a security interest in which is excluded from
the Uniform Commercial Code;
(c) None of the assets of Holdings, Tax or any Restricted Subsidiary of Tax
shall be required to be pledged to support the Obligations so long as the FNF
2011 Notes or the FNF 2013 Notes, or any instrument (other than any instrument
entered into between FNF and any of its Affiliates) that contains a similar
negative pledge or requirement for the grant of pari passu liens, remain
outstanding and such Persons are "Restricted Subsidiaries" (or comparably
classified and restricted) thereunder; provided that, within 30 days, or such
longer period as the Administrative Agent may agree in its reasonable
discretion, after all such notes and instruments cease to be outstanding or any
such Person ceases to be so classified and restricted, the Borrowers shall cause
each such Person that is a Guarantor to comply with Sections 6.12(b)(iii),
(b)(iv) and (b)(v).
(d) Within 45 days after the reasonable request therefor by the
Administrative Agent, or such longer period as the Administrative Agent may
agree in its reasonable discretion, the Borrowers shall, at the Borrowers'
expense, deliver to the Administrative Agent a signed copy of an opinion,
addressed to the Administrative Agent and the other Secured Parties, of counsel
for the Loan Parties reasonably acceptable to the Administrative Agent as to
such matters set forth in Section 6.12(b) as the Administrative Agent may
reasonably request.
(e) As promptly as practicable after the request therefor by the
Administrative Agent, the Borrowers shall, at the Borrowers' expense, deliver to
the Administrative Agent with respect to each Material Real Property owned or
held by each Additional Guarantor that is the subject of such request, title
reports in scope, form and substance reasonably satisfactory to the
Administrative Agent and, to the extent available, surveys and environmental
assessment reports.
(f) Upon the acquisition of (x) any personal property by Solutions or any
of its Subsidiaries which is a Loan Party or (y) any Material Real Property by
Solutions or any of its Subsidiaries which is a Loan Party, in each case which
is not already subject to a perfected Lien in favor of the Administrative Agent
for the benefit of the Secured Parties, Solutions shall give notice thereof to
the Administrative Agent and shall, if requested by the Administrative Agent,
cause such assets to be subjected to a Lien securing such Loan Party's
Obligations and will take, or cause the relevant Loan Party to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect or record such Lien, including the actions referred
to in Section 6.12(b) with respect to Material Real Property or personal
property.
88
(g) Notwithstanding the foregoing, (i) the Administrative Agent shall not
take a security interest in or require any title insurance or similar items with
respect to those assets as to which the Administrative Agent shall determine, in
its reasonable discretion, that the cost of obtaining such Lien (including any
mortgage, stamp, intangibles or other tax, title insurance or similar items) is
excessive in relation to the benefit to the Lenders of the security afforded
thereby and (ii) Liens required to be granted pursuant to this Section 6.12
shall be subject to exceptions and limitations consistent with those set forth
in the Collateral Documents as in effect on the Closing Date (to the extent
appropriate in the applicable jurisdiction).
Section 6.13. Compliance with Environmental Laws. Except, in each case, to
the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect, (a) comply, and take all commercially reasonable
actions to cause all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; (b) obtain and renew all
Environmental Permits necessary for its operations and properties; and (c) in
each case to the extent required by Environmental Laws, conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the requirements of all
Environmental Laws.
Section 6.14. Further Assurances. (a) Promptly upon reasonable request by
the Administrative Agent, (i) correct any material defect or error that may be
discovered in the execution, acknowledgment, filing or recordation of any Loan
Document or other document or instrument relating to any Collateral and (ii) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent may reasonably require from time
to time in order to carry out more effectively the purposes of the Loan
Documents.
(b) Concurrently with the delivery of each Compliance Certificate pursuant
to Section 6.02(b), sign and deliver to the Administrative Agent an appropriate
Intellectual Property Security Agreement with respect to all After-Acquired
Intellectual Property (as defined in the Security Agreement) owned by it as of
the last day of the period for which such Compliance Certificate is delivered,
to the extent that such After-Acquired Intellectual Property is not covered by
any previous Intellectual Property Security Agreement so signed and delivered by
it; provided that an Intellectual Property Security Agreement shall not be
required to be delivered with respect to After-Acquired Intellectual Property
except as provided in the Security Agreement. In each case, Solutions will, and
will cause each of its Subsidiaries that is a Loan Party to, promptly cooperate
as necessary to enable the Administrative Agent to make any necessary or
reasonably desirable recordations with the U.S. Copyright Office or the U.S.
Patent and Trademark Office, as appropriate.
(c) Within 10 days after the Closing Date, or such longer period as the
Administrative Agent may agree in its reasonable discretion, Solutions, to the
extent that it owns Material Real Property on the Closing Date, shall, and
Solutions shall cause each of its Restricted Subsidiaries that owns Material
Real Property on the Closing Date to, duly execute and deliver to the
Administrative Agent Mortgages granting a Lien in all Material Real Property
owned by such Person (other than real property located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) and
89
deliver an opinion addressed to the Administrative Agent and the other Secured
Parties in form and substance reasonably acceptable to the Administrative Agent,
and shall take whatever action (including the recording of Mortgages with
respect to such Material Real Property) as may be necessary in the reasonable
opinion of the Administrative Agent to vest in the Administrative Agent (or in
any representative of the Administrative Agent designated by it) valid and
subsisting Liens on the Material Real Property purported to be subject to such
Mortgages, enforceable against all third parties in accordance with their terms.
Section 6.15. Designation of Subsidiaries. The board of directors of
Holdings may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that (a) other than in the case of the designation of a Joint Venture in
existence on the Closing Date that thereafter becomes a Subsidiary (an "EXCLUDED
UNRESTRICTED SUBSIDIARY"), immediately before and after such designation, no
Default shall have occurred and be continuing, (b) other than in the case of the
designation of a Excluded Unrestricted Subsidiary, immediately after giving
effect to such designation, Holdings and its Consolidated Subsidiaries shall be
in compliance, on a Pro Forma Basis, with the covenants set forth in Section
7.11 (and, as a condition precedent to the effectiveness of any such
designation, the Borrowers shall deliver to the Administrative Agent a
certificate setting forth in reasonable detail the calculations demonstrating
such compliance), (c) no Borrower may be designated as an Unrestricted
Subsidiary, (d) no designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, other than an Excluded Unrestricted Subsidiary, shall be effective
if, immediately after such designation, (i) the aggregated Consolidated EBITDA
of the Unrestricted Subsidiaries would exceed 5% of the Consolidated EBITDA of
Holdings and its Consolidated Subsidiaries or (ii) the fair market value of the
assets of all Unrestricted Subsidiaries would exceed 5% of the aggregate fair
market value of the assets of Holdings and its Subsidiaries calculated as of
such date, in each case determined without regard to any Excluded Restricted
Subsidiary at any time after such Person becomes a Subsidiary, and (e) no
Subsidiary may be designated as an Unrestricted Subsidiary if it is a
"Restricted Subsidiary" for the purpose of any Junior Financing. The designation
of any Subsidiary as an Unrestricted Subsidiary shall constitute Investments by
the Restricted Companies therein at the date of designation in an amount equal
to the net book value (or, in the case of any guarantee or similar Investment,
the amount) of the Restricted Companies' Investments therein. If any Person
becomes a Restricted Subsidiary on any date after the Closing Date (including by
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary), the
Indebtedness of such Person outstanding on such date will be deemed to have been
incurred by such Person on such date for purposes of Section 7.03, but will not
be considered the sale or issuance of Equity Interests for purposes of Section
7.05.
Section 6.16. Interest Rate Protection. As promptly as practicable, and in
any event within 180 days after the Closing Date, the Borrowers will enter into,
and thereafter for a period of at least two years will maintain in effect, one
or more interest rate protection agreements on such terms and with such Lenders
or Affiliates of Lenders as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Borrower with respect to at least 25% of the outstanding Term Loans
and other long-term Indebtedness of the Borrowers and their Consolidated
Subsidiaries that bears interest at a floating rate, calculated as of the date
such interest rate protection was entered into.
90
ARTICLE 7
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise
provided for in full in a manner reasonably satisfactory to the L/C Issuer,
Holdings and the Borrowers shall not, nor shall they permit any of their
Restricted Subsidiaries to, directly or indirectly:
Section 7.01. Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
modifications, replacements, renewals or extensions thereof; provided that (i)
the Lien does not extend to any additional property other than (A)
after-acquired property that is affixed or incorporated into the property
covered by such Lien or financed by Indebtedness permitted under Section 7.03,
and (B) proceeds and products thereof and (ii) the modification, replacement,
renewal, extension or refinancing of the obligations secured or benefited by
such Liens (if such obligations constitute Indebtedness) is permitted by Section
7.03;
(c) Liens for taxes, assessments or governmental charges which are not
overdue for a period of more than 30 days, or, if more than 30 days overdue, (i)
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP or (ii) with
respect to which the failure to make payment could not reasonably be expected to
have a Material Adverse Effect;
(d) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen, repairmen, construction contractors or other like Liens arising in
the ordinary course of business which secure amounts not overdue for a period of
more than 30 days or, if more than 30 days overdue, (i) no action has been taken
to enforce such Lien, (ii) such Lien is being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP or (iii) with respect to which the failure to make payment as to all such
amounts, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect;
(e) (i) Liens incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, (ii) Liens incurred in the ordinary course of business securing
insurance premiums or reimbursement obligations under insurance policies or
(iii) obligations in respect of letters of credit or bank guarantees that have
been posted by a Restricted Company to support the payment of the items set
forth in clauses (i) and (ii) of this Section 7.01(e);
(f) (i) deposits to secure the performance of bids, trade contracts,
governmental contracts and leases (other than Indebtedness for borrowed money),
statutory obligations, surety,
91
stay, customs and appeal bonds, performance bonds, performance and completion
guarantees and other obligations of a like nature (including those to secure
health, safety and environmental obligations) incurred in the ordinary course of
business and (ii) obligations in respect of letters of credit or bank guarantees
that have been posted by a Borrower or any of their Restricted Subsidiaries to
support the payment of items set forth in clause (i) of this Section 7.01(f);
(g) easements, rights-of-way, restrictions, encroachments, protrusions and
other similar encumbrances and minor title defects affecting real property
which, in the aggregate, do not in any case materially and adversely interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Section 7.03(f); provided
that (i) such Liens attach concurrently with or within 270 days after the
acquisition, repair, replacement, construction or improvement (as applicable) of
the property subject to such Liens, and (ii) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness and
the proceeds and the products thereof and accessions thereto; provided that
individual financings otherwise permitted to be secured hereunder provided by
one Person (or its affiliates) may be cross collateralized to other such
financings provided by such Person (or its affiliates);
(j) (i) leases, licenses, subleases or sublicenses granted to other Persons
in the ordinary course of business which do not (A) interfere in any material
respect with the business of the Borrowers or any of their material Restricted
Subsidiaries or (B) secure any Indebtedness (other than any obligation that is
Indebtedness solely as a result of the operation of clause (e) of the definition
thereof) and (ii) the rights reserved or vested in any Person by the terms of
any lease, license, franchise, grant or permit held by any Restricted Company or
by a statutory provision to terminate any such lease, license, franchise, grant
or permit or to require periodic payments as a condition to the continuance
thereof;
(k) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods in the ordinary course of business;
(l) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection, (ii) attaching to
commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business and (iii) in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of set-off) and which
are within the general parameters customary in the banking industry;
(m) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the
seller of any property to be acquired in an Investment permitted pursuant to
Sections 7.02(h) and (k) to be applied against the purchase price for such
Investment, and (B) consisting of an agreement to Dispose of any property in a
Disposition permitted under Section 7.05, in each case, solely to the extent
such Investment or Disposition, as the case may be, would have been permitted on
the
92
date of the creation of such Lien and (ii) on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made
by a Borrower or any Restricted Subsidiary in connection with any letter of
intent or purchase agreement permitted hereunder;
(n) Liens on property of any Foreign Subsidiary securing Indebtedness of
such Foreign Subsidiary to the extent permitted under Section 7.03;
(o) Liens in favor of a Borrower or a Restricted Subsidiary securing
Indebtedness permitted under Section 7.03(e) or other obligations other than
Indebtedness owed by a Restricted Company to another Restricted Company;
(p) Liens existing on property at the time of its acquisition or existing
on the property of any Person at the time such Person becomes a Restricted
Subsidiary, in each case after the date hereof (other than Liens on the Equity
Interests of any Person that becomes a Restricted Subsidiary) and any
modifications, replacements, renewals or extensions thereof; provided that (i)
such Lien was not created in contemplation of such acquisition or such Person
becoming a Restricted Subsidiary, (ii) in the case of Liens securing purchase
money Indebtedness or Capitalized Leases, such Lien does not extend to or cover
any other assets or property (other than the proceeds or products thereof and
after-acquired property subjected to a Lien pursuant to terms existing at the
time of such acquisition, it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have
applied but for such acquisition); provided that individual financings otherwise
permitted to be secured hereunder provided by one Person (or its affiliates) may
be cross collateralized to other such financings provided by such Person (or its
affiliates), (iii) in the case of Liens securing Indebtedness other than
purchase money Indebtedness or Capitalized Leases, such Liens do not extend to
the property of any Person other than the Person acquired or formed to make such
acquisition and the subsidiaries of such Person and (iv) the Indebtedness
secured thereby (or, as applicable, any modifications, replacements, renewals or
extensions thereof) is permitted under Section 7.03;
(q) Liens arising from precautionary UCC financing statement filings (or
similar filings under applicable Law) regarding leases entered into by a
Borrower or any of its Restricted Subsidiaries in the ordinary course of
business;
(r) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for sale of goods entered into by a Borrower or any of its
Restricted Subsidiaries in the ordinary course of business not prohibited by
this Agreement;
(s) Permitted Encumbrances;
(t) other Liens securing Indebtedness or other obligations outstanding in
an aggregate principal amount not to exceed the greater of (i) 2% of Total
Consolidated Assets and (ii) $75,000,000;
(u) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Indebtedness (other than Indebtedness described in clause (e) of
the definition thereof), (ii) relating to pooled deposit
93
or sweep accounts of any Restricted Company to permit satisfaction of overdraft
or similar obligations incurred in the ordinary course of business of such
Restricted Company and (iii) relating to purchase orders and other similar
agreements entered into in the ordinary course of business;
(v) Liens consisting of pledges or deposits of cash or securities made by a
Regulated Subsidiary as a condition to obtaining or maintaining any licenses
issued to it by, or to satisfy the requirements of, any applicable Regulatory
Supervising Organization;
(w) Liens securing obligations permitted under Sections 7.03(v) and (w) to
the extent specified therein;
(x) Liens on the assets of a Securitization Vehicle securing Indebtedness
under any Securitization Financing permitted under Section 7.03(y); and
(y) Liens arising as a result of claims against a Regulated Subsidiary
under or related to insurance or insurance-related contracts entered into in the
ordinary course of business and Liens securing Indebtedness assumed by a
Regulated Subsidiary in connection with the settlement of claim losses incurred
in the ordinary course of business.
Without limitation of the foregoing, in no event shall (A) Holdings, Tax or any
Restricted Subsidiary of Tax create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired (other than Liens, if any, that may be provided in the future under the
Loan Documents), if the effect thereof is to require an additional Lien
(including on an equal and ratable basis) for the benefit of the holders of the
FNF 2011 Notes or of the FNF 2013 Notes or (B) any Restricted Company create,
incur, assume or suffer to exist any Lien upon the real property located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, securing Indebtedness for borrowed
money (other than Liens, if any, that may be provided in the future under the
Loan Documents).
Section 7.02. Investments. Make or hold any Investments, except:
(a) Investments by a Restricted Company in assets that were Cash
Equivalents when such Investment was made, and the holding of cash at any time
by a Restricted Company;
(b) loans or advances to directors, officers, members of management,
employees and consultants of a Restricted Company (i) in an aggregate amount not
to exceed $20,000,000 at any time outstanding, for business-related travel,
entertainment, relocation and analogous ordinary business purposes, and (ii) in
connection with such Person's purchase of Equity Interests of Holdings in an
aggregate amount not to exceed the amount of such Restricted Payments permitted
to be made pursuant to Section 7.06(g);
(c) Investments (i) by any Loan Party in any other Loan Party, (ii) by any
Restricted Subsidiary that is not a Loan Party in any Restricted Company, (iii)
by any Loan Party in any Regulated Subsidiary that is not a Loan Party (A) in
the ordinary course of business or (B) to consummate any transaction permitted
by this Article 7 and (iv) by any Loan Party in an
94
aggregate amount not to exceed $50,000,000 in any Restricted Subsidiary that is
not a Regulated Subsidiary and is not a Loan Party;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors and other
credits to suppliers in the ordinary course of business;
(e) Investments consisting of Liens, Indebtedness, fundamental changes,
Dispositions and Restricted Payments permitted under Section 7.01, 7.03, 7.04,
7.05 and 7.06, respectively;
(f) Investments existing or contemplated on the date hereof and set forth
on Schedule 7.02 and any modification, replacement, renewal or extension
thereof; provided that the amount of the original Investment is not increased
except by the terms of such Investment or as otherwise permitted by this Section
7.02;
(g) promissory notes and other noncash consideration received in connection
with Dispositions permitted by Section 7.05;
(h) the purchase or other acquisition of all or substantially all of the
property and assets or business of, any Person or of assets constituting a
business unit, a line of business or division of such Person, or of more than
50% of the Equity Interests in a Person that, upon the consummation thereof,
will be owned directly by a Borrower or one or more of its wholly owned
Subsidiaries (including as a result of a merger or consolidation); provided
that, with respect to each purchase or other acquisition made pursuant to this
Section 7.02(h) (each, a "PERMITTED ACQUISITION"):
(i) each applicable Loan Party and any such newly created or acquired
Subsidiary shall, or will within the times specified therein, have complied
with the requirements of Section 6.12;
(ii) other than Indebtedness incurred under this Agreement, any
Indebtedness incurred in connection with such acquisition by a Borrower or
any Restricted Subsidiary shall be Permitted Acquisition Debt or Permitted
Holdco Debt;
(iii) (A) immediately before and immediately after giving Pro Forma
Effect to any such purchase or other acquisition, no Event of Default shall
have occurred and be continuing and (B) immediately after giving effect to
such purchase or other acquisition, (1) the Borrowers shall be in Pro Forma
Compliance with all of the covenants set forth in Section 7.11 and (2) the
Senior Leverage Ratio, calculated on a Pro Forma Basis, shall not be
greater than 4.75:1.00, in each case such compliance to be determined on
the basis of the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as
though such purchase or other acquisition had been consummated as of the
first day of the fiscal period covered thereby and evidenced by a
certificate from the chief financial officer (or other equivalent officer)
of the Borrowers demonstrating such compliance calculation in reasonable
detail;
95
(iv) if the total consideration of such Permitted Acquisition exceeds
$20,000,000, the Borrowers shall have delivered to the Administrative
Agent, on behalf of the Lenders, no later than five Business Days after the
date on which any such purchase or other acquisition is consummated, a
certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this Section 7.02(h) have been satisfied or will
be satisfied on or prior to the consummation of such purchase or other
acquisition; and
(v) such purchase or other acquisition was not preceded by, or
effected pursuant to, a hostile offer;
(i) Investments (including debt obligations and Equity Interests) received
in connection with the bankruptcy or reorganization of any Person and in
settlement of obligations of, or other disputes with, any Person arising in the
ordinary course of business and upon foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;
(j) loans and advances to Holdings in lieu of, and not in excess of the
amount of (after giving effect to any other loans, advances or Restricted
Payments in respect thereof), Restricted Payments permitted to be made to
Holdings in accordance with Section 7.06;
(k) so long as immediately after giving effect to any such Investment, no
Event of Default has occurred and is continuing, other Investments that (net of
any cash repayment of or return on such Investments theretofore received) do not
exceed (i) $150,000,000 for the period after the Closing Date to and including
December 31, 2005 and (ii) $75,000,000 in any fiscal year thereafter; provided
that to the extent that the aggregate amount of Investments made by the
Restricted Companies in any fiscal year pursuant to this clause (k) is less than
the amount set forth for such fiscal year, the amount of such difference may be
carried forward and used to make Investments in the succeeding fiscal years;
provided further that the amounts set forth in clauses (i) and (ii) may be
further increased by an amount equal to the sum of (A) 50% of any Equity
Interests (other than Disqualified Equity Interests) of Holdings issued to the
seller of the Equity Interests, property or assets acquired in an Investment
permitted under Section 7.02(h) or (k) plus (B) the sum of the Net Cash Proceeds
received during such period of (1) any Permitted Holdco Debt, (2) any Permitted
Equity Issuance (other than as part of the Transaction) and (3) the incurrence
or issuance of any Permitted Subordinated Indebtedness or Permitted Senior
Indebtedness permitted by Section 7.03(a)(i) plus (C) in the case of clause
(ii), the amount of Cumulative Excess Cash Flow, but only to the extent the
amounts described in clauses (A), (B) and (C) above are in respect of
transactions occurring after the Closing Date and are Not Otherwise Applied;
(l) advances of payroll payments to employees in the ordinary course of
business;
(m) Guarantees by a Restricted Company of leases (other than Capital Lease
Obligations) entered into in the ordinary course of business;
(n) Investments in the ordinary course consisting of endorsements for
collection or deposit;
96
(o) Investments in Unrestricted Subsidiaries; provided that immediately
after giving effect to such Investment, the fair market value of the assets of
such Subsidiary, when aggregated with the fair market value of the assets of all
other Unrestricted Subsidiaries, shall not exceed 5% of the aggregate fair
market value of the assets of Holdings and its Subsidiaries calculated as of the
date any such Investment is made;
(p) Investments consisting of Swap Contracts entered into in the ordinary
course of business and not for speculative purposes;
(q) Investments in connection with the Closing Date Dividend and the
repayment of the FNF Note;
(r) Investments by a Regulated Subsidiary in the ordinary course of
business and in compliance with applicable regulatory requirements; and
(s) any Investment in a Securitization Vehicle or any Investment by a
Securitization Vehicle in any other Person in connection with a Securitization
Financing permitted by Section 7.03(y), including Investments of funds held in
accounts permitted or required by the arrangements governing the Securitization
Financing or any related Indebtedness; provided that any Investment in a
Securitization Vehicle is in the form of a purchase money note, contribution of
additional Securitization Assets or equity investments.
Section 7.03. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Permitted Subordinated Indebtedness and Permitted Senior Indebtedness
of a Loan Party (i) in an aggregate amount not to exceed $100,000,000 and (ii)
in an aggregate amount in excess of $100,000,000 solely to the extent that (A)
the Net Cash Proceeds thereof are utilized within 90 days of the incurrence
thereof to finance a Permitted Acquisition and, to the extent not so utilized,
such excess amounts are applied to prepay the Term Loans pursuant to Section
2.05(b)(iv) or (B) the Net Cash Proceeds thereof are applied to prepay the Term
Loans pursuant to Section 2.05(b)(iv) and any Permitted Refinancing of
Indebtedness described in this clause (a);
(b) Indebtedness of the Loan Parties under the Loan Documents;
(c) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
and any Permitted Refinancing thereof;
(d) Guarantees by a Restricted Company in respect of Indebtedness of a
Borrower or Restricted Subsidiary otherwise permitted hereunder; provided that
(x) no Guarantee by any Restricted Subsidiary of any Permitted Subordinated
Indebtedness (or any Permitted Refinancing thereof) shall be permitted unless
such Restricted Subsidiary shall have also provided a Guarantee of the
Obligations substantially on the terms set forth in the Subsidiary Guarantee in
accordance with Section 6.12 and (y) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination of such Indebtedness;
97
(e) Indebtedness of a Restricted Company that constitutes an Investment
permitted by Section 7.02; provided that all such Indebtedness of any Loan Party
to any Subsidiary that is not a Loan Party must be expressly subordinated to the
Obligations of such Loan Party, it being understood that such Loan Party may
make payments thereon unless an Event of Default has occurred and is continuing;
(f) Attributable Indebtedness and purchase money obligations (including
obligations in respect of mortgage, industrial revenue bond, industrial
development bond, and similar financings), in each case of a Borrower or
Restricted Subsidiary to finance the purchase, repair or improvement of fixed or
capital assets within the limitations set forth in Section 7.01(i) and any
Permitted Refinancing thereof; provided that the aggregate amount of all such
Indebtedness incurred in any fiscal year shall not exceed an amount equal to 50%
of the aggregate amount, if any, of Capital Expenditures that could be made
during such fiscal year pursuant to Section 7.17;
(g) Indebtedness of Foreign Subsidiaries in an aggregate principal amount
at any time outstanding for all such Persons taken together not exceeding the
greater of (i) 2% of Total Consolidated Assets and (ii) $75,000,000;
(h) Indebtedness of a Restricted Company assumed in connection with any
Permitted Acquisition and not incurred in contemplation thereof, and any
Permitted Refinancing thereof;
(i) Indebtedness incurred by any Restricted Company representing deferred
compensation to employees of a Borrower or Restricted Subsidiary incurred in the
ordinary course of business;
(j) Indebtedness consisting of promissory notes issued by any Restricted
Company to future, present or former directors, officers, members of management,
employees or consultants of Holdings or any of its Subsidiaries or their
respective estates, heirs, family members, spouses or former spouses to finance
the purchase or redemption of Equity Interests of Holdings permitted by Section
7.06;
(k) Indebtedness incurred by a Restricted Company in a Permitted
Acquisition or Disposition under agreements providing for indemnification, the
adjustment of the purchase price or similar adjustments;
(l) Indebtedness consisting of obligations of any Restricted Company under
deferred compensation or other similar arrangements incurred by such Person in
connection with the Transaction and Permitted Acquisitions;
(m) Cash Management Obligations and Indebtedness incurred by any Restricted
Company in respect of netting services, overdraft protections and similar
arrangements in each case in connection with cash management and deposit
accounts;
(n) Indebtedness of a Restricted Company in an aggregate principal amount
not to exceed the greater of (i) 3% of Total Consolidated Assets and (ii)
$125,000,000 at any time outstanding;
98
(o) Indebtedness consisting of (A) the financing of insurance premiums or
(B) take-or-pay obligations of a Borrower or Restricted Subsidiary contained in
supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness incurred by a Restricted Company constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to such similar
reimbursement-type obligations; provided that upon the drawing of such letters
of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;
(q) obligations in respect of performance, stay, customs, appeal and surety
bonds and performance and completion guarantees provided by a Borrower or
Restricted Subsidiary or obligations in respect of letters of credit related
thereto, in each case in the ordinary course of business or consistent with past
practice;
(r) Guarantees by Holdings of Indebtedness permitted under this Section
7.03;
(s) unsecured Indebtedness of Holdings ("PERMITTED HOLDCO DEBT") that (i)
is not subject to any Guarantee by a Borrower or any Restricted Subsidiary, (ii)
will not mature prior to the date that is 91 days after the scheduled Maturity
Date of the Term B Loans (or any later scheduled Maturity Date of any Additional
Term Loans outstanding on the date of issuance of such Indebtedness) and (iii)
has no scheduled amortization or payments of principal prior to the date that is
91 days after the scheduled Maturity Date of the Term B Loans (or any later
scheduled maturity date of any Additional Term Loans outstanding on the date of
issuance of such Indebtedness);
(t) Indebtedness in respect of Swap Contracts required by Section 6.15 or
entered into in the ordinary course of business and not for speculative
purposes;
(u) Indebtedness in respect of any bankers' acceptance supporting trade
payables, warehouse receipts or similar facilities entered into in the ordinary
course of business;
(v) Indebtedness of the Restricted Companies having a maturity of 92 days
or less representing borrowings from a bank or banks with which the Restricted
Companies have a depository relationship, which borrowings shall be fully
secured by Cash Equivalents purchased by such Restricted Company with the
proceeds of such borrowings;
(w) Indebtedness incurred in the ordinary course of business in connection
with "1031 exchange" under Section 1031 of the Code or relocation service
transactions and secured by the properties which are the subject of such
transactions;
(x) obligations consisting of Guarantees of Indebtedness of insurance
agents of a Regulated Subsidiary in an aggregate amount at any time outstanding
not to exceed $20,000,000;
99
(y) Indebtedness incurred in connection with a trade receivables
securitization transaction involving the Restricted Companies and a
Securitization Vehicle (a "SECURITIZATION FINANCING"); provided that (i) the Net
Cash Proceeds of such Indebtedness are applied to prepay either the Terms Loans
or the Revolving Credit Loans pursuant to Section 2.05(b); provided that if the
Revolving Credit Loans are prepaid with such Net Cash Proceeds, the Revolving
Credit Commitments shall be permanently reduced by the amount of such Net Cash
Proceeds, (ii) such Indebtedness when incurred shall not exceed 100% of the cost
or fair market value, whichever is lower, of the property being acquired on the
date of acquisition, (iii) such Indebtedness is created and any Lien attaches to
such property concurrently with or within forty-five (45) days of the
acquisition thereof, and (iv) such Lien does not at any time encumber any
property other than the property financed by such Indebtedness;
(z) Indebtedness pursuant to the FNF Note; provided that such note is
repaid in full by the close of business on the second Business Day after the
Closing Date;
(aa) Indebtedness (i) of the type described in clause (e) of the definition
thereof subject to Liens permitted under Section 7.01 or (ii) secured by Liens
permitted under Sections 7.01(e)(ii), (e)(iii), (f), (r) or (y); and
(bb) all premiums (if any), interest (including post-petition interest),
fees, expenses, charges and additional or contingent interest on obligations
described in clauses (a) through (aa) above;
provided that the aggregate outstanding principal or face amount of Indebtedness
of Restricted Subsidiaries that are Regulated Subsidiaries (other than Foreign
Subsidiaries) (other than Indebtedness described in clauses (b) (if applicable),
(e), (i), (k), (l), and (v) above, and Indebtedness permitted hereunder and
secured by Liens described in Section 7.01(y)) shall not exceed $5,000,000 at
any time.
Section 7.04 . Fundamental Changes. Merge, dissolve, liquidate, consolidate
with or into another Person, except that:
(a) any Restricted Subsidiary other than a Borrower may merge with or
liquidate into (i) a Borrower (including a merger, the purpose of which is to
reorganize a Borrower into a new jurisdiction so long as such Borrower remains
organized under the laws of the United States, any state thereof or the District
of Columbia and does not become a regulated entity); provided that the relevant
Borrower shall be the continuing or surviving Person or the surviving Person
shall expressly assume the obligations of such Borrower in a manner reasonably
acceptable to the Administrative Agent, or (ii) any one or more other Restricted
Subsidiaries; provided that when any such Restricted Subsidiary that is a Loan
Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be
the continuing or surviving Person or (B) to the extent constituting an
Investment, such Investment must be an Investment in or Indebtedness permitted
by Sections 7.02 and 7.03, respectively;
(b) so long as no Event of Default exists or would result therefrom, any
Borrower or any Restricted Subsidiary may merge with any other Person in order
to effect an Investment permitted pursuant to Section 7.02, the designation of a
Restricted Subsidiary as an Unrestricted
100
Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (i) if the continuing or surviving Person is a
Restricted Subsidiary, such Restricted Subsidiary shall have complied with the
requirements of Section 6.12(b), (ii) in the case of a transaction the purpose
of which is to designate a Restricted Subsidiary as an Unrestricted Subsidiary
or an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must
be consummated in compliance with Section 6.15, (iii) to the extent constituting
an Investment, such Investment must be permitted under Section 7.02 and (iv) if
a Borrower is a party thereto, such Borrower shall be the continuing or
surviving Person or the surviving Person shall expressly assume the obligations
of such Borrower in a manner reasonably acceptable to the Administrative Agent;
(c) a Borrower and/or Restricted Subsidiary may consummate a merger,
dissolution, liquidation or consolidation, the purpose of which is to effect a
Disposition permitted pursuant to Section 7.05; provided that (i) if a Borrower
is a party thereto, (A) such Borrower shall be the continuing or surviving
Person or the surviving Person shall expressly assume the obligations of such
Borrower in a manner reasonably acceptable to the Administrative Agent and (B)
such Borrower or such continuing or surviving Person shall continue to be a
direct wholly-owned Subsidiary of Holdings, (ii) such Borrower or such
continuing or surviving Person shall be organized under the laws of the United
States, any state thereof or the District of Columbia and (iii) such Borrower or
such continuing surviving Person shall not be a regulated entity; and
(d) a Borrower may merge with one of its Subsidiaries for the purpose of
effecting an Investment permitted pursuant to Section 7.02; provided that (i)
such Borrower shall be the continuing or surviving Person or the surviving
Person shall expressly assume the obligations of such Borrower in a manner
reasonably acceptable to the Administrative Agent, (ii) such Borrower or such
surviving Person shall be organized under the laws of the United States, any
state thereof or the District of Columbia and (iii) such Borrower or such
surviving Person shall not be a regulated entity and shall continue to be a
direct wholly-owned Subsidiary of Holdings.
Section 7.05. Dispositions. Make any Disposition of any of its property
except:
(a) Dispositions of obsolete, used, surplus or worn out property, whether
now owned or hereafter acquired, in the ordinary course of business and
Dispositions of property no longer used or useful in the conduct of the business
of the Borrowers and their Restricted Subsidiaries;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of such Disposition are promptly applied to the purchase
price of such replacement property;
(d) Dispositions of property by (i) a Solutions Restricted Company to
another Solutions Restricted Company, (ii) a Tax Restricted Company to another
Tax Restricted Company or to a Solutions Restricted Company or (iii) a Solutions
Restricted Company to a Tax Restricted Company (A) in the ordinary course of
business or (B) with a fair market value for all such Dispositions pursuant to
this clause (B) after the Closing Date not exceeding $75,000,000, in each case
including any such Dispositions effected pursuant to a merger, liquidation or
101
dissolution; provided that if the transferor of such property is a Guarantor or
a Borrower (x) the transferee thereof must either be a Borrower or a Guarantor
or (y) to the extent such transaction constitutes an Investment, such
transaction is permitted under Section 7.02;
(e) Dispositions permitted by Sections 7.02 and 7.04 (so long as any
Disposition pursuant to a liquidation permitted pursuant to Section 7.04 shall
be done on a pro rata basis among the equity holders of the applicable
Subsidiary) and Section 7.06 and Liens permitted by Section 7.01;
(f) Dispositions by a Borrower or Restricted Subsidiary of property
pursuant to sale-leaseback transactions; provided that (i) the fair market value
of all property so Disposed of shall not exceed $50,000,000 from and after the
Closing Date and (ii) the purchase price for such property shall be paid to such
Borrower or Restricted Subsidiary for not less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the collection
or compromise thereof;
(i) leases, subleases, licenses or sublicenses of property in the ordinary
course of business and which do not materially interfere with the business of
the Restricted Companies;
(j) transfers of property subject to Casualty Events upon receipt of the
Net Cash Proceeds of such Casualty Event;
(k) Dispositions of property by a Borrower or Restricted Subsidiary not
otherwise permitted under this Section 7.05; provided that (i) at the time of
such Disposition, no Event of Default shall exist or would result from such
Disposition, (ii) the aggregate book value of all property Disposed of in
reliance on this clause (k) shall not exceed the greater of (A) 2% of Total
Consolidated Assets and (B) $75,000,000 and (iii) the purchase price for such
property (if in excess of $15,000,000) shall be paid to such Borrower or
Restricted Subsidiary for not less than 75% cash consideration;
(l) Dispositions in the ordinary course of business consisting of the
abandonment of IP Rights which, in the reasonable good faith determination of
the Borrowers, are not material to the conduct of the business of the Restricted
Companies;
(m) Dispositions of Investments in Joint Ventures to the extent required
by, or made pursuant to buy/sell arrangements between the joint venture parties
set forth in, joint venture arrangements and similar binding arrangements (i) in
substantially the form as such arrangements are in effect on the Closing Date or
(ii) to the extent that the Net Cash Proceeds of such Disposition are applied to
prepay the Term Loans pursuant to Section 2.05(b)(ii);
(n) Dispositions by any Restricted Subsidiary of all or substantially all
of its assets (upon voluntary liquidation or otherwise) to a Borrower or to
another Restricted Subsidiary; provided that (i) if the transferor in such a
transaction is a Guarantor, then the transferee must
102
either be a Borrower or a Guarantor or (ii) to the extent constituting an
Investment, such Investment must be an Investment permitted by Section 7.02;
(o) Dispositions of real property and related assets in the ordinary course
of business in connection with relocation activities for directors, officers,
members of management, employees or consultants of the Restricted Companies;
(p) Dispositions of tangible property in the ordinary course of business as
part of a like-kind exchange under Section 1031 of the Code;
(q) Dispositions of real property and related properties as part of the
resolution or settlement of claims under any insurance or insurance related
contract entered into by a Regulated Subsidiary in the ordinary course of
business;
(r) voluntary terminations of Swap Contracts;
(s) Dispositions set forth on Schedule 7.05;
(t) Dispositions of Unrestricted Subsidiaries; and
(u) Dispositions of Securitization Assets (or a fractional undivided
interest therein) in a Securitization Financing permitted under Section 7.03(y);
provided that any Disposition of any property pursuant to this Section 7.05
(except pursuant to Sections 7.05(d), (e), (h), (l) and (n), shall be for no
less than the fair market value of such property at the time of such
Disposition. To the extent any Collateral is Disposed of as expressly permitted
by this Section 7.05 to any Person other than Solutions or any of its Restricted
Subsidiaries that is a Loan Party, such Collateral shall be sold free and clear
of the Liens created by the Loan Documents, and the Administrative Agent shall
be authorized to take any actions deemed appropriate in order to effect the
foregoing.
Section 7.06. Restricted Payments. Declare or make, directly or
indirectly, any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted Payments to the Borrower
that is its parent and to any other Restricted Company (and, in the case of a
Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) a
Borrower or another Restricted Subsidiary and (ii) each other owner of Equity
Interests of such Restricted Subsidiary based on their relative ownership
interests);
(b) any Restricted Company may declare and make dividend payments or other
distributions payable solely in the Equity Interests (other than Disqualified
Equity Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or
would result therefrom, (x) Holdings may make Restricted Payments with the
proceeds received from any Permitted Equity Issuance to the extent not required
to prepay the Term Loans pursuant to
103
Section 2.05(b) and (y) Holdings may make Restricted Payments with the proceeds
of the issuance of Permitted Holdco Debt;
(d) on the Closing Date, the Borrowers may pay the Closing Date Dividend to
Holdings, and Holdings may make the other Restricted Payments contemplated by
this Agreement to consummate the Transaction;
(e) to the extent constituting Restricted Payments, the Borrowers and their
Restricted Subsidiaries may enter into transactions expressly permitted by
Section 7.04, 7.05(e), 7.05(n) or 7.08;
(f) repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants if such Equity Interests represent a portion of the exercise
price of such options or warrants;
(g) Holdings may pay for the repurchase, retirement or other acquisition or
retirement for value of Equity Interests of Holdings held by any future, present
or former director, officer, member of management, employee or consultant of
Holdings or any of its Subsidiaries (or the estate, heirs, family members,
spouse or former spouse of any of the foregoing); provided that the aggregate
amount of Restricted Payments made under this clause (g) does not exceed in any
calendar year $15,000,000 (with unused amounts in any calendar year being
carried over to the two succeeding calendar years); and provided further that
such amount in any calendar year may be increased by an amount not to exceed (i)
the cash proceeds from the sale of Equity Interests (other than Disqualified
Equity Interests) to directors, officers, members of management, employees or
consultants of Holdings or of its Subsidiaries (or the estate, heirs, family
members, spouse or former spouse of any of the foregoing) that occurs after the
Closing Date plus (ii) the amount of any cash bonuses otherwise payable to
directors, officers, members of management, employees or consultants of Holdings
or any of its Subsidiaries in connection with the Transaction that are foregone
in return for the receipt of Equity Interests of Holdings pursuant to a deferred
compensation plan of such Person plus (iii) the cash proceeds of key man life
insurance policies received by Holdings, the Borrower or its Subsidiaries after
the Closing Date (provided that Holdings may elect to apply all or any portion
of the aggregate increase contemplated by clauses (i), (ii) and (iii) above in
any calendar year) less (iv) the amount of any Restricted Payments previously
made pursuant to clauses (i), (ii) and (iii) of this clause (g);
(h) the Borrowers and other Restricted Subsidiaries may make Restricted
Payments to Holdings:
(i) the proceeds of which shall be used by Holdings to (A) pay
operating expenses of Holdings and the other Restricted Companies incurred
in the ordinary course of business and other corporate overhead costs and
expenses (including administrative, legal, accounting and similar expenses
provided by third parties), which are reasonable and customary and incurred
in the ordinary course of business, in an aggregate amount not to exceed
$25,000,000 in any fiscal year plus any reasonable and customary
indemnification claims made by directors, officers, members of management,
employees or consultants of Holdings attributable to the ownership or
operations of the Borrowers and their Restricted Subsidiaries, (B) pay its
franchise or similar taxes and other similar
104
fees, taxes and expenses required to maintain Holdings' corporate existence
and (C) make payments required under the Shared Services Agreement;
(ii) the proceeds of which will be used by Holdings to make Restricted
Payments permitted by clause (g);
(iii) to finance any Investment permitted to be made pursuant to
Section 7.02; provided that (A) such Restricted Payment shall be made
substantially concurrently with the closing of such Investment and (B)
Holdings shall, immediately following the closing thereof, cause (1) all
property acquired (whether assets or Equity Interests) to be contributed to
a Borrower or one of their Subsidiaries or (2) the merger (to the extent
permitted in Section 7.04) of the Person formed or acquired into a Borrower
or one of their Subsidiaries in order to consummate such Permitted
Acquisition;
(iv) the proceeds of which shall be used by Holdings to pay fees and
expenses (other than to Affiliates) related to any unsuccessful equity or
debt offering permitted by this Agreement;
(v) the proceeds of which shall be used by Holdings to pay when due
(and required to be paid in cash), and in aggregate amounts equal to,
accrued and unpaid interest on Contributed Holdco Debt; provided that
before and immediately after giving effect to such payment, no Event of
Default shall exist or would result from such action and Holdings shall be
in compliance with Section 7.11(b);
(vi) the proceeds of which shall be used to make cash payments in lieu
of issuing fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Equity
Interests of a Holdings or its Restricted Subsidiaries; provided that any
such cash payment shall not be for the purpose of evading the limitations
set forth in this Section 7.06 (as determined in good faith by the board of
directors of the relevant Borrower or Restricted Subsidiary (or any
authorized committee thereof));
(vii) the proceeds of which will be used by Holdings to pay (or to
make a Restricted Payment to FNF to enable it to pay) the income tax
liability for each relevant jurisdiction in respect of the consolidated,
combined, unitary or affiliated returns filed by or on behalf of Holdings
(or FNF); provided that such proceeds are limited to the income tax
liability attributable to Holdings and its Subsidiaries;
(viii) the proceeds of which shall be used by Holdings to pay
customary salary, bonus and other benefits payable to officers and
employees of Holdings to the extent such salaries, bonuses and other
benefits are directly attributable and reasonably allocated to the
operations of the Borrowers and their Restricted Subsidiaries; and
(ix) the proceeds of which shall be used by Holdings to pay amounts
owing pursuant to the Shared Services Agreement, the Management Agreement,
tax sharing agreements, and other amounts of the type described in Section
7.08, in each case to the
105
extent the applicable payment would be permitted under Section 7.08 if such
payment were to be made by a Borrower or its Restricted Subsidiaries.
(i) so long as no Event of Default shall have occurred or be continuing or
would result therefrom, in addition to the foregoing Restricted Payments, the
Borrowers may make additional Restricted Payments to Holdings the proceeds of
which may be utilized by Holdings to make additional Restricted Payments, in an
aggregate amount not to exceed $50,000,000 (such amount to be increased to (i)
$75,000,000 if the Senior Secured Leverage Ratio as of the last day of the
immediately preceding four fiscal quarters was less than 3.75:1 and (ii)
$100,000,000 if the Senior Secured Leverage Ratio as of the last day of the
immediately preceding four fiscal quarters was less than 3.25:1); provided that
such amounts may be increased by an amount equal to 50% of Cumulative Excess
Cash Flow that is Not Otherwise Applied; and
(j) from and after a Qualifying IPO of a Qualifying IPO Issuer, such
Qualifying IPO Issuer may make the Restricted Payments permitted to be made by
Holdings under this Section 7.06.
Section 7.07. Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrowers and their Restricted Subsidiaries on the date hereof or any business
reasonably related or ancillary thereto.
Section 7.08. Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the Borrowers, whether or not in the ordinary
course of business, other than (a) transactions among the Loan Parties, (b) on
fair and reasonable terms substantially as favorable to such Borrower or
Restricted Subsidiary as would be obtainable by such Borrower or Restricted
Subsidiary at the time in a comparable arm's-length transaction with a Person
other than an Affiliate, (c) the payment of fees and expenses in connection with
the consummation of the Transaction, (d) so long as no Event of Default shall
have occurred and be continuing under Section 8.01(f), the payment of fees under
the Management Agreements as such fee provisions are set forth in the Management
Agreements as in effect on the date the Purchase Agreement transactions are
closed, (e) equity issuances by Holdings permitted under Section 7.06, (f) loans
and other transactions by Holdings, the Borrowers and their Restricted
Subsidiaries to the extent permitted under this Article 7, (g) customary fees
payable to any directors of Holdings (or after a Qualifying IPO, the Qualifying
IPO Issuer) and reimbursement of reasonable out of pocket costs of the directors
of Holdings, (h) employment and severance arrangements between any Restricted
Company and their officers and employees in the ordinary course of business, (i)
payments by any Restricted Company pursuant to the tax sharing agreements among
Holdings and its Subsidiaries on customary terms, (j) the payment of customary
fees and indemnities to directors, officers and employees of Holdings and its
Subsidiaries in the ordinary course of business, (k) transactions pursuant to
permitted agreements in existence on the Closing Date and set forth on Schedule
7.08 or any amendment thereto to the extent such an amendment is not adverse to
the Lenders in any material respect, (l) Restricted Payments permitted under
Section 7.06, (m) transactions and payments pursuant to the Shared Services
Agreements, (n) any transaction with a Securitization Vehicle as part of a
Securitization Financing permitted under Section 7.03(y) and (o) payments by any
Restricted Company to the Sponsor made for any customary financial advisory,
financing, underwriting or placement services or in respect of
106
other investment banking activities, including in connection with acquisitions
or divestitures, which payments are approved by the majority of the board of
directors of Holdings in good faith.
Section 7.09. Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that limits the ability of (a) any Restricted Subsidiary of a Borrower to make
Restricted Payments to either Borrower or any Guarantor or to otherwise transfer
property to or invest in any Borrower or any Guarantor, or (b) any Loan Party to
create, incur, assume or suffer to exist Liens on property of such Person for
the benefit of the Agents and the Lenders with respect to the credit facilities
established hereunder and the Obligations or under the Loan Documents; provided
that the foregoing shall not apply to Contractual Obligations which (i)(x) exist
on the date hereof and (to the extent not otherwise permitted by this Section
7.09) are listed on Schedule 7.09 hereto and (y) to the extent Contractual
Obligations permitted by clause (x) are set forth in an agreement evidencing
Indebtedness, are set forth in any agreement evidencing any permitted renewal,
extension or refinancing of such Indebtedness so long as such renewal, extension
or refinancing does not expand the scope of the restrictions described in
clauses (a) or (b) that are contained in such Contractual Obligation, (ii) are
binding on a Restricted Subsidiary at the time such Restricted Subsidiary first
becomes a Restricted Subsidiary, so long as such Contractual Obligations were
not entered into solely in contemplation of such Person becoming a Restricted
Subsidiary, (iii) represent Indebtedness of a Restricted Subsidiary of the
Borrower which is not a Loan Party which is permitted by Section 7.03, (iv)
arise in connection with any Disposition permitted by Section 7.05, (v) are
customary provisions in joint venture agreements and other similar agreements
applicable to Joint Ventures permitted under Section 7.02 and applicable solely
to such Joint Venture entered into in the ordinary course of business, (vi) are
negative pledges and restrictions on Liens in favor of any holder of
Indebtedness permitted under Section 7.03 but solely to the extent any negative
pledge relates to the property financed by or the subject of such Indebtedness
or expressly permits Liens for the benefit of the Agents and the Lenders with
respect to the credit facilities established hereunder and the Obligations under
the Loan Documents on a senior basis and without a requirement that such holders
of such Indebtedness be secured by such Liens equally and ratably or on a junior
basis, (vii) are customary restrictions on leases, subleases, licenses or asset
sale agreements otherwise permitted hereby so long as such restrictions may
relate to the assets subject thereto,(viii) comprise restrictions imposed by any
agreement relating to secured Indebtedness permitted pursuant to Section 7.03(f)
to the extent that such restrictions apply only to the property or assets
securing such Indebtedness, (ix) are customary provisions restricting subletting
or assignment of any lease governing a leasehold interest, or (x) are customary
provisions restricting assignment or transfer of any agreement entered into in
the ordinary course of business.
Section 7.10. Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, to purchase or carry margin stock (within the
meaning of Regulation U issued by 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, in each case in violation of Regulation U
issued by the FRB.
Section 7.11. Financial Covenants.(a) Senior Secured Leverage Ratio. Permit
the Senior Secured Leverage Ratio as of the end of any fiscal quarter of the
Borrowers and their
107
Restricted Subsidiaries (beginning with the fiscal quarter ending September 30,
2005) set forth below to be greater than the ratio set forth below opposite such
fiscal quarter:
Fiscal Year First Quarter Second Quarter Third Quarter Fourth Quarter
----------- ------------- -------------- ------------- --------------
2005 N/A N/A 5.35:1 5.35:1
2006 5.35:1 5.35:1 5.35:1 4.75:1
2007 4.75:1 4.75:1 4.75:1 4.25:1
2008 4.25:1 4.25:1 4.25:1 3.75:1
2009 3.75:1 3.75:1 3.75:1 3.25:1
2010 3.25:1 3.25:1 3.25:1 2.75:1
2011 2.75:1 2.75:1 2.75:1 2.75:1
2012 2.75:1 2.75:1 2.75:1 2.75:1
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
end of any fiscal quarter of Holdings (beginning with the fiscal quarter ending
September 30, 2005) set forth below to be less than the ratio set forth below
opposite such fiscal quarter:
Fiscal Year First Quarter Second Quarter Third Quarter Fourth Quarter
----------- ------------- -------------- ------------- --------------
2005 N/A N/A 2.75:1 2.75:1
2006 2.75:1 2.75:1 2.75:1 3.00:1
2007 3.00:1 3.00:1 3.00:1 3.25:1
2008 3.25:1 3.25:1 3.25:1 3.50:1
2009 3.50:1 3.50:1 3.50:1 3.75:1
2010 3.75:1 3.75:1 3.75:1 4.00:1
2011 4.00:1 4.00:1 4.00:1 4.25:1
2012 4.25:1 4.25:1 4.25:1 4.25:1
Section 7.12. Amendments of Organization Documents. Amend any of its
Organization Documents in a manner materially adverse to the Administrative
Agent or the Lenders.
Section 7.13. Change in Fiscal Year. Make any change in fiscal year.
Section 7.14. Prepayments, Etc. of Indebtedness. (a) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner (it being understood that payments of regularly scheduled interest
shall be permitted) any Permitted Senior Indebtedness or any Junior Financing or
make any payment in violation of any subordination terms of any Permitted
Subordinated Indebtedness, except (i) the refinancing thereof with the Net Cash
Proceeds of any Permitted Subordinated Indebtedness, Permitted Holdco Debt or
Permitted Equity Issuance or, in the case of Permitted Senior Indebtedness,
other Permitted Senior Indebtedness, Permitted Holdco Debt or Permitted Equity
Issuance, in each case to the extent not required to prepay any Loans pursuant
to Section 2.05(b), (ii) the conversion of any
108
Junior Financing or Permitted Senior Indebtedness to Equity Interests (other
than Disqualified Equity Interests) and (iii) so long as no Event of Default has
occurred and is continuing or would result therefrom, prepayments, redemptions
or repurchases of Permitted Senior Indebtedness or Junior Financing in an
aggregate amount not to exceed $50,000,000 in any fiscal year, or (b) amend,
modify or change in any manner materially adverse to the interests of the
Administrative Agent or the Lenders any term or condition of any Permitted
Senior Indebtedness or any Junior Financing Documentation without the consent of
the Administrative Agent.
Section 7.15. Activities of Holdings. In the case of Holdings, (a) conduct,
transact or otherwise engage in any business or operations other than those
incidental to its ownership of the Equity Interests of the Borrowers, the
performance of the Loan Documents, the Purchase Agreement and the other
agreements contemplated by the Purchase Agreement and any transactions that
Holdings is permitted to enter into or consummate under this Article 7, (b) make
any Investments, conduct any business or own any assets other than Equity
Interests in the Borrowers or (c) incur any Indebtedness other than Indebtedness
permitted pursuant to Section 7.03.
Section 7.16. Designated Senior Debt. Designate any other Indebtedness
(other than under this Agreement and the other Loan Documents) of the Borrower
or its Restricted Subsidiaries as "Senior Indebtedness" or "Senior Secured
Financing" (or any comparable term) under, and as defined in, any Junior
Financing Documentation.
Section 7.17. Capital Expenditures. (a) Make any Capital Expenditure except
for Capital Expenditures not exceeding, in the aggregate for the Borrowers and
their Restricted Subsidiaries during (i) the period commencing on the Closing
Date and ending on the last day of the fiscal year ending in 2005, $200,000,000
and (ii) the fiscal year ending during each year set forth below, the amount set
forth opposite such year:
YEAR AMOUNT
---- ------------
2006 $210,000,000
2007 $220,000,000
2008 $230,000,000
2009 $240,000,000
2010 $250,000,000
2011 $250,000,000
2012 $250,000,000
(b) Notwithstanding anything to the contrary contained in clause (a) above,
(i) to the extent that the aggregate amount of Capital Expenditures made by the
Restricted Companies in any fiscal year pursuant to Section 7.17(a) is less than
the amount set forth for such fiscal year, the amount of such difference (the
"ROLLOVER AMOUNT") may be carried forward and used to make Capital Expenditures
in either of the two immediately succeeding fiscal years, (ii) if the aggregate
amount of Capital Expenditures made by the Restricted Companies in any fiscal
year (in this clause (b), the "CURRENT FISCAL YEAR") is greater than the amount
permitted for such fiscal year pursuant to clause (a) above and clause (i) of
this clause (b), an amount of up to 50% of the
109
amount otherwise available for Capital Expenditures in the immediately
succeeding fiscal year pursuant to clause (a) may be reallocated to such current
fiscal year by notice thereof in the Compliance Certificate delivered for such
current fiscal year, identifying such amount carried back as the "CAPEX
CARRYBACK AMOUNT" and showing the calculation thereof in demonstrating
compliance with this Section 7.17, and (A) the amount of Capital Expenditures
permitted to be made in such current fiscal year shall be increased by such
CapEx Carryback Amount and (B) the amount of Capital Expenditures otherwise
permitted to be made in the immediately succeeding fiscal year pursuant to
clause (a) above shall be reduced by an equal amount; provided that if such
reallocation is made during any current fiscal year, no such reallocation may be
made during the immediately succeeding fiscal year and (iii) for any fiscal year
during which a Permitted Acquisition is consummated and for each fiscal year
thereafter, the amount available for Capital Expenditures otherwise permitted
shall increased by an amount equal to the amount of Capital Expenditures made by
the acquired Person or business for the 36-month period immediately preceding
such Permitted Acquisition divided by 3; provided that (A) for the fiscal year
in which such Permitted Acquisition occurs, such increased amount shall be
multiplied by a fraction equal to (1) the number of days remaining in such
fiscal year after the closing of the Permitted Acquisition divided by (2) 365
and (B) for the first full fiscal year after the closing of such Permitted
Acquisition, such increased amount shall be multiplied by 125%.
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Any of the following shall constitute an
"EVENT OF DEFAULT":
(a) Non-Payment. Any Restricted Company fails to pay (i) when due, any
amount of principal of any Loan, or (ii) within five Business Days after the
same becomes due, any interest on any Loan or any other amount payable hereunder
or with respect to any other Loan Document; or
(b) Specific Covenants. Any Restricted Company fails to perform or observe
any term, covenant or agreement contained in any of Section 6.03(a), 6.05(a)
(solely with respect to the Borrowers), 6.11 or Article 7; provided that any
Event of Default under Section 7.11 is subject to cure as contemplated by the
last proviso set forth in the definition of "Consolidated EBITDA"; or
(c) Other Defaults. Any Restricted Company fails to perform or observe any
other term, covenant or agreement (not specified in Section 8.01(a) or (b)
above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days (or, in the case of the Mortgages, such
other period specified therein) after notice thereof by the Administrative Agent
to any Borrower; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any
Restricted Company herein, in any other Loan Document, or in any document
required to be delivered in connection herewith or
110
therewith shall be incorrect or misleading in any material respect when made or
deemed made; or
(e) Cross-Default. Any Restricted Company (i) fails to make any payment
after the applicable grace period with respect thereto, if any, (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness
owed by one Restricted Company to another Restricted Company) having an
aggregate outstanding principal amount of not less than the Threshold Amount, or
(ii) fails to observe or perform any other agreement or condition relating to
any such Indebtedness, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity; provided that
this clause (e)(ii) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness, if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness; or
(f) Insolvency Proceedings, Etc. Any Restricted Company institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator, administrator, administrative receiver or similar officer for it
or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, administrator, administrative
receiver or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Restricted Company becomes
unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
60 days after its issue or levy; or
(h) Judgments. There is entered against any Restricted Company a final
judgment or order for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent not covered by independent third-party insurance
as to which the insurer has been notified of such judgment or order and does not
deny coverage) and there is a period of 60 consecutive days during which a stay
of enforcement of such judgment, by reason of a pending appeal or otherwise, is
not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in
111
an aggregate amount which could reasonably be expected to result in a Material
Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount which could reasonably be
expected to result in a Material Adverse Effect; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder (including as a result of a
transaction permitted under Section 7.04 or 7.05) or satisfaction in full of all
the Obligations, ceases to be in full force and effect; or any Restricted
Company contests in writing the validity or enforceability of any provision of
any Loan Document; or any Restricted Company denies in writing that it has any
or further liability or obligation under any Loan Document (other than as a
result of repayment in full of the Obligations and termination of the Aggregate
Commitments or as a result of a transaction permitted hereunder or thereunder
(including as a result of a transaction permitted under Section 7.04 or 7.05)),
or purports in writing to revoke or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Documents. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or Section 6.12 shall for any reason (other than
pursuant to the terms thereof including as a result of a transaction permitted
under Section 7.04 or 7.05) cease to create a valid and perfected first priority
Lien on and security interest in the Collateral covered thereby, subject to
Liens permitted under Section 7.01, or any Loan Party shall assert in writing
such invalidity or lack of perfection or priority (other than in an
informational notice delivered to the Administrative Agent), except to the
extent that any such loss of perfection or priority results from the failure of
the Administrative Agent to maintain possession of certificates or other
possessory collateral actually delivered to it representing securities or other
collateral pledged under the Collateral Documents or to file Uniform Commercial
Code financing statements, continuation statements or equivalent filings and
except, as to Collateral consisting of real property to the extent that such
losses are covered by a lender's title insurance policy insured by a solvent
insurer and such insurer has not denied or disclaimed in writing that such
losses are covered by such title insurance policy; or
(m) Junior Financing Documentation. (i) Any of the Obligations of the Loan
Parties under the Loan Documents for any reason shall cease to be "Senior
Indebtedness" (or any comparable term) or "Senior Secured Financing" (or any
comparable term) under, and as defined in, any Junior Financing Documentation
governing Permitted Subordinated Indebtedness in an aggregate principal amount
in excess of the Threshold Amount or (ii) the subordination provisions set forth
in any Junior Financing Documentation governing Permitted Subordinated
Indebtedness in an aggregate principal amount in excess of the Threshold Amount
shall, in whole or in part, cease to be effective or cease to be legally valid,
binding and enforceable against the holders of any Junior Financing, if
applicable (it being understood that such Junior Financing may no longer be
Permitted Subordinated Indebtedness hereunder).
112
Section 8.02. Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the Commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
Commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower;
(c) require that each Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for
relief with respect to any Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of the
L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of each Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
Section 8.03. Application of Funds. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Secured Obligations shall be applied by the
Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs
payable under Section 11.04 and amounts payable under Article 3 but
excluding principal of, and interest on, any Loan) payable to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs payable under Section
11.05 and amounts payable under Article 3), ratably among them in
proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this
clause Third payable to them;
113
Fourth, to payment of (i) that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, (ii) Secured Hedging
Obligations and (iii) the Cash Management Obligations, ratably among the
Lenders and/or other holders thereof in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit;
Sixth, to the payment of all other Obligations of the Loan Parties
that are due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate amounts
of all such Obligations owing to the Administrative Agent and the other
Secured Parties on such date; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by
Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above and, if no
Obligations remain outstanding, delivered to the Borrowers.
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of Agents. (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 Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to any Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Each L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and each
L/C Issuer shall have all of
114
the benefits and immunities (i) provided to the Agents in this Article 9 with
respect to any acts taken or omissions suffered by each L/C Issuer 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 "Agent" as used in this Article 9 and in the
definition of "Agent-Related Person" included such L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to
such L/C Issuer.
(c) The Administrative Agent shall also act as the "collateral agent" under
the Loan Documents, and each of the Lenders (in its capacities as a Lender,
Swing Line Lender (if applicable), L/C Issuer (if applicable) and a potential
Hedge Bank) hereby irrevocably appoints and authorizes the Administrative Agent
to act as the agent of (and to hold any security interest created by the
Collateral Documents for and on behalf of or on trust for) such Lender for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Secured Obligations,
together with such powers and discretion as are reasonably incidental thereto.
In this connection, the Administrative Agent, as "collateral agent" (and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative
Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on
the Collateral (or any portion thereof) granted under the Collateral Documents,
or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of
this Article 9 (including Section 9.07, as though such co-agents, sub-agents and
attorneys-in-fact were the "collateral agent" under the Loan Documents) as if
set forth in full herein with respect thereto.
Section 9.02. Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights and
remedies thereunder) by or through agents, employees or attorneys-in-fact, such
sub-agents as shall be deemed necessary by the Administrative Agent 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 sub-agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any of their Subsidiaries
or any officer thereof, contained herein or in any other Loan Document, or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or the perfection or priority of any Lien or security interest created
or purported to be created under the Collateral Documents, or for any failure of
any Fidelity Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to
115
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party or any of their Subsidiaries
or any Affiliate thereof.
Section 9.04. Reliance by Agents. (a) Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party or any of their Subsidiaries), independent accountants and
other experts selected by such Agent. Each Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 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 a Loan
Party referring to this Agreement, describing such Default and stating that such
notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to any Event of Default as may be directed by the
Required Lenders in accordance with Article 8; provided that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default as it shall deem
advisable or in the best interest of the Lenders.
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 any Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party or any of their Subsidiaries 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
116
information in their possession. Each Lender represents to each 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 each Fidelity
Company, 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 hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of each Loan Party or any of their Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by any Agent herein, such 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 Loan Party or any of their Subsidiaries
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
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person's own gross negligence or
willful misconduct; provided that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07; provided
further that to the extent an L/C Issuer is entitled to indemnification under
this Section 9.07 solely in connection with its role as an L/C Issuer, only the
Revolving Credit Lenders shall be required to indemnify such L/C Issuer in
accordance with this Section 9.07. In the case of any investigation, litigation
or proceeding giving rise to any 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 the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section 9.07 shall survive termination of the
Aggregate Commitments, the payment of all other Obligations and the resignation
of the Administrative Agent.
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
117
Interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each Loan Party or any of their
Subsidiaries as though Bank of America were not the Administrative Agent or the
L/C Issuer hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Loan Party or any of their
Subsidiaries (including information that may be subject to confidentiality
obligations in favor of such Loan Party or any of their Subsidiaries) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent or the L/C Issuer, 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 the
Administrative Agent upon 30 days' notice to the Lenders and the Borrowers. If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be consented to by the Borrowers at all times other than
during the existence of an Event of Default under Section 8.01(f) (which consent
of the Borrowers shall not be unreasonably withheld or delayed). If no successor
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 each Borrower, a successor agent from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, the Person
acting as such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent,"
shall mean such successor administrative agent and/or supplemental
administrative agent, as the case may be, and the retiring Administrative
Agent's appointment, powers and duties as the Administrative Agent shall be
terminated. After the retiring Administrative Agent's resignation hereunder as
the Administrative Agent, the provisions of this Article 9 and Section 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent under this Agreement. If no
successor agent has accepted appointment as the Administrative Agent by the date
which is 30 days following the 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; provided that in the
case of any Collateral held by the Administrative Agent on behalf of the Lenders
or an L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such Collateral until such time as a successor
Administrative Agent is appointed. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, the Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After the retiring Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this
118
Article 9 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent.
Section 9.10. Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Section 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender 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 Agents
and their respective agents and counsel, and any other amounts due the
Administrative Agent under Section 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
Section 9.11. Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent:
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than (x)
obligations under Secured Hedge Agreements, (y) Cash Management Obligations not
yet due and payable and (z) contingent indemnification obligations not yet
accrued and payable) and the expiration or termination of all Letters of Credit
(or provision therefor in full in a manner reasonably satisfactory to each L/C
Issuer), (ii) that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other
119
Loan Document to any Person other than a Loan Party, (iii) subject to Section
11.01, if approved, authorized or ratified in writing by the Required Lenders,
or (iv) owned by a Guarantor upon release of such Guarantor from its obligations
under its Guaranty pursuant to clause (c) below;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇),
(▇), (▇), (▇), (s), (u), (w) and (x); and
(c) to release any Guarantor from its obligations under any Loan Document
to which it is a party if such Person ceases to be a Restricted Subsidiary as a
result of a transaction or designation permitted hereunder; provided that no
such release shall occur if such Guarantor continues to be a guarantor in
respect of any Junior Financing unless and until such Guarantor is (or is being
simultaneously) released from its guarantee with respect to such Junior
Financing.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Loan Documents pursuant to this Section 9.11. In
each case as specified in this Section 9.11, the Administrative Agent will, at
the Borrowers' expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents, or to release such Guarantor from its obligations
under the Loan Documents, in each case in accordance with the terms of the Loan
Documents and this Section 9.11.
Section 9.12. Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page and/or signature pages of this
Agreement as a "co-syndication agent," "co-documentation agent," "joint
book-running manager," "arranger," or "co-lead arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders or other Persons so identified shall have or be deemed to
have any fiduciary relationship with any Lender. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
Section 9.13. Appointment of Supplemental Administrative Agents. (a) It is
the purpose of this Agreement and the other Loan Documents that there shall be
no violation of any Law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Administrative Agent
deems that by reason of any present or future Law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, the Administrative Agent is hereby authorized
to appoint an additional individual or institution selected by the
Administrative Agent in its sole discretion as a separate trustee, co-trustee,
administrative agent, collateral agent, administrative sub-agent or
administrative co-agent (any such additional
120
individual or institution being referred to herein individually as a
"SUPPLEMENTAL ADMINISTRATIVE AGENT" and collectively as "SUPPLEMENTAL
ADMINISTRATIVE AGENTS").
(b) In the event that the Administrative Agent appoints a Supplemental
Administrative Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Administrative Agent to the extent, and only to the
extent, necessary to enable such Supplemental Administrative Agent to exercise
such rights, powers and privileges with respect to such Collateral and to
perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary to the exercise or
performance thereof by such Supplemental Administrative Agent shall run to and
be enforceable by either the Administrative Agent or such Supplemental
Administrative Agent, and (ii) the provisions of this Article 9 and of Section
9.07 (obligating the Borrower to pay the Administrative Agent's expenses and to
indemnify the Administrative Agent) that refer to the Administrative Agent shall
inure to the benefit of such Supplemental Administrative Agent and all
references therein to the Administrative Agent shall be deemed to be references
to the Administrative Agent and/or such Supplemental Administrative Agent, as
the context may require.
(c) Should any instrument in writing from any Loan Party be required by any
Supplemental Administrative Agent so appointed by the Administrative Agent for
more fully and certainly vesting in and confirming to him or it such rights,
powers, privileges and duties, the Borrowers or Holdings, as applicable, shall,
or shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative Agent. In case any
Supplemental Administrative Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Administrative Agent, to the extent permitted by
Law, shall vest in and be exercised by the Administrative Agent until the
appointment of a new Supplemental Administrative Agent.
ARTICLE 10
GUARANTY
Section 10.01. Guaranty. Holdings and each Borrower hereby guarantees the
punctual payment when due, whether at scheduled maturity or by acceleration,
demand or otherwise, of all Obligations of (a) in the case of Holdings, each
Borrower and (b) in the case of each Borrower, the other Borrower, in each case
now or hereafter existing (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, fees, indemnities, contract causes of action,
costs, expenses or otherwise (Holdings and each Borrower in its capacity as
guarantor under this Article 10, a "GUARANTOR PARTY", and such Obligations, for
any Guarantor Party, its "GUARANTEED OBLIGATIONS"). Without limiting the
generality of the foregoing, the liability of each Guarantor Party shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by
121
any other Loan Party to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
Section 10.02. Contribution. Subject to Section 10.03, each Guarantor Party
hereby unconditionally agrees that in the event any payment shall be required to
be made to any Secured Party under this Article 10 or the Subsidiary Guaranty or
any other guaranty, such Guarantor Party in its capacity as such will
contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor so as to maximize the aggregate amount paid to the Secured Parties
under or in respect of the Loan Documents.
Section 10.03. Guaranty Absolute. Each Guarantor Party guarantees that its
Guaranteed Obligations will be paid in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Secured
Party with respect thereto. The Obligations of each Guarantor Party under or in
respect of this Article 10 are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor Party to enforce this Article 10, irrespective of whether
any action is brought against any Borrower or any other Loan Party or whether
any Borrower or any other Loan Party is joined in any such action or actions.
The liability of each Guarantor Party under this Article 10 shall be
irrevocable, absolute and unconditional, and each Guarantor Party hereby
irrevocably waives any defenses (other than payment in full of the Guaranteed
Obligations) it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of its Guaranteed Obligations or any other Obligations of
any other Loan Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in its Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any of
its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or
any other collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of its Guaranteed
Obligations;
(d) any manner of application of Collateral or any other collateral, or
proceeds thereof, to all or any of its Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral or any other collateral for all or
any of its Guaranteed Obligations or any other Obligations of any Loan Party
under the Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;
122
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Secured Party (each Guarantor Party waiving any duty on
the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any other
guarantor or surety with respect to its Guaranteed Obligations; or
(h) any other circumstance or any existence of or reliance on any
representation by any Secured Party that might otherwise constitute a defense
available to, or a discharge of, any Loan Party or any other guarantor or surety
other than satisfaction in full of the Obligations.
This Article 10 shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of such Guarantor Party's Guaranteed
Obligations is rescinded or must otherwise be returned by any Secured Party or
any other Person upon the insolvency, bankruptcy or reorganization of any
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
Section 10.04. Waiver And Acknowledgments. (a) Each Guarantor Party hereby
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of its Guaranteed Obligations
and this Article 10 (other than any notice expressly required by the Loan
Documents) and any requirement that any Secured Party protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right or take
any action against any Loan Party or any other Person or any Collateral.
(b) Each Guarantor Party hereby unconditionally and irrevocably waives any
right to revoke this Article 10 and acknowledges that this Article 10 is
continuing in nature and applies to all of its Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor Party hereby unconditionally and irrevocably waives any
defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor Party or other rights
of such Guarantor Party to proceed against any of the other Loan Parties, any
other guarantor or any other Person or any Collateral and any defense based on
any right of set-off or counterclaim against or in respect of the Obligations of
such Guarantor Party under this Article 10.
(d) Each Guarantor Party acknowledges that the Administrative Agent may, in
accordance with the Loan Documents, without notice to or demand upon such
Guarantor Party and without affecting the liability of such Guarantor Party
under this Article 10, to the extent permitted by applicable Law, foreclose
under any mortgage by nonjudicial sale, and each Guarantor Party hereby waives
any defense to the recovery by the Administrative Agent and the
123
other Secured Parties against such Guarantor Party of any deficiency after such
nonjudicial sale and any defense or benefits that may be afforded by applicable
law.
(e) Each Guarantor Party hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor Party any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such Secured Party.
(f) Each Guarantor Party acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Article 10 are knowingly
made in contemplation of such benefits.
Section 10.05. Subrogation. Each Guarantor Party hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any other Loan Party (including, in the case of each Borrower
and Guarantor Party, the other Borrower) or any other insider guarantor that
arise from the existence, payment, performance or enforcement of such Guarantor
Party's Obligations under or in respect any Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Secured Party against any other Loan Party or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of such Guarantor Party's Guaranteed Obligations and all other
amounts payable under this Article 10 shall have been paid in full in cash, all
Letters of Credit shall have expired or been terminated or otherwise provided
for in full in a manner reasonably satisfactory to the L/C Issuer and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor Party in violation of the immediately preceding sentence at any
time prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Article 10, (b) the
Maturity Date and (c) the latest date of expiration or termination of all
Letters of Credit or other provision therefor in full in a manner reasonably
satisfactory to the L/C Issuer, such amount shall be received and held in trust
for the benefit of the Secured Parties, shall be segregated from other property
and funds of such Guarantor Party and shall forthwith be paid or delivered to
the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to such Guarantor Party's
Guaranteed Obligations and all other amounts payable by it under this Article
10, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any of such Guarantor Party's
Guaranteed Obligations or other amounts payable by it under this Article 10
thereafter arising. If (i) all of the Guaranteed
Obligations and all other amounts payable under this Article 10 shall have been
paid in full in cash, (ii) the Maturity Date shall have
occurred and (iii) all Letters of Credit shall have
expired or been terminated or other provision therefor in full shall have been
made in a manner reasonably satisfactory to the L/C Issuer, the Secured Parties
will, at any Guarantor Party's request and expense, execute and deliver to such
Guarantor Party appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor
124
Party of an interest in the Guaranteed Obligations resulting from such payment
made by such Guarantor Party pursuant to this Article 10.
Section 10.06. Payment Free And Clear Of Taxes. Any and all payments by any
Guarantor Party under this Article 10 shall be made in accordance with the
provisions of this Agreement, including the provisions of Section 3.01 (and such
Guarantor Party shall make such payments of Taxes or Other Taxes to the extent
described in Section 3.01), as though such payments were made by a Borrower.
Section 10.07. No Waiver; Remedies. No failure on the part of any Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 10.08. Right Of Set-Off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 8.02 to authorize the
Administrative Agent to declare the Loans due and payable pursuant to the
provisions of said Section 8.02, the Administrative Agent and, after obtaining
the prior written consent of the Administrative Agent, each other Agent and each
Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, but not any deposits held in a custodial, trust or other fiduciary
capacity) at any time held and other indebtedness at any time owing by such
Agent, such Lender or such Affiliate to or for the credit or the account of any
Guarantor Party against any and all of the Obligations of such Guarantor Party
now or hereafter existing under any Loan Document, irrespective of whether such
Agent or such Lender shall have made any demand under any Loan Document and
although such Obligations may be unmatured. Each Agent and each Lender agrees
promptly to notify such Guarantor Party after any such set-off and application;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Agent and each Lender and their
respective Affiliates under this Section 10.08 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender and their respective Affiliates may have.
Section 10.09. Continuing Guaranty; Assignments under the Credit Agreement.
This Article 10 is a continuing guaranty and shall (a) remain in full force and
effect until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Article 10, (ii) the
Maturity Date and (iii) the latest date of expiration or termination of all
Letters of Credit or other provision therefor in full in a manner reasonably
satisfactory to the L/C Issuer, (b) be binding upon each Guarantor Party, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Secured Parties and their permitted successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, any
Secured Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitments, the Loans owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section
125
11.07. No Guarantor Party shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all Lenders.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc. (a) No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent to any departure by
any Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower or the applicable Loan Party, as the case may
be, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that:
(i) no amendment, waiver or consent shall, without the written consent
of each Lender directly affected thereby:
(A) extend or increase the Commitment of any Lender (it being
understood that a waiver of any condition precedent set forth in
Section 4.01 or 4.02 or the waiver of any Default, Event of Default,
mandatory prepayment or mandatory reduction of the Commitments shall
not constitute an extension or increase of any Commitment of any
Lender);
(B) postpone any date scheduled for any payment of principal or
interest under Section 2.07 or 2.08 or fees under Section 2.03(i) or
2.09(a), it being understood that the waiver of any mandatory
prepayment of the Term Loans shall not constitute a postponement of
any date scheduled for the payment of principal or interest;
(C) reduce or forgive the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause
(iii) of the second proviso to this Section 11.01) any fees or other
amounts payable hereunder or under any other Loan Document, it being
understood that any change to the definition of Senior Secured
Leverage Ratio or in the component definitions thereof shall not
constitute a reduction in the rate of interest; provided that only the
consent of the Required Lenders shall be necessary to amend the
definition of "Default Rate" or to waive any obligation of any
Borrower to pay interest at the Default Rate; or
(D) change Section 2.13 or 8.03 in any manner that would alter
the pro rata sharing of payments required thereby; and
(ii) no amendment, waiver or consent shall, without the written
consent of each Lender:
(A) change any provision of this Section 11.01 or the definition
of "Required Lenders";
126
(B) release all or substantially all of the Collateral in any
transaction or series of related transactions; or
(C) release all or substantially all of the value of the
Guaranty;
provided further that:
(i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuer in addition to the Lenders required above, affect
the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be
issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement;
(iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of, or any fees or other amounts payable
to, the Administrative Agent under this Agreement or any other Loan
Document;
(iv) Section 11.07(i) may not be amended, waived or otherwise modified
without the consent of each Granting Lender all or any part of whose Loans
are being funded by an SPC at the time of such amendment, waiver or other
modification;
(v) no amendment, waiver or consent shall alter the allocation of
payments set forth in Section 2.05(b)(v) between the Term Loans without the
consent of Lenders having more than 50% of the outstanding principal amount
of each Class of Term Loans affected thereby, voting as separate Classes;
and
(vi) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto.
(b) 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 (it being understood that any
Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded from a vote of the Lenders hereunder requiring any consent of the
Lenders).
(c) Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrowers (i) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the Revolving Facility Loans
and the accrued interest and
127
fees in respect thereof and (ii) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders.
(d) Notwithstanding anything to the contrary contained herein, in order to
implement any Additional Term Loan Tranche in accordance with Section 2.14, this
Agreement may be amended for such purpose (but solely to the extent necessary to
add such Additional Term Loan Tranche in accordance with Section 2.14) by the
Borrowers, the Administrative Agent and the relevant Lenders providing such
Additional Term Loan Tranche.
(e) In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, Holdings, each
Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Term A Loans or Term
B Loans ("REFINANCED TERM LOANS") with a replacement term loan tranche hereunder
("REPLACEMENT TERM LOANS"); provided that (i) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (ii) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (iii) the weighted average life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (iv) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.
(f) Notwithstanding anything to the contrary contained in this Section
11.01, in the event that any Borrower requests that this Agreement be modified
or amended in a manner that would require the unanimous consent of all of the
Lenders and such modification or amendment is agreed to by the Required Lenders,
then with the consent of each Borrower and the Required Lenders, each Borrower
and the Required Lenders shall be permitted to amend the Agreement without the
consent of the Lender or Lenders that did not agree to the modification or
amendment requested by the Borrower (such Lender or Lenders, collectively the
"MINORITY LENDERS") to provide for (i) the termination of the Commitment of each
of the Minority Lenders, (ii) the addition to this Agreement of one or more
other financial institutions (each of which shall be an Eligible Assignee), or
an increase in the Commitment of one or more of the Required Lenders (with the
written consent thereof), so that the total Commitment after giving effect to
such amendment shall be in the same amount as the total Commitment immediately
before giving effect to such amendment, (iii) if any Loans are outstanding at
the time of such amendment, the making of such additional Loans by such new
financial institutions or Required Lender or Lenders, as the case may be, as may
be necessary to repay in full, at par, the outstanding Loans of the Minority
Lenders immediately before giving effect to such amendment and (iv) such other
modifications to this Agreement as may be appropriate to effect the foregoing
clauses (i), (ii) and (iii).
Section 11.02. Notices and Other Communications; Facsimile Copies. (a)
Generally. Unless otherwise expressly provided herein, all notices and other
communications provided for under any Loan Document shall be in writing
(including by facsimile transmission and, except as
128
otherwise specifically provided herein, electronic mail). All such written
notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to Section 11.02(c)) 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 any Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 11.02 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; 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 L/C Issuer and the
Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier of (i) actual receipt by the relevant party and (ii) (A) if
delivered by hand or by courier, when signed for by or on behalf of the relevant
party; (B) if delivered by mail, four Business Days after deposit in the mails,
postage prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail, when delivered;
provided that notices and other communications to the Administrative Agent, the
L/C Issuer and the Swing Line Lender pursuant to Article 2 shall not be
effective until actually received by such Person. In no event shall a voice mail
message be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile or other electronic means. 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 each Loan Party, each Agent and each Lender. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually signed original thereof; provided that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or
signature.
(c) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including electronic mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article 2 if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrowers
may, in their 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.
129
(d) Reliance by Agents and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Such 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 such Borrower in the absence of gross
negligence or willful misconduct.
Section 11.03. No Waiver; Cumulative Remedies. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under each Loan
Document are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law.
Section 11.04. Attorney Costs, Expenses and Taxes. Each Borrower agrees (a)
to pay or reimburse the Administrative Agent for all reasonable out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation,
syndication and execution of this Agreement and the other Loan Documents, and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, and (b) to pay or reimburse the Administrative Agent and each Lender
for all reasonable out-of-pocket costs and expenses incurred in connection with
the enforcement of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all
Attorney Costs of counsel to the Administrative Agent. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other reasonable
out-of-pocket expenses incurred by any Agent. All amounts due under this Section
11.04 shall be paid promptly after receipt by the Borrowers of an invoice in
reasonable detail. The agreements in this Section 11.04 shall survive the
termination of the Aggregate Commitments and repayment of all other Obligations.
If any Loan Party fails to pay when due any costs, expenses or other amounts
payable by it hereunder or under any Loan Document, such amount may be paid on
behalf of such Loan Party by the Administrative Agent or any Lender, in its sole
discretion.
Section 11.05. Indemnification by the Borrowers. Whether or not the
transactions contemplated hereby are consummated, the Borrowers shall jointly
and severally indemnify and hold harmless each Agent, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents,
attorneys-in-fact, trustees and advisors (collectively the "INDEMNITEES") from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs (which shall be limited to one counsel to the
Administrative Agent and the
130
Lenders (exclusive of one local counsel to the Administrative Agent and the
Lenders in each relevant jurisdiction), unless (x) the interests of the
Administrative Agent and the Lenders are sufficiently divergent, in which case
one additional counsel may be appointed and (y) if the interests of any Lender
or group of Lenders (other than all of the Lenders) are distinctly or
disproportionately affected, one additional counsel for such Lender or group of
Lenders in the case of clause (a) below)) of any kind or nature whatsoever 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:
(a) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby;
(b) any Commitment, Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit); or
(c) any actual or alleged presence or release of Hazardous Materials on or
from any property currently or formerly owned or operated by any Restricted
Company or any of their Subsidiaries, or any Environmental Liability related in
any way to any Restricted Company or any of their Subsidiaries; or
(d) 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;
(all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements (x) have resulted from the gross negligence or willful misconduct
of such Indemnitee or breach of the Loan Documents by such Indemnitee or (y)
arise from claims of any of the Lenders solely against one or more Lenders that
have not resulted from any misrepresentation, default or the breach of any Loan
Document or any actual or alleged performance or non-performance by a Borrower
or one of its Subsidiaries or other Affiliates or any of their respective
officers, directors, stockholders, partners, members, employees, agents,
representatives or advisors. 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 or any Loan Party have
any liability for any special, punitive, indirect or consequential damages
relating to this Agreement or any other Loan 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 other proceeding
to which the indemnity in this Section 11.05 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
131
brought by any Loan Party, its directors, shareholders or creditors 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 Loan Documents is consummated. All amounts due under
this Section 11.05 shall be paid promptly after receipt by the Borrowers of an
invoice in reasonable detail. The agreements in this Section 11.05 shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
Section 11.06. Payments Set Aside. To the extent that any payment by or on
behalf of any Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such setoff had not occurred,
and
(b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by any
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the applicable Federal Funds Rate
from time to time in effect.
Section 11.07. Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby. 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 Section 11.07(f) 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) Notwithstanding Section 11.07(a), neither Holdings nor any Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender.
(c) Notwithstanding Section 11.07(a), no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section 11.07(d), (ii) by way of
participation in accordance with the provisions of Section 11.07(f), (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of Section 11.07(h) and Section 11.07(j) or (iv) to an SPC in accordance with
the provisions of Section 11.07(i) (and any other attempted assignment or
transfer by any party hereto shall be null and void).
132
(d) Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement; provided that
(i) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing to it
or, in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the outstanding principal balance of the
Loan 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 $5,000,000, in the case of any assignment in respect of the Revolving
Credit Facility, or $1,000,000, in the case of any assignment in respect of
any Term Loans, unless each of the Administrative Agent and, so long as no
Event of Default in respect of Section 8.01(a) or (f) has occurred and is
continuing and except for assignments in connection with the primary
syndication of the Facilities, the Borrowers otherwise consent (each such
consent not to be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not (x) apply to rights in respect of
Swing Line Loans or (y) prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Facilities on a non-pro rata
basis;
(iii) any assignment of a Revolving Credit Commitment must be approved
by the Borrowers (in accordance with Section 11.07(d)(i)), the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the
Person that is the proposed assignee is itself a Revolving Credit Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee);
(iv) the parties (other than the Borrower unless its consent to such
assignment is required hereunder) to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption (and, to
the extent that any such Assignment and Assumption is to be cleared through
an electronic clearing system, the Administrative Agent currently intends,
based on circumstances existing on the date hereof, to use the ClearPar
Settlement System, to the extent practicable and consistent with then
current practice), together with a processing and recordation fee of
$2,500; provided that in the event of two or more concurrent assignments to
an Assignee Group or two or more concurrent assignments by members of the
same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be
$2,500 plus, for each additional assignment after the first four concurrent
assignments, $500 (which fee (x) no Borrower shall have any obligation to
pay except as required in Section 3.09 and (y) may be waived by the
Administrative Agent in its discretion); and
133
(v) the assigning Lender shall deliver any Notes evidencing such Loans
to the Borrowers or the Administrative Agent (and the Administrative Agent
shall deliver such Notes to the Borrowers). Subject to acceptance and
recording thereof by the Administrative Agent pursuant to Section 11.07(e),
from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Section 3.01, 3.04, 3.07,
11.04 and 11.05 with respect to facts and circumstances occurring prior to
the effective date of such assignment). Upon request, and the surrender by
the assigning Lender of its Note, 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 clause (d) 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 11.07(f).
(e) The Administrative Agent, acting solely for this purpose as an agent of
each 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 (and related interest amounts) of the Loans, L/C
Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts
due under Section 2.03 owing to each Lender pursuant to the terms hereof from
time to time (the "REGISTER"). The entries in the Register shall be conclusive,
absent manifest error, and each Borrower, each Agent and each Lender shall 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 any Borrower,
any Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(f) Any Lender may at any time, without the consent of, or notice to, any
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement; 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) each Borrower, each Agent and each
other Lender 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 the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or the other Loan
Documents; 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 Section
134
11.01(a)(i) that directly affects such Participant. Subject to Section 11.07(g),
each Participant shall be entitled to the benefits of Section 3.01, and Sections
3.04 through 3.07 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 11.07(d). To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.10 as
though it were a Lender; provided that such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(g) A Participant shall not be entitled to receive any greater payment
under Section 3.01 and Sections 3.04 through 3.07 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 each Borrower's prior written consent and such Participant complies
with Section 11.16 as if such Participant were a Lender under Section 11.16. A
Participant shall not be entitled to the benefits of Section 3.01 unless each
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of each Borrower, to comply with Section
11.16 as though it were a Lender.
(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement under its Note, if any to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein:
(i) any Lender (a "GRANTING LENDER") may grant to a special
purpose funding vehicle (an "SPC") identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and
each Borrower the option to provide all or any part of any Loan that
such Granting Lender would otherwise be obligated to make pursuant to
this Agreement; provided that
(A) nothing herein shall constitute a commitment by any SPC
to fund any Loan, and
(B) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof.
(ii) (A) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise
increase or change the obligations of any Borrower under this
Agreement (including its obligations under Section 3.01 or 3.04
through 3.07), (B) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be
liable, and (C) the Granting Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender.
135
(iii) any SPC may (A) with notice to, but without prior consent
of any Borrower or the Administrative Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and
(B) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or
liquidity enhancement to such SPC.
(j) 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 11.07,
(i) no such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents, (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise (unless such trustee is an Eligible Assignee which has
complied with the requirements of Section 11.07(d)).
Section 11.08. Successors. Notwithstanding anything to the contrary
contained herein, Bank of America may, upon 30 days' notice to the Borrowers and
the Lenders, resign as L/C Issuer and/or Swing Line Lender; provided that on or
prior to the expiration of such 30-day period with respect to Bank of America's
resignation as L/C Issuer, Bank of America shall have identified a successor L/C
Issuer reasonably acceptable to the Borrower willing to accept its appointment
as successor L/C Issuer. In the event of any such resignation as L/C Issuer or
Swing Line Lender, the Borrowers shall be entitled to appoint a successor L/C
Issuer or Swing Line Lender from among the Lenders willing to accept such
appointment; provided that a failure by the Borrowers to appoint any such
successor shall not affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be, except as provided above. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of
the L/C Issuer with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender with respect to Swing Line Loans made by it
and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Loans or fund risk participations
in outstanding Swing Line Loans pursuant to Section 2.04(c).
Section 11.09. Confidentiality. Each Agent and each Lender agrees to
maintain the confidentiality of the Information, except that the Information may
be disclosed (a) to its directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and who have agreed or are otherwise obligated to
keep such Information confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; provided that the Agent
or Lender that discloses any Information pursuant to this clause (c) shall
136
provide the Borrower prompt notice of such disclosure; (d) to any other party to
this Agreement; (e) subject to an agreement containing provisions substantially
the same as those of this Section 11.09 (or as may otherwise be reasonably
acceptable to each Borrower), to any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement; (f) with the written consent of any Borrower;
(g) to the extent such Information becomes publicly available other than as a
result of a breach of this Section 11.09; (h) to any state, Federal or foreign
authority or examiner (including the National Association of Insurance
Commissioners or any other similar organization) regulating any Lender; or (i)
to any rating agency when required by it (it being understood that, prior to any
such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Information relating to the Loan Parties received by it
from such Lender). In addition, any Agent and any Lender may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to any Agent and any Lender in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions. For the purposes of this Section 11.09, "INFORMATION" means
all information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is publicly available to any
Agent or any Lender prior to disclosure by any Loan Party other than as a result
of a breach of this Section 11.09.
Section 11.10. Set-off. In addition to any rights and remedies of each
Lender provided by Law, upon the occurrence and during the continuance of any
Event of Default, after obtaining the prior written consent of the
Administrative Agent, each Lender is authorized at any time and from time to
time, without prior notice to any Loan Party, any such notice being waived by
each Borrower (on its own behalf and on behalf of each other Loan Party) to the
fullest extent permitted by Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, but not any deposits
held in a custodial, trust or other fiduciary capacity), at any time held by,
and other Indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender
agrees promptly to notify the Borrowers and the Administrative Agent after any
such set off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Administrative Agent and each Lender under this Section 11.10
are in addition to other rights and remedies (including other rights of setoff)
that the Administrative Agent and such Lender may have. Notwithstanding anything
herein or in any other Loan Document to the contrary, in no event shall the
assets of any Foreign Subsidiary that is not a Loan Party constitute security,
or shall the proceeds of such assets be available for, payment of the
Obligations of any Borrower or any Domestic Subsidiary, it being understood that
(a) the Equity Interests of any Foreign Subsidiary that is not a Loan Party do
not constitute such an asset and (b) the provisions hereof shall not limit,
reduce or otherwise diminish in any respect each Borrower's obligation to make
any mandatory prepayment pursuant to Section 2.05(b)(ii).
137
Section 11.11. Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under any Loan Document shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If any 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 such Borrower. In determining whether the
interest contracted for, charged, or received by an Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
Section 11.12. Counterparts. This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Delivery by telecopier of an executed counterpart of a signature
page to this Agreement and each other Loan Document shall be effective as
delivery of an original executed counterpart of this Agreement and such other
Loan Document. The Agents may also require that any such documents and
signatures delivered by telecopier be confirmed by a manually signed original
thereof; provided that the failure to request or deliver the same shall not
limit the effectiveness of any document or signature delivered by telecopier.
Section 11.13. Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of any Agent or any Lender in any other
Loan Document shall not be deemed a conflict with this Agreement and subject, in
the case of Letter of Credit Applications, to the last sentence of Section
2.03(b)(i). Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
Section 11.14. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any Lender
or on their behalf and notwithstanding that any Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
Section 11.15. Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be
138
affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 11.16. Tax Forms. (a)(i) Each Lender and Agent that is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code
(each, a "FOREIGN LENDER") shall deliver to the Borrowers and the Administrative
Agent, on or prior to the date which is ten Business Days after the Closing Date
(or upon accepting an assignment of an interest herein), two duly signed,
properly 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, United States withholding tax on all payments to be made to such
Foreign Lender by the Borrowers or any other Loan Party pursuant to this
Agreement or any other Loan Document) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrowers or any other Loan Party pursuant to this Agreement or any other Loan
Document) or such other evidence reasonably satisfactory to the Borrowers 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, and in the case of a Foreign Lender
claiming such an exemption under Section 881(c) of the Code, a certificate that
establishes in writing to the Borrowers and the Administrative Agent that such
Foreign Lender is not (i) a "bank" as defined in Section 881(c)(3)(A) of the
Code, (ii) a 10-percent shareholder within the meaning of Section 871(h)(3)(B)
of the Code, or (iii) a controlled foreign corporation related to the Borrowers
with the meaning of Section 864(d) of the Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the Borrowers and
the Administrative Agent such additional duly and properly completed and signed
copies of one or more of such forms or certificates (or such successor forms or
certificates 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 reasonably satisfactory to
the Borrowers 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 Borrowers or other Loan Party pursuant to
this Agreement, or any other Loan Document, in each case, (1) on or before the
date that any such form, certificate or other evidence expires or becomes
obsolete, (2) after the occurrence of any event requiring a change in the most
recent form, certificate or evidence previously delivered by it to the Borrowers
and the Administrative Agent and (3) from time to time thereafter if reasonably
requested by the Borrowers or the Administrative Agent, and (B) promptly notify
the Borrowers and the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction.
(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 Loan Documents (for
example, in the case of a typical participation by such Foreign Lender),
shall deliver to the Borrower and the Administrative Agent 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 Borrower or the Administrative Agent
(in either case, in the reasonable exercise of its discretion), (A) two
duly signed, properly completed copies of the forms or statements required
to be provided by such
139
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, properly 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
or any indemnity payment under Section 3.01 to (A) any Foreign Lender with
respect to any Taxes required to be deducted or withheld on the basis of
the information, certificates or statements of exemption such Lender
transmits pursuant to this Section 11.16(a), (B) any Foreign Lender if such
Foreign Lender shall have failed to satisfy the foregoing provisions of
this Section 11.16(a), or (C) any U.S. Lender if such U.S. Lender shall
have failed to satisfy the provisions of Section 11.16(b); provided that if
such Lender shall have satisfied the requirement of this Section 11.16(a)
or Section 11.16(b), as applicable, on the date such Lender became a Lender
or ceased to act for its own account with respect to any payment under any
of the Loan Documents, nothing in this Section 11.16(a) or Section 11.16(b)
shall relieve the Borrower of its obligation to pay any amounts pursuant to
Section 3.01 in the event that, as a result of any change in any applicable
Law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such 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 Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.
(iv) The Administrative Agent may deduct and withhold any taxes
required by any Laws to be deducted and withheld from any payment under any
of the Loan Documents.
(b) Each Lender and Agent that is a "United States person" within the
meaning of Section 7701(a)(30) of the Code (each, a "U.S. LENDER") shall deliver
to the Administrative Agent and the Borrower two duly signed, properly completed
copies of IRS Form W-9 on or prior to the Closing Date (or on or prior to the
date it becomes a party to this Agreement), certifying that such U.S. Lender is
entitled to an exemption from United States backup withholding tax, or any
successor form. If such U.S. Lender fails to deliver such forms, then the
Administrative Agent may withhold from any payment to such U.S. Lender an amount
equivalent to the applicable backup withholding tax imposed by the Code and the
Borrower shall not be liable for any additional amounts with respect to such
withholding.
(c) If any Governmental Authority asserts that the Borrower or 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
Foreign Lender or U.S. Lender, such Foreign Lender or U.S. Lender shall
indemnify the Borrower and the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
140
payable to the Borrower and the Administrative Agent under this Section 11.16,
and costs and expenses (including Attorney Costs) of the Borrower and the
Administrative Agent. The obligation of the Foreign Lenders or U.S. Lenders,
severally, under this Section 11.16 shall survive the termination of the
Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
Section 11.17. Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER,
HOLDINGS, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER,
HOLDINGS, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO.
Section 11.18. Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.18 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
Section 11.19. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and Holdings and the Administrative
Agent shall have been notified by each Lender, Swing Line Lender and the L/C
Issuer that each such Lender, Swing Line Lender and the L/C Issuer has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, each Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders except as permitted by Section 7.04
141
Section 11.20. USA Patriot Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
Section 11.21. Waiver Of Notice Period Under Wachovia Credit Agreement.
Each Lender that is also a lender party to the Wachovia Credit Agreement (a
"WACHOVIA AGREEMENT LENDER") hereby waives (i) any requirement pursuant to
Section 2.05 of the Wachovia Credit Agreement that five Business Days notice be
given of a voluntary prepayment and termination of the Aggregate Commitments (as
defined therein) pursuant to such Section; provided that such prepayment is made
on the Closing Date and (ii) any "Default" or "Event of Default" (as defined
therein ) that would otherwise occur as a result of the issuance of the FNF Note
and the incurrence and maintenance of Indebtedness (as defined therein) under
the FNF Note; provided that such FNF Note is repaid in full by not later than
the time required by Section 7.03(z). The waiver granted pursuant to clause (ii)
above shall be effective for any Wachovia Agreement Lender from and after the
date of receipt by the Administrative Agent of a counterpart of this Agreement
executed by such Wachovia Agreement Lender whether or not this Agreement has
otherwise become effective in accordance with its terms.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
142
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FIDELITY NATIONAL
INFORMATION SOLUTIONS, INC.
By:
------------------------------------
Name:
Title:
FIDELITY NATIONAL TAX
SERVICE, INC.
By:
------------------------------------
Name:
Title:
FIDELITY NATIONAL
INFORMATION SERVICES, INC.
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT, COLLATERAL
AGENT, SWING LINE LENDER AND L/C
ISSUER AND AS A LENDER
By:
------------------------------------
Name:
Title:
[OTHER LENDERS]
By:
------------------------------------
Name:
Title:
